The Executive Magistrate must follow the prescribed procedure, conduct a proper enquiry, and make a judicious adjudication when a provisional order is objected and serious contest is made.

P. UBAID, J.

1. What is under challenge in this revision is the final order passed by the Sub Divisional Magistrate, Fort Kochi in M.C No.64/13/M on 9.10.2013 in a proceeding initiated under Section 133 Cr.P.C. by the second respondent herein. On the basis of report received from the Deputy Tahsildar, the local Village officer and the Health Inspector, provisional order was passed by the Sub Divisional Magistrate, requiring the revision petitioner herein to take some measures for the abatement of the alleged nuisance. Subsequently, the Sub Divisional Magistrate passed final orders, making the provisional order absolute, and directing the revision petitioner herein to take necessary measures for abatement of nuisance, as directed in the provisional order.

2. On hearing both sides, and on a perusal of the impugned order I find that the impugned order was passed by the Executive Magistrate without complying with the procedure prescribed under the law. It is seen from the order that after passing the provisional order, the matter was taken for hearing on 27.9.2014. On the date the parties appeared, and the matter was posted on 8.10.2013. On that day, the petitioner was not present but her son in law made appearance on her behalf. But the revision petitioner was absent. In such a situation, the Sub Divisional Magistrate straight away passed orders under Section 138 Cr.P.C. This is not at all proper and legal. When a provisional order is objected, and the respondent makes serious contest, denying the alleged public nuisance, the Executive Magistrate will have to conduct a proper enquiry as prescribed under the law, and the Executive Magistrate will have to take a proper decision on judicious adjudication. Here, it appears that the Executive Magistrate simply acted as an Officer of the Revenue, without understanding the scope and nature of her function as Executive Magistrate exercising quasi judicial powers under the code of Criminal Procedure. I hope that the present Executive Magistrate in office will understand the nature of functions, and proceed properly and legally as prescribed under the law. I find that the matter requires reconsideration properly and legally for a just decision. On other occasions also necessary directions were given to the Sub Divisional Magistrate in like proceedings. Still the very same mistake is repeated. I reserve my comments since the Executive Magistrate who passed the orders stands transferred.

In the result, this revision petition is allowed. The impugned order of the court below is hereby set aside, and the matter is remitted to the court below for proper and legal consideration, adjudication and decision as indicated above. The parties will make appearance in the court below on 25.08.2014. The court below is hereby directed to expedite enquiry in the matter, and dispose of the matter within three months from the date of receipt of the records there.