Kerala High Court
Narendranath C vs State Of Kerala on 14 December, 2010
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30397 of 2009(Q)
1. NARENDRANATH C., AGED 51 YEARS,
... Petitioner
2. MOHAN KUMAR, AGED 53 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE TAHSILDAR,
3. THE VILLAGE OFFICER,
4. SMT.JAMEELA BEEVI,
For Petitioner :SRI.P.HARIDAS
For Respondent :SRI.SUNIL NAIR PALAKKAT
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/12/2010
O R D E R
P.S.GOPINATHAN, J.
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W.P.(C) No.30397 OF 2009
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Dated this, the 14th day of December, 2010
J U D G M E N T
~~~~~~~~~~~ Assailing Ext.P4 order issued by the 2nd respondent, this Writ Petition was filed under Article 226 of the Constitution of India. Ext.P4 appears to have been issued under Section 133(1)(a) of the Code of Criminal Procedure. Though Section 133(1) Cr.P.C. Mandates only a conditional order, Ext.P4 reads as if a final order. Going by Ext.P4, it appears that the said order was issued by the 2nd respondent in pursuance of a petition filed by the 4th respondent and on the basis of a report of the Kalayapuram Village Officer. The main grievance of the petitioner is that before issuing Ext.P4 he was not heard and if at all the 4th respondent had got any right it is only in respect of a private pathway and not on a public pathway and that the dispute is of a civil nature over which the 2nd respondent has no jurisdiction and that even if the writ petitioner had obstructed any public pathway the 2nd respondent should have issued only a conditional order as contemplated under Section 133(1) of the Code of Criminal W.P.(C)No.30397/2009
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Procedure.
2. Having heard the learned counsel appearing for the petitioner, Sri.P.Haridas, and the learned Government Pleader, I find merit in the submission. Even if it is assumed that the petitioner had blocked any public pathway, the exparte order that should have been issued is a conditional order as contemplated under Section 133(1) of the Code of Criminal Procedure giving an opportunity to the writ petitioner to show cause for not enforcing the order and in the event the petitioner shows any cause for not enforcing it, the matter should have enquired under Section 137 and 138. In this way the order impugned is erroneous. It is submitted that the writ petitioner had already filed detailed objection before the 2nd respondent. In the above circumstance, taking into account of the nature of the dispute, I find that the grievance of the petitioner can be redressed by directing the 2nd respondent to conduct an enquiry u/s 138 Cr.P.C. after treating Ext.P4 order as a conditional order and to dispose the complaint filed by the 4th respondent. W.P.(C)No.30397/2009
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3. The result, this Writ Petition is disposed directing the 2nd respondent to conduct an enquiry as contemplated under chapter XB of the Code of Criminal Procedure to dispose the petition filed by the 4th respondent within three months. Ext.P4 shall be treated as a conditional order. In case the writ petitioner had not already filed objections, that shall be filed within two weeks from today. No order as to costs.
(P.S.GOPINATHAN, JUDGE) ps