Rahima vs The State of Kerala, The Sub Divisional Magistrate and Razzak

Thomas P. Joseph, J.—Heard learned Counsel for Petitioner, Respondent No. 3 and the learned Public Prosecutor appearing for Respondents 1 and 2.

Petitioner preferred a complaint to Respondent No. 2, the Sub Divisional Magistrate, Thrissur purportedly u/s 133 of the Code of Criminal Procedure (for short, "the Code") alleging that an alleged public way which was being lawfully used by the public has been obstructed by Respondent No. 3. The Sub Divisional Magistrate took the complaint on file as M.C. No. 222 of 2010 and issued Ext.P2, conditional order dated 03.08.2010 directing Respondent No. 3 to remove the alleged obstruction or show cause why the order shall not be made absolute. Later the Sub Divisional Magistrate appears to have conducted some enquiry purportedly u/s 137 of the Code and dropped the proceeding observing that what is involved is a private dispute. Petitioner has challenged that order before the learned Sessions Judge, Thrissur in Crl. R.P. No. 29 of 2011 and moved Ext.P6, Crl.M.P. No. 888 of 2011 for interim order restraining Respondent No. 3 from making obstruction to the disputed pathway until disposal of the revision petition. On that petition learned Sessions Judge ordered notice. Petitioner has approached this Court seeking interim relief as above stated until disposal of the revision petition.

Learned Counsel for Petitioner contends that the Village Officer has reported that the disputed way is the only way for access to Petitioner and others. Learned Counsel for Respondent No. 3 would say that there are alternative ways for Petitioner and only attempt of Petitioner is to prevent Respondent No. 3 putting up a residential building. It is contended that in view of the order passed by this Court on 28.03.2011 construction of residential building is stalled.

It is revealed from the submission made by learned Counsel on both sides that the revision petition as well as Crl. M.P. No. 888 of 2011 are coming up for hearing before the learned Sessions Judge on 08.04.2011. In the circumstances what is required is only to direct parties to maintain the present condition as directed in order dated 28.03.2011 until 08.04.2011, leaving it to the learned Sessions Judge to decide the application for interim relief and the revision as provided under law.

Resultantly this Original Petition is disposed of directing that the interim order passed by this Court on 28.03.2011 shall remain in force till 08.04.2011. It is open to the Petitioner to request learned Sessions Judge to pass appropriate orders on Ext.P6, Crl. M.P. No. 888 of 2011 in Crl. R.P. No. 29 of 2011. Learned Sessions Judge shall pass appropriate orders on the said petition untrammelled by any observation made by this Court in the interim order or in this judgment.