Remanded

Nizar Ahammed v. State of Kerala

Kerala HC2 Dec 2016Crl.MC/5708/2016

Case brief

AI extract

What is this about?

The High Court of Kerala held that since the petitioner appeared and showed cause, it was mandatory for the Sub Divisional Magistrate to conduct an enquiry under Section 137 CrPC to determine if the denial of public right was bona fide. The Court found no reason to interfere with the conditional order at that stage and directed the Magistrate to proceed in accordance with the law.

What did the court decide?

This petition is disposed of directing the Sub Divisional Magistrate to proceed in accordance with law as observed within 4 months.

Nizar Ahammed Vs State of Kerala — Landlord and Tenant | 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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FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938

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Crl.MC.No. 5708 of 2016 ()

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(AGAINST THE ORDER IN MC NO.7/2015 of SUB.DVL.MAGISTRATE,KOLLAM)

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PETITIONER/COUNTER PETITIONER:

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NIZAR AHAMMED S/O.SHAHUL HAMEED RAWTHER, MOTTAVILAVEEDU, THALACHIRA, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SRI.ANCHAL C.VIJAYAN

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RESPONDENTS/STATE AND 1ST PETITIONER IN THE M.C:

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1. STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN: 682 031.

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2. P.C.SAMUEL PLAVILA PUTHENVEEDU, VAYAKKAL, VALAKOM VILLAGE, KOTTARAKKARA TALUK, PIN: 691 532.

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BY PUBLIC PROSECUTOR SRI.T.R.RENJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5708 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES

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-------- ANNEXURE	------ A	--------- TRUE COPY OF SALE DEED NO.2299/2005 DATED 30/7/2005 OF ADDITIONAL SUB REGISTRY, KOTTARAKKARA.
ANNEXURE	B	TRUE COPY OF THE PLAINT IN OS NO.385/2014 OF MUNSIFFS COURT, KOTTARAKARA.
ANNEXURE	C	TRUE COPY OF THE AFFIDAVIT AND PETITION - I.A NO.2613/2014 IN OS NO.385/2014 ON THE FILES OF MUNSIFFS COURT, KOTTARAKARA
ANNEXURE	D	TRUE COPY OF THE ORDER IN I.A NO.2613/2014 IN O.S NO.385/2014 ALONG WITH THE ENDORSEMENT TO SHOW THE SERVICE OF THE ORDER TO THE RESPONDENTS IN THE I.A
ANNEXURE	E	TRUE COPY OF I.A NO.2614/2014 IN OS NO.385/2014 ON THE FILES OF MUNSIFFS COURT, KOTTARAKARA.
ANNEXURE	F	TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER ALONG WITH ROUGH SKETCH OF THE PROPERTY
ANNEXURE	G	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT IN OS. NO.385/2014
ANNEXURE	H	TRUE COPY OF THE PETITION DATED 1/7/2014 SUBMITTED BY THE RESIDENTS OF VAYAKKAL - MUTTAVILA JUNCTION
ANNEXURE	I	TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, VALAKOM TO THE TALUK OFFICE, KOTTARAKKARA DATED 9/7/2014
ANNEXURE	J	TRUE COPY OF THE REPORT OF THE ADDITIONAL TAHASILDAR,KOTTARAKARA NO.B10-15207/14 DATED 22/8/2014
ANNEXURE	K	TRUE COPY OF THE ORDER DATED 20/1/2015 IN M.C NO.7/2015 OF SUB DIVISIONAL MAGISTRATE COURT, KOLLAM
ANNEXURE	L	TRUE COPY OF THE APPLICTION SUBMITTED BY THE PETITIONER BEFORE THE SUB DIVISIONAL MAGISTRATE COURT, KOLLAM IN M.C NO.7/2015

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RESPONDENT(S)' ANNEXURES -----------------------

NIL

/TRUE COPY/

VPS PS TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

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----------------------------------------

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Crl.M.C. No.5708 of 2016

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-----------------------------------------

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Dated this the 2^nd day of December, 2016

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O R D E R

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1.The petitioner herein, the counter petitioner in M.C. No.7 of 2015 on the file of the Sub Divisional Magistrate, Kollam. He challenges the Conditional order passed by the learned Magistrate by which the petitioner has been called upon to appear before the said officer on 28.1.2015 at 11 p.m., and to show cause why a pathway obstructed by him shall not be restored .

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2.The learned counsel appearing for the petitioner would submit that in respect of the same subject matter, the petitioner had instituted O.S.No.385 of 2014 before the Munsiff Court, Kottarakkara and the court below as per Annexure-D order has granted the relief of injunction in his favour.According to the learned counsel, no public right is involved attracting Section 133 of the Code. It is

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Crl.M.C.5708/2016 2

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urged that a conditional order has been passed without arriving at the requisite subjective satisfaction. In order to buttress his submissions, reliance is also placed on the decision of this Court in Sakunthala P. and others v. K.O.Narayanankutty and others [2009 (3) KHC 849] and that of the Apex Court in Suhel Khan Khudyarkhan and anr. V. State of Maharashtra and other [2009 (3) KHC 555].

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3.The learned public prosecutor would however refute the submissions and submit that only a conditional order has been passed under Section 133 of the Cr.P.C. Referring to Annexure L ,it is pointed out that the petitioner has already filed his counter statement and he can very well raise all his contentions before the before the Court below .There is no reason to interfere at this stage is the submission .

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4.I have considered the rival submissions and I have gone through the materials on record.

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Crl.M.C.5708/2016

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5.It is evident that the petitioner herein has entered apperance on summons and has filed a detailed counter statement before the 1^st respondent and has sought for vacating the conditional order. When the petitioner herein has appeared and showed cause, a duty is cast on the Sub Divisional Magistrate to conduct enquiry under Section 137 of the Code and record a finding as to whether the denial of public right is bona fide or not and if the Sub Divisional Magistrate is satisfied that the denial is bona fide and dispute has to be considered by approaching the Civil Court, then the Sub Divisional Magistrate has to pass orders dropping the proceedings and relegating the parties to get their right declared through competent Civil Court. But if the Sub Divisional Magistrate is satisfied that the denial is not bona fide, then he will have to proceed under Section 138 of the Code giving opportunity to the petitioner before the Court below to adduce evidence as though it is a summons case and it is on the basis of

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Crl.M.C.5708/2016 4

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evidence that the Sub Divisional Magistrate has to consider as to whether the conditional order has to be confirmed or to be modified or the proceedings will have to be dropped. [See Abraham Thomas V State of Kerala and Another 2016 (1) KLT 911 ; Annakody V State of Kerala and Others 2015 (4) KLT 757]

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6.When such remedies are open to the petitioner , I find no reason to interfere with the conditional order passed by the learned Magistrate at this stage.

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7.In that view of the matter, this petition is disposed of directing the Sub Divisional Magistrate to proceed in accordance with law as observed above. Orders shall be passed expeditiously, at any rate, within 4 months from the date of production of a copy of the order .

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Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Nizar Ahammed v. State of Kerala

Case brief

What is this about?

What did the court decide?

Nizar Ahammed v. State of Kerala

Case brief

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What did the court decide?

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