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2025 Supreme(Online)(Ker) 46585
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. V. BALAKRISHNAN, J
HAMEED S/O.MEERAN, PADINJARECHALIL, IRAMALOOR P.O., NELLIKUZHI,KOTHAMANGALAM – Appellant
Versus
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA – Respondent
CRL.REV.PET NO. 654 OF 2017
For the Appellants/Petitioners: SRI.P.C.ANIL KUMAR, SRI.ELDHOSE ELIAS, SHRI.T.M.SUDHEER
For the Respondents: SRI.PEEYUS A.KOTTAM, MAYA.M.N(PP)
Mandatory inquiry required under Section 137 of Cr.P.C. when public right is denied before making an absolute order.
Headnote:(A) Criminal Procedure Code, 1973 - Sections 133, 137, and 138 - Revision petition challenging the order regarding encroachment of a public pathway - Court found that no inquiry was conducted as mandated under Section 137, leading to the conclusion that the order was unsustainable. (Paras 3, 4)
(B) Necessity of Inquiry - The court emphasized the mandatory nature of conducting an inquiry when public right is denied before making a conditional order absolute. (Para 4)
Facts of the case:
The dispute arose concerning a pathway claimed to be private property by the petitioner, who argued that proper inquiry was not conducted regarding public access.
Findings of Court:
The lack of inquiry undermined the validity of the absolute order on the pathway’s status.
Issues: The validity of the order in light of the claimed right to the pathway and proper procedural adherence.
Ratio Decidendi: The court held that without an inquiry into the existence of public right, the order could not be maintained, affirming the importance of procedure in property rights cases.
Result: Revision petition allowed, order set aside.
| Table of Content |
|---|
| 1. challenge to encroachment order (Para 1 , 2) |
| 2. claim of private property vs public right (Para 3) |
| 3. mandatory inquiry requirement for public rights (Para 4) |
ORDER
This criminal revision petition is filed challenging Annexure A4 order dated 20.05.2017, passed by the 2nd respondent under Section 138 of Cr.P.C.
2. The facts, which are necessary for the disposal of this criminal revision petition, are as follows;
The 3rd respondent herein preferred Annexure A1 petition dated 16.07.2016 before the 2nd respondent alleging that the revision petitioner has encroached the 'Thondu Vazhi' and is obstructing her from using it in accessing her property. Consequently, Annexure A2 conditional order was passed by the 2nd respondent under Section 133 of Cr.P.C directing the revision petitioner to restore the 'Thondu Vazhi' or to appear before him and show cause as to why the afore order cannot be made absolute. Thereupon, the revision petitioner filed Annexure A3 objection disputing the claim of the 3rd respondent and the 2nd respondent, after considering the materials on record, passed Annexure A4 order on 20.05.2017, making Annexure A2 conditional order absolute.
2. There is no representation for the revision petitioner and the 3rd respondent. Heard the learned Public Prosecutor. Perused the records.
3. The prime contention seen raised in this revision petition is that the disputed way is not a public pathway, but is a private property of the revision petitioner. It is also contended that even though an objection was raised on this ground, the 2nd respondent did not conduct an enquiry as contemplated under Section 137 of Cr.P.C, to ascertain whether there exists any public right.
4. The records show that as per Annexure A4 order, the 2nd respondent has made absolute Annexure A2 conditional order and has directed the revision petitioner to restore the 'Thondu Vazhi' for usage of to the 3rd respondent. A perusal of Annexure A3 objection filed by the revision petitioner before the 2nd respondent shows that he has specifically raised a contention that the disputed pathway is a private property and that the dispute is a property dispute. It is also contended that there is no public element in it. The records goes to show that even though the revision petitioner has denied the existence of a public right in respect of the way in dispute, no enquiry has been conducted by the 2nd respondent under Section 137 of Cr.P.C, before proceeding with the matter and passing Annexure A4 order. As per Section 137 of Cr.P.C., it is mandatory on the part of the 2nd respondent, in cases where the existence of the public right is denied, to enquire into the matter before proceeding under Section 138 of Cr.P.C. In the absence of any such enquiry, I have no hesitation to find that Annexure A4 order cannot be sustained.
Ergo, this criminal revision petition is allowed as follows:
Annexure A4 order dated 20.05.2017, passed by the 2nd respondent is set aside and the matter is remitted back to the 2nd respondent for fresh consideration and disposal as per law.
