Kerala High Court
Dr.G.K.Satheesh vs Sub Divisional Magistrate on 6 October, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942
Crl.MC.No.2370 OF 2019(E)
AGAINST THE ORDER/JUDGMENT IN MP 11/2014 OF SUB DIVISIONAL
MAGISTRATE,THALASSERY
PETITIONER:
DR.G.K.SATHEESH, AGED 50 YEARS
S/O KRISHNAYYA, RESIDING AT GOPIKA, CHETTAMKUNNU,
THALASSERY AMSOM, VADIKKAKAM DESOM, THALASSERY TALUK,
KANNUR DISTRICT, PIN- 670 101.
BY ADVS.
SMT.SREEDEVI KYLASANATH
SRI.ACHUTH KYLAS
SRI.R.MAHESH MENON
SRI.DEAGO JOHN K
RESPONDENT/S:
1 SUB DIVISIONAL MAGISTRATE,
THALASSERY, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682 031
2 C.P. SUBAIDA
D/O. HASSAINAR, AGED 41 YEARS,
RESIDING AT KAYEES GHAR, CHETTAMKUNNU,
THALASSERY-670 101
3 M.V. PURUSHOTHAMAN NAMBIAR
S/O. GOPALAN NAMBIAR, AGED 59 YEARS,
RESIDING AT MEETHALE VEEDU HOUSE,
CHETTAMKUNNU, THALASSERY-670 101
4 S.A.P. NASEER,S/O. USMAN, AGED 42 YEARS,
RESIDING AT DHAR SALAM, CHETTAMKUNNU,
THALASSERY-670 101
5 ZAREENA
D/O. YOUSIF. T.K, AGED 39 YEARS,
RESIDING AT ZAM ZAM, CHETTAMKUNNU,
THALASSERY-670 101
6 MARIYU,D/O. T.C. ABOOBACKER,
AGED 55 YEARS, RESIDING AT MARIYAS,
CHETTAMKUNNU, THALASSERY-670 101
Crl.MC.No.2370 OF 2019(E)
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7 V.K. SHAHINA
D/O. ABOOBACKER, AGED 42 YEARS,
RESIDING AT HOUSE NO. 50/262, CHETTAMKUNNU,
THALASSERY-670 101
8 LAILA NASEER
D/O. ABOOBACKER, AGED 35 YEARS,
RESIDING AT PARAKANDY HOUSE, CHETTAMKUNNU,
THALASSERY-670 101
9 K.K. MOHAMMED FAIZAL,
S/O. IBRAHIMKUTTY, AGED 45 YEARS,
RESIDING AT ALI SHUHALI, CHETTAMKUNNU,
THALASSERY-670 101
10 C.O.K. SUBAIDA,
FATHER'S NAME NOT KNOWN, AGED ABOUT 45 YEARS,
RESIDING AT THAHIRA MANZIL, CHETTAMKUNNU,
THALASSERY-670 101
11 A.P.M. MOOSSA,
FATHER'S NAME NOT KNOWN, AGED ABOUT 60 YEARS,
RESIDING AT A.P.M. HOUSE, CHETTAMKUNNU,
THALASSERY-670 101
12 C.O.K. KUNHIMUHAMMED,
FATHER'S NAME NOT KNOWN, AGED ABOUT 55 YEARS,
RESIDING AT MARHABA HOUSE, CHETTAMKUNNU,
THALASSERY-670101
13 C.O.K. SAFIYA,
FATHER'S NAME NOT KNOWN, AGED ABOUT 50 YEARS,
RESIDING AT CHETTAMKUNNU, THALASSERY-670 101
14 VIMALA ANIYERI
W/O. ARUN, AGED ABOUT 50 YEARS,
RESIDING AT AKSHAYA, CHETTAMKUNNU,
THALASSERY, 670 101.
15 ARUN P.
S/O. CHANDU, AGED ABOUT 55 YEARS,
RESIDING AT AKSHAYA, CHETTAMKUNNU,
THALASSERY-670 101
16 M. SHARAFUDHEEN SHAS,
AGED 50 YEARS, RESIDING AT SHAS, CHETTAMKUNNU,
THALASSERY-670 101.
R1 BY ADV. RAMESH CHAND,PUBLIC PROSECUTOR
R2-9 BY ADV. SRI.ASHWIN SATHYANATH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
06.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.2370 OF 2019(E)
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ORDER
Jurisdiction under Section 133 Cr.P.C. was exercised by Sub-Divisional Magistrate to remove obstruction/nuisance caused to a public way by issuing Annexure A3 notice to the obstructor/respondent and subsequently Annexure A6 interim order was passed to proceed further, against which, the obstructor/respondent came up under Section 482 Cr.P.C.
2. It is alleged that the way is not a public way and as such, the Sub-Divisional Magistrate cannot usurp the jurisdiction under Section 133 Cr.P.C. Hence Annexure A3 and A6 are vitiated.
3. To the show cause notice - Annexure A3, the obstructor/respondent has to submit their contentions and claims. No order under Section 138 Cr.P.C. so far passed. The rival claims yet to be adjudicated under Section 138 Cr.P.C. No civil suit initiated by either of the parties. Crl.MC.No.2370 OF 2019(E) 4 Hence, the jurisdiction under Section 482 Cr.P.C. cannot be exercised for quashing the proceedings. For the ends of justice, it is fit and proper to modify Annexure A6 by staying further proceedings for a period of one month from today under Section 357 Cr.P.C., so as to enable the parties to approach the civil court for adjudicating the issue of public way or alleged encroachment/obstruction. If no suit is filed by either of the parties within the said time limit of one month, the Sub-Divisional Magistrate will be at liberty to proceed further with the matter and to adjudicate the issue under Section 138 Cr.P.C.
With the above direction and modification, Crl.M.C. is disposed of.
Sd/-
P.SOMARAJAN JUDGE SPV Crl.MC.No.2370 OF 2019(E) 5 APPENDIX PETITIONERS' EXHIBITS:
ANNEXURE A-1 TRUE COPY OF THE JUDGMENT DATED 29.09,2011 OF MUNSIFF COURT, THALASSERY IN O.S. NO. 70 OF 2009 ANNEXURE A-2 TRUE COPY OF THE COMPLAINT FILED UNDER SEC. 133 OF CODE OF CRIMINAL PROCEDURE NUMBERED AS M.P. NO. 11 OF 2014 ANNEXURE A-3 TRUE COPY OF THE CONDITIONAL ORDER IN M,P. NO. 11 OF 2014 DATED 22.04.2014.
ANNEXURE A-4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN M.P. NO. 11/2014 DATED 04.06.2014 ANNEXURE A-5 TRUE COPY OF THE REPORT OF THE SR.
SUPERINTENDENT IN M.P. NO. 11/2014 DATED 23.03.2015 ANNEXURE A-6 TRUE COPY OF THE INTERIM ORDER IN M.P. NO. 11 OF 2014 DATED 09.09.2015 ANNEXURE A-7 TRUE COPY OF THE JUDGMENT PASSED BY THE COURT OF ADDL.SESSIONS JUDGE, THALASSERY IN CRL. R.P. NO. 32 OF 2015 DATED 21.12.2018.
RESPONDENTS' EXHIBITS:
ANNEXURE R2(A) TRUE COPY OF THE REPORT SUBMITTED BY THE TOWN SURVEYOR DATED 26.07.2013 BASED ON THE DIRECTION OF THE SUB COLLECTOR,THALASSERY DATED 29.04.2013 ANNEXURE R2 (B) TRUE COPY OF THE SKETCH PREPARED BY THE TOWN SURVEYOR ON 26.07.2013 ASCERTAINING THE EXISTENCE OF THE PATHWAY Crl.MC.No.2370 OF 2019(E) 6 THE TOWN PLANNER, KANNUR DATED 21.02.2014 TO THE SUB COLLECTOR, KANNUR POINTING OUT THE ENCROACHMENT AND THE IMMINENT THREAT TO THE PROPERTY OF THE RESPONDENTS 2 TO 9 ANNEXURE R2(D) TRUE COPY OF THE DECREE DATED 29.09.2011 IN OS NO.70/2009 BETWEEN THE PETITIONER AND RESPONDENTS 14 AND 15 //TRUE COPY// PA TO JUDGE