GOPINATHAN P Vs. REVENUE DIVISIONAL OFFICER

JUDGEMENT

(1.) The Writ Petitioner was the respondent in Annexure P1 application dated 8.8.2002 filed by one Udarappan before the respondent Sub -Divisional Magistrate, Tirur under Section 142 Cr.P.C. alleging that the petitioner herein had obstructed the pathway (mscuyO) leading to the property of the said Udarappan as well as to the Kannemkavu Bhagvathy Temple by constructing a permanent wall and barbed wire fence across the pathway. It appears that on 4.9.2002, the respondent, Sub Divisional Magistrate passed a conditional order under Section 133 (1)(a) Cr.P.C. calling upon the petitioner herein to restore the pathway obstructed by him to its original condition on or before 24.9.2002 or to appear before the Magistrate on 24.9.2002 at 3.p.m. and show cause why the conditional order should not be enforced. On 4.1.2003 the petitioner herein filed a counter denying the allegations made by Udarappan and also denying the alleged obstruction on the pathway and contending that the petition under Section 142 Cr.P.C. was filed with a view to settle the personal enmity of some of the committee members of the above temple towards the petitioner herein by making the applicant their tool. Thereafter the matter drifted along aimlessly by the respondent Magistrate calling for reports and himself making a local inspection etc. At page 159 of the files we find the original of Ext. P2 affidavit filed by Udarappan the applicant himself conceding that the above application was filed on account of his personal spite towards the petitioner herein, that as a matter of fact there is no pathway or public ways as alleged in his application, that the alleged way was not being used by him for ingress and engrees to his property and that in the light of the subsequent settlement between him and the petitioner herein he does not wish to prosecute the matter any further or adduce evidence and requested the proceedings to be dropped. Subsequently, Udarappan the person who moved the Sub-Divisional Magistrate also died and thereafter nobody had taken up the cause in Ex.P1 application.

(2.) The grievance of the petitioner is that the proceedings are kept pending endlessly without any culmination for the past more than 8 years and he, therefore, seeks to quash Ext. P1 petition by the said Udarappan.

(3.) I perused the files summoned from the respondent/Sub-Divisional Magistrate. Ext. PI by which Udarappan moved the Sub-Divisional Magistrate itself was a misconceived petition filed under Section 142 Cr.P.C. An injunction contemplated by Section 142 Cr.P.C. can be passed only pursuant to a conditional order passed under Section 133 Cr.P.C. and pending enquiry into the matter and that too to prevent imminent danger of a serious kind to the public warranting immediate intervention by the Sub Divisional Magistrate for the purpose of preservation of the subjection matter of dispute. In Suhelkhan Khuduarkhan and another v. State of Maharashtra and others, 2009 3 RCR(Cri) 36 the Apex Court has reiterated the legal position that an order under Section 142 can be passed only if there is imminent danger or injury of a serious kind to the public so as to warrant immediate measures to prevent such danger or injury. In fact a reading of Section 142 Cr.P.C. coupled with Form No. 22 of II Schedule to Cr.P.C. will clearly indicate that an injunction under Section 142 Cr.P.C. can be issued only pending an enquiry pursuant to the conditional order issued under Section 133 Cr.P.C. As mentioned earlier the jurisdiction of the Magistrate was not invoked by a petition under Section 133 Cr.P.C. The Magistrate was straightaway moved by a petition under Section 142 Cr.P.C. and a conditional order was passed thereafter on 4.9.2002. The respondent Sub Divisional Magistrate was actually proceeding in a preposterous manner by initially entertining a petition under Section 142 Cr.P.C. and thereafter passing a conditional order under Section 133 Cr.P.C. The decision of this Court in Jose v. Tharayil v. Revenue Divisional Officer, Fort Kochi,2010 1 KerLT 518, will go to show that an order of injunction under Section 142 Cr.P.C. can be issued only after the passing of a conditional order under Section 133 Cr.P.C. Apart from the fact that there are reports in the file to indicate that the pathway allegedly obstructed is not a public pathway and that the applicant Udarappan was not having any access to any such pathway for having ingress and engrees to his property, we find the applicant himself filing an affidavit before the Sub Divisional Magistrate to the effect that he filed Ext. P1 application at the instigation of some others and that the allegation made in the said petition was false. In spite of that the respondent Magistrate did not think it fit to drop the proceedings. Instead, the proceedings were being dragged on endlessly to the extreme prejudice of the petitioner herein.