Crl.O.P(MD)No.12125 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20.11.2019

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl.O.P(MD)No.12125 of 2015

and

M.P.(MD)No.1 of 2015

P.Packiyanathan

... Petitioner/Respondent

Vs

1.The Sub Divisional Magistrate

cum Revenue Divisional Officer,

Tirunelveli District,

Tirunelveli.

2.The Tahsildar,

Palayamkottai,

Tirunelveli District,

Tirunelveli.

3.Arumainayagam Samraj

(R3 is impleaded as per the order

of this Court dated 19.02.2016 made

in Crl.M.P.(MD)No.1308/16

in Crl.O.P.(MD)No.12125 of 2015) ... Respondents/Complainants

PRAYER: Petition filed under Section 482 of the Code of Criminal

Procedure, to call for the records in M.C.No.2 of 2015 dated

17.03.2015 and its consequential order dated 30.04.2015 on the file

of the Sub Divisional Magistrate and Revenue Divisional Officer,

Tirunelveli, quash the proceedings.

For Petitioner : Mr.N.Mohideen Basha

For R1 & R2

: Mr.A.Robinson

Government Advocate (Crl.side)

ORDER

The first respondent herein issued a provisional order

against the petitioner on 17.03.2015 in respect of the pathway

which according to the petitioner, is a private one, but which

according to the authority, is a public pathway.

2. The petitioner, on 19.03.2015, showed cause against the

said provisional order. The petitioner is aggrieved by the

impugned order dated 30.04.2015 that the petitioner has been

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Crl.O.P(MD)No.12125 of 2015

directed to restore the possession that originally obtained. This

order is under challenge in the criminal original petition.

3. Heard the learned counsel appearing for the petitioner and

the learned Government Advocate(Crl.side).

4. The order impugned in this criminal original petition is

liable to be set aside, since the authority has not followed the

procedure laid down in Section 138 of Cr.P.C.,. The said provision

clearly states that If the person against whom an order under

section 133 is made appears and shows cause against the order, the

authority shall take evidence in the matter as in a summons-case.

In this case, it is obvious that this procedure was given a complete

go-bye. Therefore, I am inclined to set aside the impugned order.

It is accordingly set aside. This criminal original petition stands

allowed. Consequently, connected miscellaneous petition is closed.

5. The learned Government counsel(Crl.side) points out that

nothing really survives for further adjudication in this case as the

public pathway has already been restored. Therefore, the matter has

to go back to the original authority for fresh consideration.

6. The matter is remitted to the first respondent who shall

adhere to the procedure laid down in Section 138 of Cr.P.C., and

pass orders afresh in accordance with law.

Sd/-

Assistant Registrar (records)

// True Copy //

Sub Assistant Registrar(CS )

Rmi

To

1.The Sub Divisional Magistrate

cum Revenue Divisional Officer,

Tirunelveli District,

Tirunelveli.

2.The Tahsildar,

Palayamkottai,

Tirunelveli District,

Tirunelveli.

+1 CC to Mr.N. MOHIDEEN BASHA, Advocate ( SR-99795[F] dated

20/11/2019 )

Crl.O.P(MD)No.12125 of 2015

and M.P.(MD)No.1 of 2015

20.11.2019

MK (19.12.2019) 2P 4C

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