PAVITHRAN MADUKKANI Vs. KONJUKOCHU

JUDGEMENT

(1.) There is considerable confusion among the Executive Magistrates dealing with petitions under S.133, Cr. P.C. as to the procedure to be adopted and as to the circumstances in which a preliminary order passed could be made absolute. I feel it necessary to afford guidelines in this behalf in the light of the provisions in the Code and decided cases.

(2.) The petitioners are the B parties in M. C. No. 23 of 1979. The 1st respondent was the A party. Proceedings were initiated before the Sub Divisional Magistrate, Kottayam by toe 1st respondent by a petition dated 8-6-1971 under S.133, Cr. P. C. on the ground that the B parties obstructed a public pathway. On receipt of this petition the learned Magistrate directed the Sub Inspector of Police, Kottayam East Police Station to make a local inspection and to file a report. On the report of the Sub Inspector a preliminary order under S.133 was passed by the Magistrate directing the B parties to remove the obstruction or to appear before that court on 24-8-1979, and to show cause why the order should not be carried out. On 24-8-1979 there was no sitting. B parties No. 1 and 2 appeared before the court on a subsequent date and denied the existence of a public pathway. Thereafter the case was adjourned to seven times. On 26-5-1980 neither the B parties neither counsel were present. The case was adjourned to 16-4-1980. On that day also as on 26-3-1980 neither the B parties nor their counsel were present. No objections were filed by them. Thereupon the learned Magistrate passed an order making the preliminary order passed by him on 1-8-1979 absolute directing the B parties to remove the obstruction within seven days Aggrieved by this order the petitioners filed a revision before the Sessions Court, Kottayam without success. Hence this petition.

(3.) It is apparent that this petition under S.482, Cr. P. C. is in the form of a second revision. Even so I thought it necessary to go into the merits of the contentions put forward by the rival sides for the reason that the approach made by the courts below to the relevant provisions of law is wrong and interference is called for to secure the ends of justice.