Sajeev M.A. v. State of Kerala and Sub Divisional Magistrate, Muvattupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943** **CRL.REV.PET NO. 513 OF 2021** **(AGAINST THE ORDER NO.A2-4582/21 DATED 03.08.2021 OF THE SUB** **DIVISIONAL MAGISTRATE, MUVATTUPUZHA)** ## **REVISION PETITIONER/COUNTER PETITIONER:** **SAJEEV M.A., AGED 40 YEARS S/O. ABDUL KHADAR, MUNDETH HOUSE, KALADY P.O, PIN-683 574, ERNAKULAM DISTRICT, KERALA. BY ADVS. P.N.SANTHOSH MANSOOR.B.H.** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA, MINI CIVIL STATION, P.O. MUVATTUPUZHA, ERNAKULAM, PIN-686 669 SR.PP - SRI. HRITHWIK C.S.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION** **ON 15.11.2021, THE COURT ON 05.1.2022 DELIVERED THE FOLLOWING:** Crl.R.P.No.513 of 2021 2 ## **ORDER** This is a revision filed under Sections 397 and 401 of the Code of Criminal Procedure seeking to quash Annexure-B order of the second respondent, that is the Sub divisional Magistrate, Muvattupuzha. The facts leading to the initiation of proceedings under Section 133 of the Cr.P.C can be stated first. The petitioner is running a quarry, by name Hepta Quarry, in Sy.Nos.492/1 A, 492/1 B/2, 492/4 of Pindimana Village, which is 0.9968 hectors of land. He has obtained all the necessary licences and permits from the departments concerned. However, on 23.06.2021 at 08.a.m, one K.P.Biju who was a labourer in the quarry fell down from a height and sustained grievous injuries and taken to hospital dead. On that basis, a Crime has been registered in Kothamangalam Police Station. Simultaneously proceedings under Section 133(1) of the Cr.P.C was initiated against him and a show cause notice was issued by Annexure A order. In the said order, it was pointed out that the Tahsildar had given a report to the Sub Divisional Magistrate that quarrying was done from the granite quarry without retaining a 'bench' as required under the provisions of law. Granite was quarried at a vertical height Crl.R.P.No.513 of 2021 3 of 100 feet without taking safety measures; there were loose granites and loose soil remaining above, which would fall down at any time causing hazards to the employees working in the site. On the basis of the report of the Tahsildar and also on inspection by the Sub Divisional Magistrate, the entire works in the quarry were directed to be stopped provisionally and he was directed to show cause why the order shall not be made permanent. Annexure-A order was passed on 28.06.2021 2. Thereafter the petitioner, who is the counter petitioner in the proceedings, represented before the 2[nd] respondent through a counsel. He also made himself appear and contended that quarrying is done taking all safety measures, at the time of the incident the said Biju was wearing helmet, safety belt etc. But on enquiry it came out that he was not wearing any such safety helmet or safety belt. On the basis of the enquiries conducted with the counter petitioner and on the basis of the report of the Tahsildar, the Sub Divisional Magistrate came to the conclusion that quarrying was done without following safety measures and thus the order dated 28.06.2021 was made permanent by Annexure-B order. Annexure-B is now under challenge Crl.R.P.No.513 of 2021 4 in revision. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 4. According to the learned counsel for the petitioner, Annexure-B order was passed without following the procedural formalities. All the safety measures were taken by the petitioner. But it was an isolated incident, it is a quarry being run after taking all necessary permits and licences, about 20 families are depending on the works in the quarry. The order was passed without considering the relevant aspects and without following the procedural formalities. The learned counsel also relied on the decisions reported in **Narayana** **Menon v. Sundaribhai [2016 (3) KLT 302], Annakody v. State of Kerala [2015 (4) KLT 757]** and also **Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others [(2005) 9 SCC 36]** . 5. On the other hand, the learned Senior Public Prosecutor opposed the revision. According to him, granites were removed from the quarry at a vertical height of 100 feet without maintaining any bench as required under law, that landslide and crumbling of granites Crl.R.P.No.513 of 2021 5 and stones and earth are inevitable, that one precious life is already lost. Therefore, the order is liable to be upheld. The learned Senior Public Prosecutor also pointed out, referring to Annexure A order that the said Biju was virtually a destitute, he left behind his wife, who is a cancer patient and two children of tender ages of 13 and 11 only, they do not have a place of abode, they are residing in rented premises, that everything was the result of the negligent manner the quarry was run by the petitioner. Even though he claimed that all safety measures were taken, in fact, no such safety measures were taken, the said Biju had fallen from a height of about 100 feet and hit his head at a granite and was taken dead to the hospital. 6. Even though it can be said that it was an isolated incident that had happened in the quarry, there are reasons to believe that the petitioner had undertaken such hazardous works without adopting safety measures as required under the provisions of law governing the subject. At the same time, when a proceeding is initiated under Section 133 of the Cr.P.C. which is made absolute under Section 138(2) of the Cr.P.C., it is peremptory that the Sub Divisional Magistrate followed the procedural mandates as provided under the Crl.R.P.No.513 of 2021 6 code. From Annexure A order it is clear that the preliminary order was passed on 28.06.2021 after making local inspection by the Sub Divisional Magistrate himself. All the same, from Annexure B it cannot be inferred that either the report which led to the registration of the Miscellaneous Case or the report of the Tahsildar was given to the petitioner as required under Section 138 of the Cr.P.C. It goes without saying that when a proceeding is initiated and an order under Section 138 is passed, all the procedural formalities should be complied. From Section 138 of the Cr.P.C., it is necessary that that order should be passed only after affording sufficient opportunity to the party concerned and the proceedings as under Chapter XX of the Cr.P.C. as if it is a summons trial case should be adopted. In other words, even though it is a proceedings civil in nature, still procedure adopted should be one under Chapter XX of the Cr.P.C. It is mandatory that before passing final orders the person concerned should be served with copy of all the materials being relied on by the Sub Divisional Magistrate or the Executive Magistrate for passing the order. Here that has not been done. 7. Secondly, even though Annexure A order indicates that the Crl.R.P.No.513 of 2021 7 Sub Divisional Magistrate himself had visited the spot, we do not know whether any memorandum of inspection was prepared by him. Anyhow, it is very clear that copy of that memorandum, if any, has not been served on the petitioner before passing the Annexure B order. Therefore, before going into the merits of the case, while considering the legality, correctness, and propriety of Annexure B order, it is very clear that procedural formalities have to be complied. An order passed without following the procedure cannot stand judicial scrutiny. For that reason, Annexure B order is liable to be interfered with and I do so. 8. Resultantly, Annexure B order is quashed and the matter is remitted to the Court of the Sub Divisional Magistrate, the 2[nd] respondent who shall consider the case afresh and pass orders after following all the procedural formalities. That shall be done within a period of two months from the date of receipt of a copy of this order. The Criminal Revision Petition is disposed of as above. Sd/- **K.HARIPAL** **JUDGE** Jms/RMV/02.01 Crl.R.P.No.513 of 2021 8 ## **APPENDIX OF CRL.REV.PET 513/2021** **PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE ORDER NO. A2-4582/21 DATED 28.06.2021 ISSUED BY TH 2ND RESPONDENT. Annexure B A CERTIFIED COPY OF THE ORDER NO. A2-4582/21 DATED 03.08.2021 ISSUED BY THE 2ND RESPONDENT.** //TRUE COPY PA TO JUDGE