Kerala High Court
Jaifar vs Thahsildar & Executive Magistrate on 28 January, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.Rev.Pet.No. 1071 of 2024
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2025:KER:7090
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 28TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946
CRL.REV.PET NO. 1071 OF 2024
AGAINST THE ORDER NO.TLK-VKL/1330/2024-C3 DATED 30.09.2024 ON
THE FILE OF EXECUTIVE MAGISTRATE/TAHSILDAR, VARKALA
CMP NO. 1330/2024, SUB DIVISIONAL MAGISTRATE COURT,
THIRUVANANTHAPURAM
REVISION PETITIONER/RESPONDENT:
JAIFAR
AGED 50 YEARS, S/O MUHAMMAD ALIAS,
RESIDING AT MALAVILA POYKA KONATHU VEEDU,
MANAMBOOR VILLAGE, MANANAKU, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 695141
BY ADVS.
M.DINESH
SURESH KUMAR C.G.
RESPONDENTS/STATE & COMPLAINANT:
1 THAHSILDAR & EXECUTIVE MAGISTRATE
VARKALA TALUK OFFICE, VARKALA.P.O.,
THIRUVANANTHAPURAM - 695141,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 SHAMSUDHEEN
AGED 67 YEARS, S/O MUHAMMAD KUNJU,
RESIDING AT NISA MANZIL, MANAMBUR VILLAGE,
MANANAKU, VARKALA TALUK,
THIRUVANANTHAPURAM, PIN - 695141
Crl.Rev.Pet.No. 1071 of 2024
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BY ADVS.
SREELAL N. WARRIER
B.REGHUNANDANAN(R-370)
JINU TREESA JOSE(K/286/2012)
MATHEW J.ELENJICKAL(K/1837/2019)
ALKA WARRIAR(K/001332/2023)
KARAN P.K.(K/003640/2022)
ADITYA S. SAHADEVAN(K/002055/2024)
ADITHYA NARAYANAN K.G.(K/3497/2023)
P.T.GIRIJAN(K/319/1992)
SREEJA V., SR. PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 28.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Rev.Pet.No. 1071 of 2024
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ORDER
This revision petition has been filed challenging the order No.TLK-VKL/1330/2024-C3 dated 30/09/2024 passed by the respondent No.1. The respondent No.2 filed a complaint before the respondent No.1 under Section 152 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'the BNSS') against the revision petitioner. The allegation in the complaint is that the revision petitioner is blocking the public way, which was used by the respondent No.2 and his family members. The respondent No.1 issued a provisional conditional order directing the revision petitioner to restore the public way to its original position and to show cause why the provisional conditional order should not be made absolute. The revision petitioner gave a reply stating that a civil suit is pending between the parties and that the way involved is not a public way. The respondent No.1 directed the Village Officer, Manamboor to Crl.Rev.Pet.No. 1071 of 2024 ..4..
2025:KER:7090 conduct a site inspection. Thereafter, respondent No.1 passed a provisional conditional order directing the revision petitioner to restore the alleged way into its original position. Thereafter, as per the impugned order, the respondent No.1 made the provisional order absolute. It is challenging the said order, this revision petition has been filed.
2. I have heard Sri.M.Dinesh, the learned counsel for the petitioner, Smt.V.Sreeja, the learned Senior Public Prosecutor and Sri.Sreelal N. Warrier, the learned counsel for respondent No.2.
3. Sections 152 to 162 of the BNSS deal with public nuisance. Section 152 specifically deals with the issuance of a conditional order for removal of nuisance by the Sub Divisional Magistrate or Executive Magistrate. Section 152(1) contemplates the issuance of a show cause notice. Section 157 deals with the procedure where a person against whom a conditional order is made under Section 152 appears to show Crl.Rev.Pet.No. 1071 of 2024 ..5..
2025:KER:7090 cause. It specifically says that if the person against whom an order under Section 152 is made appears and show cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. Taking evidence in the matter as in a summons case is stated in Section 277 of BNSS. A reading of the impugned order would show that these mandatory provisions have not been complied with by the respondent No.1. The respondent No.1 did not give an opportunity to the parties to adduce evidence in the matter as in a summons case. That apart, the contention of the petitioner that the way in question is not a public way has not been considered by the respondent No.1, either in the provisional order or in the final order.
4. Hence, the impugned order is not sustainable and accordingly, it is set aside. The respondent No.1 is directed to re-consider the matter, following the procedure contemplated under Section 157 of the BNSS and dispose of it in accordance Crl.Rev.Pet.No. 1071 of 2024 ..6..
2025:KER:7090 with law, within a period of three months from the date of receipt of a copy of this order.
The criminal revision petition is disposed of as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE APA Crl.Rev.Pet.No. 1071 of 2024 ..7..
2025:KER:7090 APPENDIX OF CRL.REV.PET 1071/2024 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE CONDITIONAL ORDER NO.RDOTVM/8990/2022-C DATED 4.6.2024 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM ANNEXURE A2 TRUE COPY OF THE OBJECTION FILED BY THE REVISION PETITIONER BEFORE THE 1ST RESPONDENT DATED 21.6.2024 ANNEXURE A3 TRUE COPY OF THE PLAINT IN O.S. NO.236/2022 ON THE FILE OF THE MUNSIFF COURT, VARKALA DATED NIL ANNEXURE A4 TRUE COPY OF THE ORDER OF INJUNCTION IN I.A. NO.1/2022 IN O.S. NO.236/2022 OF THE MUNSIFF COURT, VARKALA DATED 20.7.2022 ANNEXURE A5 TRUE COPY OF THE I.A. NO.5/2024 IN O.S. NO.236/2022 FOR TRANSPOSING THE REVISION PETITIONER/3RD DEFENDANT AS 2ND PLAINTIFF IN THE SUIT DATED 26.2.2024 ANNEXURE A6 TRUE COPY OF THE PLAINT IN O.S. NO.221/2022 ON THE FILE OF THE MUNSIFF COURT, VARKALA DATED 5.7.2022 ANNEXURE A7 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO.221/2022 ON THE FILE OF THE MUNSIFF COURT, VARKALA DATED NIL RESPONDENT EXHIBITS EXHIBIT R2(a) TRUE COPY OF THE APPLICATION DATED 18.07.2022 FILED BY THE 2ND RESPONDENT BEFORE RDO, THIRUVANANTHAPURAM EXHIBIT R2(b) TRUE COPY OF THE APPLICATION DATED 29.07.2022 FILED BY THE 2ND RESPONDENT BEFORE RDO, THIRUVANANTHAPURAM Crl.Rev.Pet.No. 1071 of 2024 ..8..
2025:KER:7090 EXHIBIT R2(c) TRUE COPY OF THE REPORT SUBMITTED BY VILLAGE OFFICER, MANAMBOOR DATED 01.08.2023 BEFORE VARKALA TALUK OFFICE, THIRUVANANTHAPURAM EXHIBIT R2(d) TRUE COPY OF THE COMMUNICATION DATED 03.08.2023 FROM TAHSILDAR, VARKALA TO SUB COLLECTOR, THIRUVANANTHAPURAM EXHIBIT R2(e) TRUE COPY OF THE COMMUNICATION DATED 19.08.2023 FROM SUB COLLECTOR, THIRUVANANTHAPURAM TO SECRETARY, GRAMA PANCHAYAT, MANAMBOOR EXHIBIT R2(f) TRUE COPY OF THE COMMUNICATION DATED 12.09.2023 FROM SECRETARY, GRAMA PANCHAYAT, MANAMBOOR TO SUB COLLECTOR, THIRUVANANTHAPURAM EXHIBIT R2(g) TRUE COPY OF THE COMMUNICATION DATED 27.09.2023 FROM SUB COLLECTOR, THIRUVANANTHAPURAM TO VILLAGE OFFICER, MANAMBOOR EXHIBIT R2(h) TRUE COPY OF THE REPORT DATED 20.10.2023 OF VILLAGE OFFICER, MANAMBOOR TO SUB COLLECTOR, THIRUVANANTHAPURAM EXHIBIT R2(i) TRUE COPY OF RELEVANT PAGES OF ASSET REGISTER REPORT