MANI MATHAI Vs. UTHUPPU

JUDGEMENT

(1.) Counter petitioners 1 to 5 in M. C. 19 of 1981, on the file of the Sub Divisional Magistrate, Muvattupuzha, are the revision petitioners before me. On the application of the first respondent, the Sub Divisional Magistrate initiated proceedings under S.133(1) of the Code of Criminal Procedure, hereinafter referred to as 'the Code'. The subject matter of the proceedings is a pathway, which was claimed by the respondent to be a public pathway; but contended by the petitioners to be their private property.

(2.) By the preliminary order, the revision petitioners were directed to remove the obstruction to the public pathway within a specified period or to appear and show cause why the order should not be enforced. Pursuant to that notice, the counter petitioners (petitioners before this Court) entered appearance and filed written statement denying the existence of a public pathway. They have also filed a schedule of witnesses.

(3.) What the Magistrate had to do thereafter was to conduct a preliminary inquiry under S.137(1) of the Code. That is intended only for the purpose of deciding whether the denial of the public right is bona fide or not. Presumably in such an enquiry the Magistrate examined the first petitioner (1st respondent before the Magistrate) in part. Turn of events started then. In the box, first petitioner said he has no objection in the Magistrate having a local inspection to settle the dispute. It is also seen that both sides put in writing that they have no objection in the matter being settled by the Magistrate conducting a local inspection. Contention of the petitioners is that such a suggestion did not originate from the parties and they only agreed to the suggestion that came from the Magistrate. That contention seems to be probable in the circumstances. The subsequent conduct of the Magistrate further probabilities that conclusion.