Kerala High Court
Mammu vs Sub Divisional Magistrate on 24 July, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935
Crl.Rev.Pet.No. 1721 of 2013 ()
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AGAINST THE ORDER IN CMP 6/2013 of SUB.DVL.MAGI.COURT,
TIRUR DATED 24-07-2013
REVISION PETITIONER(S)/RESPONDENT:
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MAMMU, AGED 42 YEARS,
S/O.MUHAMMADUNNI, KOLOTHUPARAMBIL HOUSE,
VALIIYAKUNNU P O, PIN-676552, IRIMBILIYAM,
MALAPPURAM DIST.
BY ADV. SMT.REENA ABRAHAM
RESPONDENTS/PETITIONERS:
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1. SUB DIVISIONAL MAGISTRATE, TIRUR,
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
KOCHI.
2. ABDULKASIM.
S/O.KUNJIMUHAMMED, KUDAMATHIL HOUSE,
VALIYAKUNNU P O,
IRIMBILIYAM, MALAPPURAM DIST-676552.
R2 BY ADV. SRI.JAMSHEED HAFIZ
R1 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 04-10-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
PETITIONER'S EXHIBITS:
ANNEXURE-1 - CERTIFIED COPY OF C.M.P.NO.6/13 DATED NIL
FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.
ANNEXUREW-II - CERTIFIED COPY OF THE ORDER DATED
28/2/2013 PASSED BY THE 1ST RESPONDENT IN
C.M.P.NO.6/2013.
ANNEXURE-III - CERTIFIED COPY OF OBJECTION FILED BY THE
PETITIONER IN C.M.P.NO.6/2013 DATD 8/5/2013.
ANNEXURE-IV - CERTIFIED COPY OF THE ORDER DATED
24/7/2013 PASSED BY THE 1ST RESPONDENT IN
C.M.P.NO.6/2013.
//true copy//
P.S. to Judge
K. HARILAL, J.
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Crl.R.P. No.1721 of 2013
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Dated this the 4th day of October, 2013
ORDER
The revision petitioner is the respondent in C.M.P.No.6/13 on the files of the Sub Divisional Magistrate, Tirur. The 2nd respondent preferred a complaint before the 1st respondent alleging obstruction of a pathway/ nadavarambu leading to his house. The gist of the allegation is that the revision petitioner had obstructed the 1 Mtr. nadavarambu by reducing the width and hence the 2nd respondent and his family had been prevented from using the nadavarambu.
2. On receipt of the petition, invoking the powers under Sec.133(1)(a) of the Code of Criminal Procedure, an order Crl.R.P. No.1721 of 2013 -: 2 :- dated 28/2/2013 was issued by the 1st respondent directing the petitioner to remove the obstruction caused to the pathway and to restore the previous position of the pathway within a period of 10 days on receipt of the order or to appear and show cause for not enforcing the order. The petitioner entered appearance on receipt of the notice and filed a detailed objection wherein he denied the existence of the public way/public right in respect of the way as provided under Sec.135(b) of the Cr.P.C. The learned Magistrate without considering the objection denying the right of way, passed the impugned order under Sec.133 of the Cr.P.C. This order is under challenge in this revision petition.
3. The learned counsel for the revision petitioner contends that the specific objection raised before the 1st respondent is that the alleged pathway is not a public pathway and a public right is not involved in the disputed issue. According to the revision petitioner, the 2nd respondent is claiming a right of way through his property for which the remedy is not available under Sec.133 of the Crl.R.P. No.1721 of 2013 -: 3 :- Cr.P.C.
4. Per contra, the learned counsel for the 2nd respondent submits that the alleged pathway is a public way and public right is also involved in the issue. The said way is being used as of right by more than seven persons and after considering the rival contentions, the 1st respondent correctly and properly passed the impugned order. At any point of view, the impugned order is justifiable as well as sustainable.
5. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order under challenge. Put it differently, the question is whether the right claimed by the 2nd respondent is a public right of way or not.
6. Going by the impugned order, it could be seen that preliminary order under Sec.133(1)(a) of the Cr.P.C. was issued on the basis a report filed by the Village Officer in Irimbiliyam Village. It is seen that the Village Officer has reported that the pathway was being used by the 2nd respondent and the 2nd respondent has no other way for Crl.R.P. No.1721 of 2013 -: 4 :- ingress and egress to his land. For invoking the jurisdiction under Sec.133 of the Cr.P.C. on a petition alleging obstruction in the pathway, the prime question to be considered is whether a public right is obstructed or not. So, the preliminary issue to be decided is whether the alleged pathway is a public pathway or not. If the way is not a public way, the jurisdiction under Sec.133 of the Cr.P.C. would cease to exist. But in the impugned order, it is seen that neither the Village Officer nor the 1st respondent has arrived at any finding as to this preliminary issue.
7. Therefore, I find that the 1st respondent has to consider the preliminary question whether the alleged way is a public way or a private way. In the absence of a finding on the above issue, this order is liable to set aside and I do so. This matter is remitted back to the 1st respondent for fresh consideration of the question raised above on the basis of the evidence to be adduced by both parties. The parties shall be at liberty to adduce evidence so as to decide the above question. If the alleged way is a public way, then only Crl.R.P. No.1721 of 2013 -: 5 :- the question of obstructions comes into application and the 1st respondent is liable to invoke the jurisdiction under Sec.133 of the Cr.P.C. If it is a private way, the remedy lies else where and it is for the 2nd respondent to work out his remedy. The parties shall maintain status quo till the disposal of the petition afresh in accordance with law.
This revision petition is disposed of as above.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge