Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 AGAINST THE ORDER/JUDGMENT CRRP 39/2007 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY CRRP 40/2007 OF ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,THALASSERY
PETITIONERS: 1 SYDNEY DENZIL S/O.HENRY TITUS, P.O.NETTUR, THALASSERY. 2 MARY SYAMALA ILLIKUNNU.P.O., P.O.NETTUR, THALASSERY. 3 DEVDAS DAVID 4 MOLLY DEVDAS 5 RENUKA ESTHAR 6 NISHA BABY 7 ANNIE JACOB 8 K.BAICIL HENRY 9 SHYMA BAICIL 10 MINI SHYAM PATTATH 11 ANEESH.R 12 R.M.SAROJINI 13 MAHESH.R 14 R.RAJAN 15 A.SUJATHA 16 SINDHU.M 17 AJITH 18 THANKAMANY 19 C.BHARGAVI 20 MANIKANDAN 21 C.UNNIKRISHNAN 22 P.V.NISHA 23 P.P.SAJNA 24 C.DEVAKI 25 DENIS JACOB BY ADV SRI.C.P.PEETHAMBARAN RESPONDENTS:
1 THE MANAGER, N.T.T.E, P.O.NETTUR, THALASSERY. 2 DIOCESE OF NORTH KERALA CSI DIOCESE OFFICE, SHORNUR, REPRESENTED BY BISHOP RT. REV. DR. GEORGE ISSAC, (NOW REPRESENTED BY BISHOP RT. REV. DR. K.P.KURUVILA) 3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 4 VINITHA GILBERT 5 SHARADHA EDACHERRY 6 LOVELY CATHERINE 7 RENNY.E BY ADVS. SRI.K.MOHANAKANNAN SRI.N.N.SUGUNAPALAN (SR.) SMT.A.R.PRAVITHA SRI.N.N.SUGUNAPALAN SR. SRI.S.SUJIN SRI.VIPIN NARAYAN-PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
=========================== Crl.M.C. No. 2123 of 2013 ============================ Dated this the 28th day of September, 2022
ORDER
This petition filed under Section 482 challenges a common
order dated 15.03.2013 in Crl.R.P. No.39/2007 and Crl.R.P.
No.40/2007 on the files of the Additional Sessions Court, Thalassery. By the impugned order, the Learned Sessions Judge set aside the final order of the Sub Divisional Magistrate, Thalassery, in M.P.No.2/2004, issued in exercise of the powers under Sections 138 and 133 of the Code of Criminal Procedure, 1973 and remanded it for fresh consideration. The learned Sessions Judge directed fresh opportunity to be granted and also directed to consider granting due weightage to the orders of the competent Civil Court produced before it as Exts.B1 and B2.
2. Petitioners claimed that a pathway existed to their properties which were being lawfully used by the public. Initially,
the 1st petitioner alone had filed an application before the Sub Divisional Magistrate and arrayed only the 1st respondent as the opposite party. Subsequently, during the course of the proceedings, supplemental petitioners 2 to 34 were added as petitioners and the 2nd respondent herein as supplemental 2nd counter petitioner before
the learned Magistrate. The learned Sub Divisional Magistrate held
finally under Section 138 of Cr.P.C. that a way used by the public obstructed by the counter petitioners and therefore, directed the said obstruction to be removed.
3. In the revision petition preferred by the opposite parties,
the learned Sessions Judge held that the Sub Divisional Magistrate had erred in reckoning the judgment of the Civil Court in O.S.No.147/1997 of the Munsiff Court, Thalassery and that in A.S.No.63/2001 of the Sub Court, Thalassery, which was filed by the mother-in-law and brothers-in-law of the 1st petitioner. It was also
held that there was violation of the principles of natural justice and
thus the order of the Sub Divisional Magistrate in M.P.No.2/2004 was set aside and remanded.
4. I have heard Shri.C.P.Peethambaran, the learned counsel
for the petitioners, as well as Shri.K.Mohanakannan and Shri.S.Sujin, learned counsel for the 1st and 2nd respondents, apart from Shri.Vipin Narayan, the learned Public Prosecutor, on behalf of the 3 rd respondent.
5. The scheme of Section 133(a) Cr.P.C. requires the
Magistrate to be satisfied that an unlawful obstruction or nuisance is required to be removed from a public place or a way used lawfully by the public. If the existence of aforenoted factors are evident, a conditional order can be issued and the person against whom the
order was made is entitled to appear and object to the said order or
comply with the conditional order. If the person against whom the conditional order was issued appears and denies the existence of the right of any public over the way or place, the Magistrate must enquire into the matter before proceeding under Section 138 and in the said process, if he finds that there is reliable evidence in support of such a denial, then, the Magistrate is bound to stay the proceedings before him, until the question of the existence of such
right is decided by a competent Civil Court. However, if the Learned Magistrate finds absence of any evidence to justify the denial of such a right, then he can proceed under Section 138. The aforesaid procedure is prescribed under Section 137 of the Cr.P.C.
6. Apparently, the alleged title holder of the property over which the way claimed to be allegedly used by the public was not
initially made an opposite party. Therefore, the conditional order
initially issued by the Learned Magistrate was only against a person who was not the actual owner of the property. Later, a revised conditional order was issued on 03.10.2005 consequent to which the 2nd opposite party (2nd respondent) entered appearance and denied the existence of the pathway. Thereafter, the Learned Magistrate issued an order under Section 137 Cr.P.C. on 06.11.2011 and proceeded to consider the matter under Section 138.
7. The learned Sessions Judge has found the procedure
adopted by the Learned Sub Divisional Magistrate to be erroneous, especially since the judgment of the Civil Court in O.S.No.147/1997 of the Munsiff Court, Thalassery and A.S.No.63/2001 of the Sub
Court, Thalassery, were both not considered by the Sub Divisional Magistrate. On an appreciation of the circumstances of the case, I do not find anything irregular or illegal in the impugned order of the Learned Sessions Judge. When the denial of the existence of the public right in a way is raised and when there is reliable evidence in support of such denial, the Magistrate is bound to stay the proceedings until the issue is decided by a competent Court. The judgments of the Civil Court in O.S.No.147/1997 of the Munsiff Court, Thalassery and A.S.No.63/2001 of the Sub Court, Thalassery and its impact had not been considered by the Sub Divisional Magistrate while deciding to proceed under Section 138. The suit was filed by the mother-in-law and brothers-in-law of the 1 st petitioner and initially only the 1st petitioner and 1st opposite party alone were parties to the proceedings. The allegation of denial of right or lawful use by the public was not properly considered by the Magistrate. Therefore, I find that the order of the Learned Sessions Judge is perfectly in order.
8. However, the learned counsel for the petitioners before
this Court contended that the direction of the Sessions Judge to give due weightage to the orders of the competent Civil Court may influence the mind of the Magistrate while re-considering the issue and the same is prejudicial to him. The counsel for the petitioners also contended that the judgment in O.S.No.147/1997 and A.S.No.63/2001, being the judgments in personam, the same cannot have any application while considering the right of public over the alleged way.
9. Learned counsel for respondents 1 and 2, on the other
hand contended that the civil suit was filed by the mother-in-law and brother-in-law of the 1st petitioner and the attempt was only to overcome the binding observations in the said judgment by resort to
proceedings under Section 133 of Cr.P.C. Therefore, the judgment
has a salutary impact upon the contentions raised, especially since there is a finding on the question of title to the property.
10. On an appreciation of the above contentions, I am afraid I cannot agree with the petitioners. The learned Sessions Judge has cautiously used the word ‘due weightage’, which clearly indicates
that ‘to the extent permissible under law’. Therefore, while considering the matter afresh by the Learned Sub Divisional Magistrate, the orders of the Civil Courts cannot be ignored and ought to be considered and given weightage to the extent law permits and in accordance with law. There is nothing improper or irregular in the directions issued by the learned Sessions Judge.
11. Since the remand directed by the Learned Sessions Judge
is an open remand and a fresh disposal has also been directed, I am of the view that the apprehension expressed by the learned counsel for the petitioners is without any basis. Having regard to the aforesaid factors, the Learned Sub Divisional Magistrate, Thalassery is directed to consider and dispose of the matter in accordance with law without further delay. All contentions raised by the counsels for both parties are left open. The Crl.M.C. is disposed of as above.
Sd/- BECHU KURIAN THOMAS JUDGE ssa/ APPENDIX OF CRL.MC 2123/2013
PETITIONERS’ ANNEXURES ANNEXURE A1- TRUE COPY OF THE COMPLAINT (MP NO.2/2004) FILED BY THE IST PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE, THALASSERY. ANNEXURE A2- TRUE COPY OF THE COUNTER FILED BY THE IST RESPONDENT HEREIN BEFORE THE SUB DIVISIONAL MAGISTRATE THALASSERY IN M.P.NO.2/2004. ANNEXURE A3- TRUE COPY OF THE JUDGMENT DATED 30.1.2001 IN O.S.NO.147/1997 ON THE FILE OF MUNSIFF COURT, THALASSERY. ANNEXURE A4- TRUE COPY OF THE ORDER DATED 13.11.2007 IN M.P.NO.2/2004 OF THE SUB DIVISIONAL MAGISTRATE, THALASSERY. ANNEXURE A5- CERTIFIED COPY OF THE COMMON JUDGMENT DATED 15.3.2013 IN CRL.R.P.NOS.39/2007 AND 40/2007 OF ADDITIONAL SESSIONS COURT, THALASSERY.