FRANCIS J.PAINADATH Vs. E.P.POULOSE

JUDGEMENT

(1.) Alleging obstruction caused on the way to his house by the revision petitioner herein, the first respondent filed a complaint before the Revenue Divisional Officer, Fort Kochi under Section 133 of the Code of Criminal Procedure (for short the 'Cr.P.C.'). On the basis of the report received from the Village Officer, the Revenue Divisional Officer passed a provisional order against the revision petitioner on 03/08/2013. On getting copy of the said order, the revision petitioner entered appearance before the Revenue Divisional Officer and filed objection that the way claimed by the first respondent herein is not in fact a public way, and that he has not in fact made any obstruction as alleged. The Sub Divisional Magistrate posted the matter for hearing on 29/11/2013 and thereafter on 17/01/2014. On the ground that the revision petitioner herein did not produce any document to prove that the disputed pathway is not a 'poramboke vazhi', the Sub Divisional Magistrate passed final order under Section 138 Cr.P.C. on 24/01/2014, directing the revision petitioner herein to remove the alleged obstruction from the way to the house of the first respondent. The said order is under challenge in this revision.

(2.) On hearing both sides, and on a perusal of the case records including the impugned order I find that the application received under Section 133 Cr.P.C. was not properly dealt with and decided by the Sub Divisional Magistrate. For exercise of jurisdiction by an Executive Magistrate on a complaint received under Section 133 Cr.P.C., the dispute must involve some public right or public way, or any way being used by members of public. That it is a 'poramboke land' will not give jurisdiction to the Executive Magistrate to exercise jurisdiction under Section 133 Cr.P.C. The very complaint filed by the first respondent herein before the RDO will show that the dispute is in fact regarding the way to his house. In the objection statement filed by the revision petitioner, he has specifically contended that it is not a public way, or a way being used by the members of public.

(3.) When a complaint is received under Section 133 of the Cr.P.C., the Executive Magistrate will have to consider whether the complaint is regarding any public way or public right. Right of user as right of easement or public easement or customary easement will not come within the jurisdictional powers of the Executive Magistrate. When the respondent appears in such a proceeding on getting provisional order, the Executive Magistrate will have to ascertain whether the alleged public way or public right is denied by the respondent. If existence of public way or public right as such is not denied, the Executive Magistrate will have to decide whether there is any obstruction on the way, as alleged. If he finds any obstruction, it can be ordered to be removed. But in a case where public right or public way as such is denied by the respondent, the Executive Magistrate will have to direct the respondent to produce some material in support of his claim, that there is no such public way or public right. The Executive Magistrate will have to conduct a proper and legal enquiry as provided under the law, and during such an enquiry he will have to record evidence as is done in a summons trial. If the dispute does not involve any public right or public way, the Executive Magistrate cannot exercise jurisdiction, and if he finds on enquiry that there is something in support of denial of public right, he will have to stop the proceedings, and the dispute will have to be adjudicated and decided by the competent civil court.