P.V.Thomas vs M.K.Chacko on 23 May, 2009
3. Petitioners who are the respondents before Sub Divisional
Magistrate in proceedings No.B2-1268 of 2008 challenges the legality, regularity
and propriety of order dated 15.12.2008 directing them to restore the water
chal allegedly obstructed by them within thirty days from date of order. Learned
counsel for petitioners submits that it is not clear from the impugned order as to
the provision of law invoked by the Sub Divisional Magistrate and that at any rate
the provisions of Section 133 of the Code of Criminal Procedure (for short, "the
Code") have not been complied. Learned counsel relied on the decision in
Assainar v. Moideenkutty (1999 (1) KLT 196) where it was held that a final order
under Section 138 of the Code can be passed only on the basis of a conditional
order issued under Section 133(1) of the Code. I went through the impugned
order. True, the provision of law invoked is not explicitly stated but considering
the nature of the complaint made by respondent No.1 and the impugned order it
is reasonable to think that the complaint is in respect of alleged obstruction to
the use of a public chal. In the nature of the direction issued in the impugned
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order which is of a final nature, it could only be taken as one coming under
Section 138 of the Code.