Allowed

K.G. Balakrishnakurup v. State of Kerala

Kerala HC26 Jun 2019Crl.MC/726/2016

Case brief

AI extract

What is this about?

This criminal miscellaneous case concerns a challenge to orders passed by an Executive Magistrate under Section 133 of the Cr.P.C. that restricted revenue officials from issuing receipts for disputed land. The High Court held that Section 133 is intended for public nuisances and cannot be used to correct private land record entries. Consequently, the impugned orders were set aside and quashed.

What did the court decide?

The impugned Orders dated 7.3.2015 and 24.3.2015 passed by the Sub Divisional Magistrate are set aside and quashed.

K.G. Balakrishnakurup Vs State of Kerala — Property and Title | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941

¶5

Crl.MC.No.726 of 2016

¶6

AGAINST THE ORDER NO.A5-531/15 DATED 7.3.2015 AND A-531/2015 DATED 24.03.2015 PASSED BY THE SUB DIVISIONAL MAGISTRATE COURT, THIRUVALLA UNDER SECTION 136 CR.P.C.

¶7

PETITIONERS/OPPOSITE PARTY:

¶8

1 K.G. BALAKRISHNAKURUP (DIED) THELLIYIL HOUSE, (PRANAVAM), NIRANAM VADAKKUM BHAGAM, KADAPRA VILLAGE, THIRUVALLA TALUK-689 621.

¶9

2 K.G JAYAPRAKASH, 57 YEARS, AGED 57 YEARS, PRANAVAM, KADAPRA VILLAGE, NIRANAM NORTH P.O, THIRUVALLA-689621 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BINDU.P, W/O JAYAPRAKASH, PRANAVAM, KADAPRA VILLAGE, NIRANAM NORTH P.O, THIRUVALLA- 689621.

¶10

3 K.G.PRADEEPKUMAR, AGED 54 YEARS, NANDANAM HOUSE, MANNAKARACHIR, KAVUM BHAGOM, THIRUVALLA-689902 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.G. PRASANNA KUMAR, THELLIYIL, NIRANAM NORTH, THIRUVALLA- 689621.

¶11

4 K.G.PRASANNA KUMAR, AGED 52 YEARS THELLIYIL, NIRANAM NORTH, THIRUVALLA-689621.

¶12

5 K.S.PREMALATHA, AGED 49 YEARS, MANAPPALLIL HOUSE, NIRANAM NORTH, THIRUVALLA-689621.

¶13

6 K.SPREETHA B. KURUP, AGED 41 YEARS, K.S. PREETHA B KURUP, D/O LATE K.G. BALAKRISHNA KURUP, PERMANENTLY RESIDING AT A-19, ADHAM, ANUGRAHA LAYOUT, MAHADEVAPURAM POST, BANGALORE- 560048 REPRESENTED BY HER POWER OF ATTORNEY HOLDER K.G. PRASANNA KUMAR, THELLIYIL, NIRANAM NORTH, THIRUVALLA – 689621.

¶14

ADDITIONAL PETITIONERS 2 TO 6 ARE IMPLEADED AS PER ORDER DATED 24.3.2017 IN CRL.M.A. 3092/2017 IN CRL.MC.726/17.

¶15

CRL.MC:726/2016

¶16

¶17

BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)

¶18

RESPONDENTS/STATE/COMPLAINANT:

¶19

1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

¶20

2 THE SUB DIVISIONAL MAGISTRATE, THIRUVALLA-689 601.

¶21

3 THE VILLAGE OFFICER, KADAPRA VILLAGE OFFICE, THIRUVALLA TALUK - 689 621.

¶22

4 DR.M.K.SASIDHARAN PILLAI, AGED 66 YEARS, S/O. LATE KESAVA KURUP, MANAKKU THEKKETHIL HOUSE, IRANAM VADAKKUM BHAGAM MURI, KADAPRA VILLAGE, THIRUVALLA TALUK - 689 621.

¶23

BY ADV. SRI.MVS.NAMBOOTHIRY

¶24

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRL.MC:726/2016

ORDER

The Sub Divisional Magistrate, Thiruvalla, invoking his powers under Section 133 of the Cr.P.C. passed a preliminary order on 7.2.2015 restraining the revenue officials from issuing any receipt or certificate in respect of an item of property having an extent of 4.66 Ares situated within the limits of Kadapra Village. This was based on a complaint lodged before the Executive Magistrate by the party respondents herein, wherein they alleged that the property having an extent of 4.66 Ares was owned by their father Velayudha Kurup Kesava Kurup and they had no occasion to assign the property to any person. According to the party respondents, the name of the petitioner has been wrongly included in the Thandaper Account. The Executive Magistrate duly passed a restraining order. By Annexure-I order dated 7.3.2015, the preliminary order was confirmed and the petitioner was cautioned that he would be prosecuted under Section 188 of the IPC if the order is violated. Thereafter by Annexure-II order dated 24.03.2015, the Executive Magistrate cancelled the entries in the Thandaper Account and it was ordered that fresh entries be made in the name of Velayudha Kurup Kesava Kurup and the party respondents be permitted to remit the tax.

¶29

CRL.MC:726/2016

¶30

¶31

Heard Sri.D.Kishore, the learned counsel appearing for the petitioner, and Sri.M.V.S. Namboothiry, the learned counsel appearing for the party respondent.

¶32

I have considered the submissions advanced and have perused the orders impugned.

¶33

Section 133 of the Cr.P.C. falls under Part-B of Chapter X which deals with the powers of the Executive Magistrate to maintain public order and tranquility. The said chapter deals with public nuisances. Unless it be a public nuisance, Section 133 of the Code cannot be called in aid. To bring in application of Section 133 of the Code, there must be immediate danger to the property and consequential nuisance to the public.

¶34

In the case on hand, the Executive Magistrate has assumed jurisdiction on a purely private dispute between two individuals in respect of certain entries in the revenue records. If, in fact, the entries are incorrect, the aggrieved person has other remedies. A proceeding under Section 133 of the Cr.P.C. cannot be invoked to correct the entries in the registry. It is unfortunate that the Executive Magistrate has initiated proceedings under Section 133 of the Code and had proceeded to pass a final order under Section 138 of the Code by completely ignoring the scope, ambit and intent of the provisions. The

¶35

CRL.MC:726/2016

¶36

¶37

orders impugned cannot be sustained and the same are set aside.

¶38

In the result, this petition will stand allowed. Annexures-I & II orders will stand quashed. If the party respondents have any grievance, they may approach the appropriate authorities or the civil court and seek relief.

¶39

SD/-

¶40

RAJA VIJAYARAGHAVAN V., JUDGE

¶41

KRJ

¶42

//TRUE COPY// P.A. TO JUDGE

CRL.MC:726/2016

APPENDIX

PETITIONER'S/S EXHIBITS:

¶47

ANNEXURE-I TRUE COPY OF THE ORDER NO. A5-531/2015 DT. 07.3.2015 AND ORDER NO. A5-531/2015 DT. 24.3.2015 ISSUED TO THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. ANNEXURE-II TRUE COPY OF THE PROCEEDINGS NO. B16-6478/15 DT. 06.10.2015 OF THE ADDITIONAL TAHSILDAR, THIRUVALLA.

K.G. Balakrishnakurup v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.G. Balakrishnakurup v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rasheed Vs State of Kerala

Muhammedali M., Vs State of Kerala

Asmabi Vs State of Kerala

K.G.Jayaprakash Vs State of Kerala

Krishnaraj Vs State of Kerala

K.J.Paul Vs M.D.Jose