RAMAKRISHNAN Vs. K MUSALIKUTTY

JUDGEMENT

(1.) The revision petition is directed against the final order in MP. 11/1983 of the Sub Divisional Magistrate, Ottappalam. The revision petitioner is the respondent in the proceedings initiated under S.133 Crl. PC. for the alleged obstruction caused by the petitioner to a pathway. The respondents 1 to 19 filed a petition before the Sub Inspector of Police, Nattukal, alleging that a public pathway is running through the eastern side of the petitioner's property from south to north and joining the Nattukal-Kottapuram Panchayat road and that the petitioner has obstructed the pathway by putting up a fence. It was alleged that the said pathway was being used by the people of the locality.

(2.) The Sub Divisional Magistrate passed a preliminary order under S.133(a) of the Crl. PC. on 2-8-1983. The petitioner appeared before the court below on 7-9-1983 and denied the existence of a public pathway and the obstruction of the same by the petitioner as alleged by the respondents 1 to 19. The Sub Divisional Magistrate recorded the evidence and finding that there is a public pathway and the same had been blocked made the conditional order absolute by the impugned order dated 16-5-1984. The petitioner being aggrieved has preferred the revision.

(3.) The main contention urged on behalf of the revision petitioner is that the order passed by the Sub Divisional Magistrate is ab initio void because no enquiry whatsoever as contemplated under S.137(1) Crl P.C. was conducted by the court below before proceeding under S.138 of the Code, It is submitted that the petitioner appeared before court on 7-9-1983 on service of the preliminary order and denied the existence of a public pathway and the allegation of the respondents that the disputed pathway is being used by the public, that the learned Sub-Divisional Magistrate after recording the statement of the petitioner posted the case for the evidence of the petitioners without an enquiry as contemplated under S.137(1), the whole proceedings are therefore vitiated and the final order cannot therefore be sustained. The learned counsel for the revision petitioner further submitted that the irregular procedure adopted by the court below is not mere technical omission, that a civil suit has already been filed by the petitioner as O. S.3/1984 before the Court of Munsiff-Magistrate, Mannarghat, for perpetual injunction restraining respondents 1, 3, 4, 8 and 9 herein from entering into or interfering with the fence put up by the petitioner on the southern and northern portion of the petitioner's property touching the eastern compound wall, that an order of ad interim injunction was granted in that suit and serious prejudice is caused to the petitioner by the procedure adopted by the court below. In support of the ground urged the learned counsel for the petitioner relied on the decisions reported in Jaswant Singh v. Jagir Singh ( AIR 1972 P&H 192 ), Bejoy Krishna v. Provash Ranjan (AIR 1959 Calcutta 599), Akulananda v. State ( AIR 1954 Ori. 210 ), Sudhakarn & Another v. Dr. E.M. George and others ( 1972 KLR 471 ), Emperor v. Sarafat Hossain ( AIR 1933 Cal. 790 ), Ayisumma v. Nabeesa Umma ( 1977 KLT 329 ) and Ram Autar v. State of UP. ( AIR 1962 SC 1794 .) It has also been submitted that even on the merits the order cannot be supported because the witnesses examined admit the existence of a pathway on the western side of the petitioner's property and there is no proof for the existence of a public pathway on the eastern side of the petitioner's property and the respondents herein denied that they have signed the petition filed before the S. I. of Police, that even the evidence of the S.I. would not go to show that there had been a pathway in existence as alleged. No mahazar or sketch is proved, no local inspection has been made and there is no sufficient material to warrant the conclusion arrived at by the court below, it is pointed out. It is therefore argued that the order has resulted in gross miscarriage of justice and the same has to be set aside.