Disposed

Thomas v. State of Kerala

Kerala HC28 Jun 2016Crl.MC/419/2016

Case brief

AI extract

What is this about?

High Court directed parties to appear before the Sub Divisional Magistrate to conclude pending proceedings under Section 133 Cr.P.C. after noting that the impugned order was preliminary and residual defects were found amenable to adjudication by the Magistrate.

What did the court decide?

Parties directed to appear before the Sub Divisional Magistrate on 15.07.2016 to conclude proceedings under Section 133 Cr.P.C.; no steps to follow the Magistrate's interim order till then.

Thomas Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938

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Crl.MC.No. 419 of 2016

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MC.8/2016 OF SUB DIVISIONAL MAGISTRATE, KOLLAM, DATED 11-01-2016

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PETITIONER(S)/1ST RESPONDENT IN MC 8/16:

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THOMAS, AGED 63 YEARS, S/O. GEEVARGHESE, RESIDING AT EARATHU PEACE COTTAGE, MARUTHAMANPALLI MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SRI.PRAVEEN K. JOY

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RESPONDENT(S)/STATE/PETITIONERS IN MC 8/16:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 018.

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2. K. BHADRAN, AGED 50 YEARS,

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KARTHIKA BHAVAN, VENKODU, MARUTHAMANPALLI MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT - 691 001.

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3. N. GEETHA, AGED 45 YEARS,

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W/O. BHADRAN, KARTHIKA BHAVAN, KARTHIKA BHAVAN VENKODU, MARUTHAMANPALLI MURI, POOYAPALLY VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT 691 001.

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R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 & 3 BY ADV. SMT.M.S.KIRAN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 419 of 2016

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 THE TRUE COPY OF THE TAX RECEIPT DATED 7-2-2013 OF POOYAPALLY GRAMA PANCHAYATH

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EXT.P2 THE TRUE PHOTOCOPY OF THE PLAINT IN OS 13/16 BEFORE MUNSIFF'S COURT KOTTARAKARA

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EXT.P3 THE TRUE PHOTOCOPY OF THE RECEIPT DATED 31-12-2015 OF POOYAPALLY GRAMA PANCHAYATH

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EXT.P4 THE TRUE PHOTOCOPY OF THE RECEIPT DATED 31-12-2015 OF POOYAPALLY GRAMA PANCHAYATH

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EXT.P5 THE TRUE PHOTOCOPY OF THE RECEIPT DATED 26-11-99 OF POOYAPALLY GRAMA PANCHAYATH

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EXT.P6 THE TRUE PHOTOCOPY OF THE ORDR DATED 11-1-16 IN MC 8/16 OF

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RESPONDENT(S)' EXHIBITS

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R3(A): COPY OF THE COMPLAINT SUBMITTED BY R2 & 3 BEFORE THE SUB DIVISIONAL MAGISTRATE, KOLLAM

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R3(B): COPY OF THE DISABILITY CERTIFICATE OF THE CHILD OF THE RESPONDENTS DATED 20/11/12

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R3(C): COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, POOYAPPALLY DATED 18/12/15 BEFOR THE SUB DIVISIONAL MAGISTRATE

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R3(D): COPY OF THE REPORT SUBMITTED BY THE THAHSILDAR, KOTTARAKKARA DATED 29/12/15.

/ TRUE COPY /

P.S. TO JUDGE

RAJA VIJAYARAGHAVAN, V., J.

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Crl.M.C. No.419 of 2016

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-----------------------------------------Dated this the 28^th day of June, 2016

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O R D E R

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~~~~~~~~

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1.Annexure-6 order is under challenge, in this petition filed under Section 482 of the Code of Criminal Procedure.

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2.A proceeding under Section 133 of the Cr.P.C. was initiated before the Sub Divisional Magistrate, Kollam by the 2^nd respondent herein. His complaint was that paddy land lying adjacent to the property of the 2^nd respondent was reclaimed by the petitioner and a workshop is being conducted in the said property by a person by name Shibu without a license. It was further contended that the trade/occupation carried out in the premises of the petitioner is injurious to the health and physical well being of the community in general and that of the respondent

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Crl.M.C.No.419/2016 -2-

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No.2 and his family members in particular. According to the respondent No 2 he is recovering from a major Motor Vehicle accident and his daughter is mentally retarded.

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3.The complaint was taken on file by the learned Magistrate and a report was called for from the concerned Village officer. It was reported that the property wherein the objectionable trade was being carried on was identified as “Nilam” in the revenue records and the trade was being carried out without a license. Reports were also called for from the Tahsildar concerned.

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4.After affording sufficient opportunity to the concerned parties and after perusing the reports of the revenue authorities, Annexure 6 preliminary order under Section 133 (1) (b) was passed directing the petitioner and the aforesaid Shibu to remove the objectionable workshop from the area in question. They were directed to raise

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Crl.M.C.No.419/2016 -3-

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their objection, if any , to the said order , within 3 days. Parties were also directed to appear before the Sub Divisional Magistrate on 23.01.2016 at 2.30 p.m. for inquiry. On receipt of the said order, the petitioner has rushed to this Court and has preferred this petition.

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5.I have heard the rival submissions. The main contention of the petitioner is that the the learned Magistrate who has passed Annexure-6 order is related to the 2^nd respondent. It is also submitted that a hearing was conducted prior to the passing of the order under Section 133(1)(b) of the Cr.P.C. and therefore the said order has to be considered as a final order.

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6.The counsel appearing for the 2^nd respondent refuted the contentions of the petitioner. According to the learned Counsel, the 2^nd respondent is not related to the Magistrate and furthermore, no interference is warranted

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as the order is preliminary in nature. The petitioner could have raised all his contentions before the Sub Divisional Magistrate is the submission .

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7.I have also gone through Annexure-6 order passed by the Sub Divisional Magistrate. A perusal of the order would make it clear that Annexure-6 is an interim order and it is passed under Section 133(1) (b) of the Cr.P.C. The order that the Magistrate has passed under Section 133 is a conditional order against which opportunity wqas afforded to the petitioner to contest its correctness.

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8.It is also settled that in a proceeding under Section 133 of the Code, the report or other information whereon the Magistrate takes action before making the conditional order is no evidence against the opposite party.

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9.It appears from Annexure-6 that opportunity to show cause was afforded to the petitioner and he was directed

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Crl.M.C.No.419/2016 -5-

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to appear before the Magistrate on 23.1.2016 at 2.30 p.m. In that view of the matter the contention of the petitioner

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that the order impugned is final in nature cannot be accepted . In so far as the contention of the petitioner that the Magistrate is a relative of the 2^nd respondent is concerned, I am of the view that the petitioner ought to have raised this contention when he was directed to show cause on the conditional order .

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10.I do not find any merits in this petition, and the same is only to be dismissed.

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11.However, in the peculiar facts of the instant case, I direct

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the parties to to appear before the Sub Divisional Magistrate in pursuance to Annexure-6 order on 15.7.2016 so as to enable the learned Magistrate to take the proceedings to its logical conclusion after hearing the contentions of the petitioner as well. The petitioner will

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Crl.M.C.No.419/2016 -6-

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be at liberty to produce all records in his possession to substantiate his contentions. It is made clear that if the Sub Divisional Magistrate concerned is in any way related to the 2^nd respondent, necessarily, the said matter shall not be heard by the said Magistrate. The Authority concerned shall strive to dispose of the matter expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this order. No steps shall be taken in pursuance to Annexure-6 order till 15.7.2016.

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The petition is disposed off as above.

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sd/-

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RAJA VIJAYARAGHAVAN, V. JUDGE

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Ps/28/6/16

Thomas v. State of Kerala

Case brief

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Thomas v. State of Kerala

Case brief

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