Allowed

Tholoor Pisharikal Sree Karthiayani Temple Committee v. State of Kerala

Kerala HC4 Sept 2018Crl.MC/4389/2018

Case brief

AI extract

What is this about?

In a petition under Section 482 Cr.P.C., the High Court of Kerala allowed the challenge against a Sub Divisional Magistrate's order in a land dispute. The Court ordered that the magistrate be directed to allow the petitioner an opportunity to adduce evidence and complete proceedings within three months. It also directed the government to issue guidelines on case numbering for Cr.P.C. proceedings.

What did the court decide?

Impugned order set aside; petitioner to be given opportunity to adduce evidence; proceedings to be completed within three months; Government directed to issue guidelines.

Tholoor Pisharikal Sree Karthiayani Temple Committee Vs… — Property and Title | Kerala HC (2018)

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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 K.ABRAHAM MATHEW

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TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940

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Crl.MC.No. 4389 of 2018

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CRRP 7/2018 OF III ADDL. DISTRICT COURT, THRISSUR DATED 28-06-2018

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PETITIONER/S:

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THOLOOR PISHARIKAL SREE KARTHIAYANI TEMPLE COMMITTEE REPRESENTED BY ITS PRESIDENT, P.S.SURESH, AGED 49 YEARS, S/O.SHEKHARAN, PAIKANNIPARAMBIL HOUSE, P.O.THOLOOR, THOLOOR DESAM, THOLOOR VILLAGE, THRISSUR TAALUK, THRISSUR DISTRICT, PIN -680 552.

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BY ADV. SRI. P.G. SURESH

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.

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2 THE SUB DIVISIONAL MAGISTRATE AYYANTHOLE, P.O.AYYANTHOLE, THRISSUR DISTRICT -680002.

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3 THE SUB INSPECTOR OF POLICE PERAMANGALAM POLICE STATION. P.O.PERAMANGALAM, THRISSUR DISTRICT, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.

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Crl.MC.No.4389 of 2018

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..2..

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4 VINCENT

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AGED 45 YEARS, S/O.PORINJU, PUTHIRI HOUSE, VELOOR DESAM, P.O.VELOOR, VELOOR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT -680 601.

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Addl. SECRETARY, THOLOOR GRAMA PANCHAYATH P.O., R5 PARAPPUR, THRISSUR DISTRICT

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_ ADDL.R5 IS IMPLEADED AS PER ORDER DATED 16.07.2018 IN CRL.MA. NO. 7298/2018_*

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BY ADVS. SRI.S.ABHILASH VISHNU SRI. ATHUL SHAJI SRI. P.C. SASIDHARAN SRI. T.A. SHAJI (SR.)

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OTHER PRESENT:

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SRI SANTHOSH PETER PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O R D E R

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Petition filed under Section 482 Cr.P.C.

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2. The petitioner temple is a party to a proceedings initiated by Sub Divisional Magistrate, Thrissur under Section 145 Cr.P.C. Encroaching upon the property allegedly belonging to the fifth respondent local panchayath, the petitioner temple constructed

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Crl.MC.No.4389 of 2018

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..3..

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an arch reducing the width of a public way. By Annexure A5 order the learned Sub Divisional Magistrate accepted the case of the fifth respondent panchayath that the property in which the arch has been put up belongs to it and that the construction has reduced the width of a public way. Accordingly, the Sub Divisional Magistrate directed the petitioner to dismantle and remove the arch. This is challenged.

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3. Heard learned counsel for the petitioner, learned senior counsel for the fourth respondent, learned Standing Counsel for the additional fifth respondent and learned Public Prosecutor.

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4. It is seen from Annexure A5 order that there was a sitting of the Sub Divisional Magistrate on 10.04.2018 to consider the dispute. Another sitting was held on 18.04.2018 on which date the learned magistrate granted one week's time to the petitioner temple to file its objection. Thereafter, the impugned order was passed on 05.05.2018. In the order there is no mention about the contentions in the objection filed by the petitioner. It appears that no evidence was adduced by the petitioner. It is submitted that, that was because there was no posting

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..4..

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Crl.MC.No.4389 of 2018

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for adducing evidence. It appears that there is much weight in the submission of the learned counsel. In these circumstances it is only proper that the petitioner and the respondents concerned are given an opportunity to adduce evidence.

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5. It is seen that when the proceedings were initiated by the magistrate, no case number was assigned to it. Only file number is noted in the impugned order. The proceedings should have been taken on the file of the magistrate as a Miscellaneous Case (MC). In the state no uniform practice is being followed in the proceedings initiated under Section 133 or 145 Cr.P.C. It is proper that the government issue guidelines in this regard.

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In the result, this Crl.M.C. is allowed. The impugned

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order is set aside. The learned Sub Divisional Magistrate is directed to give an opportunity to the parties concerned to adduce evidence by posting the case for enquiry. The proceedings shall be completed within three months from the date of receipt or production of a copy of this order, whichever is earlier.

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The registry is directed to send a copy of this order

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Crl.MC.No.4389 of 2018

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..5..

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to the Law Secretary to the Government to examine the question of issuing guidelines as mentioned in paragraph 5 of this order.

Sd/-

K.ABRAHAM MATHEW

Judge

APPENDIX

PETITIONER'S/S' EXHIBITS:

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ANNEXURE A1 THE TRUE COPY FO THE VILLAGE SURVEY SETTLEMENT REGISTER OF THOLOOR VILLAGE KEPT UNDER THE CUSTODY OF THE VILLAGE OFFICER.

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ANNEXURE A2 THE ROUGH SKETCH SHOWING THE EXISTENCE AND THE LIE OF THE TEMPLE PROPERTY AND DISPUTED PATHWAY INCLUDING THE DESCRIPTION OF THE PANCHAYATH ROAD.

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ANNEXURE A3 THE TRUE COPY OF THE NOTIE DATED 31.3.2018 BEARING NO.D2 4724/18 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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ANNEXURE A4 THE TRUE COPY OF THE OBJECTION DATED 23.4.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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ANNEXURE A5

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THE CERTIFIED COPY OF THE ORDER DATED 5.5.2018 AS PER THE ORDER NO.D2/4724/18 ISSUED BY THE 2ND RESPONDENT.

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Crl.MC.No.4389 of 2018

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..6..

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ANNEXURE A6 THE CERTIFIED COPY OF THE ORDER DATED 28.6.2018 PASSED BY THE HONOURABLE 3RD ADDITIONAL SESSIONS COURT, THRISSUR IN CRL.R.P.NO.7/2018 FILED BY THE PETITIONER.

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BKA/05.09.2018

Tholoor Pisharikal Sree Karthiayani Temple Committee v. State of Kerala

Case brief

What is this about?

What did the court decide?

Tholoor Pisharikal Sree Karthiayani Temple Committee v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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