Single Judge of Kerala HC allowed the Cr.M.C. petition, set aside an impugned order by the Executive Magistrate under Section 133 Cr.P.C. for containin
The impugned order passed by the Executive Magistrate is set aside. The authority below is directed to proceed properly according to law and make legal orders.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 15TH DAY OF DECEMBER 2014/24TH AGRAHAYANA, 1936
Crl.MC.No. 3804 of 2013 ()
AGAINST THE ORDER DT.23.8.2013 AND NUMBERED AS 1162/13 ON THE FILES OF THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM.
PETITIONER/RESPONDENT :
KARIMALA GRANITES & AGGREGATES PVT. LTD., PATHANAD, KANGAZHA P.O., KOTTAYAM-686 541 REPRESENTED BY ITS DIRECTOR.
BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ENOCH DAVID SIMON JOEL
RESPONDENTS/STATE & COMPLAINANT :
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. (THROUGH SUB DIVISIONAL MAGISTRATE KOTTAYAM-686 001).
2. K.R.KUTTAPPAN KARIMALAKUNNEL, KINATTINGAL, KANGAZHA P.O. KOTTAYAM-686 541.
3. K.K.KARUNAKARAN KARIMALA PUTHENPARAMBIL, KANGAZHA P.O. KOTTAYAM-686 541.
4. T.V.PRADEEP THEKKANAL, KANGAZHA P.O., KOTTAYAM-686 541.
5. K.K.SUKUMARAN MARUTHOOLICKAL, KANGAZHA P.O., KOTTAYAM-686 541.
R2-R5 BY ADV. SMT.K.V.BHADRA KUMARI R BY PUBLIC PROSECUTOR, SMT.S.HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3804 of 2013 ()
APPENDIX
PETITIONER(S)' EXHIBITS
ANNEXURE A5 : COPY OF THE PETITION FILED BY THE 5TH RESPONDENT BEFORE THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM.
ANNEXURE A5(A): COPY OF THE PETITION FILED BY THE 2ND RESPONDENT BEFORE THE KERALA STATE COMMISSION FOR SCHEDULED CASTES AND SCHEDULE TRIBES.
ANNEXURE A6 : COPY OF THE OBJECTION DTD.3.7.2013 SUBMITTED BY THE PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM.
ANNEXURE A7 : COPY OF THE REPORT DTD.18.6.2013 ISSUED BY THE VILLAGE OFFICER, KANGAZHA.
ANNEXURE A8 : COPY OF THE ORDER DTD.23.8.2013 AND NUMBERED AS 1162/13 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, KOTTAYAM.
RESPONDENT(S)' EXHIBITS - NIL
//TRUE COPY//
PA TO JUDGE
P.UBAID, J. -------------------------------------Crl.M.C.No.3804 OF 2013
Dated this the 15th day of December, 2014
O R D E R
~~~~~~~
An order passed by the Revenue Divisional Officer, Kottayam, in his capacity as Executive Magistrate, in a proceeding initiated under Section 133 Cr.P.C. is under challenge in this proceeding brought under Section 482 Cr.P.C. Annexure-A5 is the complaint filed by one Sukumaran before the Executive Magistrate. A reading of this complaint shows that his grievance is prominently individual in nature. Any way, the Executive Magistrate proceeded under Section 133 Cr.P.C. and passed an order dated 23.8.2013 in proceeding No.1162/2013. Annexure-A8 is the said order. It is not known definitely whether it is a provisional order passed under Section 133 Cr.P.C or a final order passed under Section 138 Cr.P.C. The last portion of the order shows that it must be a provisional order because, the respondent is required to appear on 4.9.2013 and submit his objections. But, the body of the order shows that the Executive Magistrate had infact conducted enquiry on different dates, examined some witnesses and came
Crl.M.C.No.3804/2013 2
to a finding on public nuisance. If what is issued by the Executive Magistrate is only provisional order, he is not expected to conduct a detailed enquiry at the preliminary stage and come to a definite finding on the allegations made in the complaint. If he has made such an enquiry in detail and has come to a finding at the very preliminary stage itself, the provisional order passed by the Executive Magistrate will become bad and illegal. At the preliminary stage, in such a proceeding, the Executive Magistrate cannot make a definite finding on the merits of the allegations. Since the impugned order indicates at the last portion that it is a provisional order, the aggrieved party cannot file a regular revision against the order. I find that the Executive Magistrate is not definite and certain what order he has passed. The Annexure-A5 complaint shows that what is alleged definitely is not a case of public nuisance. Anyway, those things will have to be properly enquired into by the Executive Magistrate as prescribed under the law. When a complaint alleging public nuisance comes, his preliminary concern must be to think whether the complaint or dispute involves any public nuisance. If he is so satisfied prima facie by some materials, he can issue a provisional order
Crl.M.C.No.3804/2013
3
requiring the other party to make appearance on a day specified by him, and directing him to file objections, if any. If the allegations of public nuisance are infact denied by the other side, the Executive Magistrate will have to conduct a proper enquiry as prescribed under Section 137 Cr.P.C. Only on the basis of such an enquiry conducted properly under the law, including examination of materials or documents and examination of witnesses as is done in a summons trial, the Executive Magistrate can come to a definite finding on the alleged public nuisance, and pass a definite final order. Only such a final order can be enforced under the law. In a proceeding under Section 482 Cr.P.C., this Court can examine those aspects, and this Court can direct proper enquiry and decision if the order passed by the authority is not proper and legal, and also does not show what type of order it is.
Crl.M.C.No.3804/2013
4
to proceed under Section 133 Cr.P.C. The aggrieved party will have to pursue appropriate civil action. Of course, if he finds something involving public nuisance, he can pass a provisional order properly, requiring the other side to make appearance on a day specified by him and file objections, if any. If the other side objects, he will have to conduct a proper enquiry under the law as observed earlier, examine all the necessary materials including documents, examine the witnesses on both sides as is done in a summons trial and come to a definite finding supported by reasoning. He must be aware that his function is judicial in nature. He must also be aware that he has dual functions under the law; one as an officer of the Revenue, and the other as Executive Magistrate, acting under the provisions of the Code of Criminal Procedure. He must act in cases like this, as a judicial authority, and not merely as an executive authority. He must know the scope of his functions as Executive Magistrate in a proceeding brought under Section 133 Cr.P.C. Here I find that the Executive Magistrate is not aware of the scope of his functions and the limits of his authority, as Executive Magistrate. The impugned order cannot be said to be a provisional order because the Executive Magistrate has wrongly come to a finding
Crl.M.C.No.3804/2013 5
at the very preliminary stage itself. This is liable to be set aside, and the Executive Magistrate will have to proceed afresh as indicated above.
In the result, this Crl.M.C. is allowed. The impugned order passed by the Executive Magistrate (Annexure-A8) is set aside and the authority below is directed to proceed properly according to law as indicated above, and make legal orders as indicated above. The parties will appear before the court below on 5.1.2015. This being an old matter, the authority below will make earnest efforts to dispose of the matter within two months from 5.1.2015.
sd/-
P.UBAID, JUDGE.
ps/15/12/2014
//True copy//
PA to Judge
3 issues framed by the court
Whether an order passed by the Executive Magistrate under Section 133 Cr.P.C. which contains a definite finding on merits at a preliminary stage is valid.
Whether the grievance alleged in the complaint falls within the jurisdiction of the Executive Magistrate under Section 133 Cr.P.C. as opposed to individual grievance.
Whether the cr.{page}iminal miscellaneous petition should be allowed to ensure a proper judicial enquiry is conducted by the authority.
KARIMALA GRANITES & AGGREGATES PVT. LTD.
STATE OF KERALA
K.K.SUKUMARAN MARUTHOOLICKAL
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
