V. RAMKUMAR v. State of Kerala

V. RAMKUMAR , J==========================CRL.R.P. NO. 4240 of 2007 ==========================Dated this the 27th day of November, 2007.ORDERThe revision petitioner, who was the 1st applicant before the SubDivisional Magistrate, Kozhikode in M.C. No. 65/2003 alleginginundation of water in his property on account of the obstruction to theroad allegedly caused by the counter petitioner therein, challenges therevisional order passed by the Sessions Court, Kasaragod in Crl.R.P.No. 8/2005. The learned Sessions Judge set aside the order passed bythe Sub Divisional Magistrate for the reason that no enquiry wasconducted under Section 137 Cr.P.C or evidence was recorded underSection 138 Cr.P.C before making the conditional order absolute. 2. The 2nd respondent herein, who was the counter petitionerbefore the Sub Divisional Magistrate, on receipt of the conditionalorder passed under Section 133 Cr.P.C., appeared and filed objectionsdisputing the public nature of the alleged way and he also filedobjection against the conditional order being made absolute. If theopposite party appears and files objections, the Magistrate should notdispose of the case under Section 136 Cr.P.C but should take evidenceand satisfy himself that the order passed by him is reasonable andproper. Even in cases where the opposite party does not pursue his orher objections, the complainant should lead evidence on his side and CRL.R.P. NO. 4240/2007: 2:should not leave the Magistrate to base his order on the materialsplaced before him when the preliminary order was passed. Report ofthe Tahsildar, police or evidence adduced while passing order underSection 133 etc. are not substitutes for taking of evidence underSection 138 Cr.P.C ( See 1974 KLT 591) Even when the opposite partywho denies the alleged right or alleged public nuisance fails to appearat a subsequent stage, the Magistrate cannot make the conditionalorder absolute without taking evidence on behalf of the complainant(See 1968 KLT 889- Ittiathikunjan v. Lakshmikuttiamma and 1961KLT 617- Ambi v. State of Kerala, Sankaran v. Kunjukrishnan.)The burden of proof in an enquiry under Section 138 is on the party atwhose instance the proceedings were initiated (1966 KLT 1100-Balanv. State of Kerala.) It was in violation of the procedural formalitiesthat the Sub Divisional Magistrate made the conditional order absolute. The Sessions Judge has rightly set aside the final order passed inviolation of the procedure established by law. The matter wasremitted to the Sub Divisional Magistrate for proceeding in accordancewith law. I see no reason to interfere with the revisional order passedby the Sessions Judge. This revision is accordingly dismissed. V. RAMKUMAR, JUDGE. CRL.R.P. NO. 4240/2007: 3: