Judgment : In this Revision Petition filed under Section 397 read with Sec.401 Cr.P.C. the revision petitioner (Jose v. Tharayil), challenges Annexure A9 order dated 31.7.2009 passed by the Revenue Divisional Officer, (Executive Magistrate) Fort Kochi presumably under Section 138 Cr.P.C, refusing to proceed further after holding that the subject matter of the complaint is a private way and authorizing the Secretary of Ezhikkara Panchayat to solve the problem raised in the complaint filed by the revision petitioner. 2. The facts leading to the impugned order can be summarized as follows:- A) The revision petitioner filed a complaint under Section 133 of the Cr.P.C before the 1st respondent/Executive Magistrate alleging that he was the absolute owner of 20 cents of land comprised in Sy.No.111/7 of Ezhikkara Village covered by Document No.5976/2002 of SRO, North Paravur, that there was a 10 ft. wide public pathway running along the northern boundary of his property, that the said pathway was being used, as of right, by more than 15 families residing to the east of the petitioner’s property, that the said pathway proceeds from the Paravur Chathanad road on the east and runs along the northern boundary of the petitioner’s property and terminates in the river on the west, that the said pathway has been in existence for more than 16 years, that the petitioner is entitled to ingress and egress to his property through the said pathway, that the 2nd respondent (Joseph S/o. Augusty obstructed the petitioner using the said pathway and prevented the petitioner using the gate put up by him for access to the said pathway from his property and that the 2nd respondent was not entitled to do so. The revision petitioner, therefore prayed for an order seeking removal of the said obstruction caused by the 2nd respondent. Annexure A1 is the petition submitted by the revision petitioner before the Revenue Divisional Officer (R.D.O. for short). B) The R.D.O. forwarded the said complaint for report to the Village Officer, Azhikkara Village and the Tahsildar, North Paravur. Annexures 2, 2(a) and 2(b) are the three reports dated 2.7.08, 18.08.08 and 20.12.08 by the Village Officer, Ezhikkara Village. The Tahsildar submitted Annexure A3 report dated 16.1.2009. C) On 20.2.2009, the R.D.O, Kochi issued a conditional order under Section 131(1) Cr.P.C. to the following effect. MALAYALAM Translation “No.M4218/2008 Revenue Divisional Office, Fort Kochi. Annexures 2, 2(a) and 2(b) are the three reports dated 2.7.08, 18.08.08 and 20.12.08 by the Village Officer, Ezhikkara Village. The Tahsildar submitted Annexure A3 report dated 16.1.2009. C) On 20.2.2009, the R.D.O, Kochi issued a conditional order under Section 131(1) Cr.P.C. to the following effect. MALAYALAM Translation “No.M4218/2008 Revenue Divisional Office, Fort Kochi. Date 20.02.2009 NOTICE Sub : Obstruction of pathway-complaint regarding Ref : 1. The complaint dated 21.6.2008 submitted by Sri Jose V. Tharayil. 2. Report 354/08 dated 2.7.2008 and report 469/08 dated 18.08.2008 of the Village Officer, Ezhikkara. In the enquiry conducted by the village officer, Ezhikkara in the complaint to the effect that the opposite party (Joseph S/o. Augusthy had obstructed the public pathway which is used by the complainant and the local public, it has been revealed that the opposite party had caused obstruction by covering with plastic sheet the iron gate newly installed by the complainant. Hence the opposite party is hereby directed to remove the obstructions on the subject matter of the complaint within 10 days of receipt of this letter. In case the opposite party has any cause to be shown against implementation of the above direction, both parties are called upon to appear for an enquiry before this office at 11 AM on 27.3.2009. Sd/- Revenue Divisional Officer” D. The matter was adjourned thrice by the R.D.O. for the appearance of the 2nd respondent and finally the 2nd respondent entered appearance through counsel and filed Annexure A5 objection dated 27.3.2009 contending, inter alia, that the pathway in question was not a public pathway and that it was a property belonging to 2nd respondent and his brother Vincent and could be used by them alone and nobody else had any right over the property, that since the user of the gate by the complainant interfered with the privacy and private rights of the 2nd respondent, he had obstructed the complainant from using the same for access to the pathway in question. E) According to the petitioner a copy of Annexure A5 objection was not furnished to him and he had to ultimately obtain a certified copy from the R.D.O. at his own expense. F) On 27.3.2009, the R.D.O. intimated that he would be inspecting the site and the case would be posted for hearing thereafter on 12.6.2009. E) According to the petitioner a copy of Annexure A5 objection was not furnished to him and he had to ultimately obtain a certified copy from the R.D.O. at his own expense. F) On 27.3.2009, the R.D.O. intimated that he would be inspecting the site and the case would be posted for hearing thereafter on 12.6.2009. G) It is the case of the petitioner that there was no inspection conducted by the R.D.O. with notice to him and there was no hearing held on 12.06.2009 and that when the petitioner contacted the office of the R.D.O, he came to know that there had been a posting of the case on 5.6.2009 and the case stands reserved for orders. H) On 26.6.2009, the petitioner filed Annexure A6 petition before the R.D.O. requesting him to conduct an enquiry as is provided under Chapter X-B Cr.P.C. The petitioner also produced documentary evidence showing his title over the property. The R.D.O adjourned the case to 17.07.2009 for appearance of the 2nd respondent. I) It is the case of the petitioner that his counsel on 17.7.2009 had brought it to the notice of the R.D.O. that the 2nd respondent had not appeared and adduced evidence in denial of the public right, even though he had admitted the existence of the pathway in question. J) On 24.8.2009, the petitioner was served with the impugned order (Annexure A9) rejecting his application filed under Section 133 Cr.P.C. The impugned order (Annexure A9) reads as follows:- MALAYALAM Translation Proceedings of the Revenue Divisional Officer, Fort Kochi. (Present: Sri. N.K. Sunderasan) M.4218/09/L Dis. Date 31.07.2009 Sub : Complaint regarding obstruction of pathway – regarding – Ezhikkara Village. Ref : 1. Petition dated 24.06.2008 of Sri Jose V. Tharayil, Palliyakkal Muri, Ezhikkara 2. Report 364/08 dated 2.7.2008 of Village Officer, Ezhikkara. 3. Report F2-8030/08 dated 16.01.2009 of Tahsildar, Paravoor. The complaint submitted by Sri. Jose V. Tharayil to the effect that the opposite party Sri. Joseph s/o. Augusthy Pulickal, Palliyakkal had obstructed the public pathway used by the complainant who is residing in the property comprised in Survey No.111/07 of Ezhikkara village, was enquired into through the village officer. From the report of the village officer and also from the enquiry report of the Tahsildar, Paravoor, it was revealed that there is a pathway having a width of 3.6. From the report of the village officer and also from the enquiry report of the Tahsildar, Paravoor, it was revealed that there is a pathway having a width of 3.6. metres on the northern side of the complainant’s house and that the opposite party had caused obstruction by covering with plastic sheet the iron gate newly constructed by the complaint. In the objection filed by the opposite party it has been stated that the pathway which is used by the complainant and the local public is not a public pathway. The Revenue Divisional Officer had conducted a local inspection in this matter. It was noticed that nobody had obstructed the main way and that the gate that the through which one enters the private way from the property of the complainant was covered with a plastic sheet. Since the subject matter of the complaint is a private pathway the Secretary of Ezhikkara Panchayat is hereby authorized to solve the problem raised in the complaint. Sd/- Revenue Divisional Officer K. The lower court records were summoned. It was a shocking surprise to find that no proceedings paper showing the progression of the case, the reports received, the action taken, questioning done, enquiry conducted, postings of the case, is maintained by the R.D.O. 3. I heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the contesting 2nd respondent and Sri. C.M. Nazar, the learned Public Prosecutor. I also perused the records pertaining to the proceedings of the 1st respondent, R.D.O. 4. In various cases arising out of proceedings under Chapter X Part B Cr.P.C pertaining to Public Nuisance it has come to the notice of this Court that the Executive Magistrates are conducting the proceedings and passing orders blissfully ignorant of the provisions contained in this regard and the profusion of reported case law on the subject, Chapter X of the Code of Criminal Procedure, 1973 (Cr.P.C for short) deals with an important facet of administration of justice namely “maintenance of public order and tranquility”. The said chapter is divided into four parts. Part A deals with unlawful assemblies and is covered by Sections 129 to 132. Part B pertaining to “Public Nuisances” is dealt with under Sections 133 to 143. Part C relating to “urgent cases of nuisance or apprehended danger” is dealt with under Section 144. The said chapter is divided into four parts. Part A deals with unlawful assemblies and is covered by Sections 129 to 132. Part B pertaining to “Public Nuisances” is dealt with under Sections 133 to 143. Part C relating to “urgent cases of nuisance or apprehended danger” is dealt with under Section 144. Part D pertaining to “disputes as to immovable property” is dealt with under Sections 145 to 148. 5. In these proceedings we are concerned with Part B of Chapter X Cr.P.C dealing with “Public Nuisances”. The Cr.P.C does not define the words “Public Nuisance”. But Section 268 of the Indian Penal Code defines “Public Nuisance” as follows:- “A person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.” By virtue of Section 2(y) of Cr.P.C, words and expressions used in the Cr.P.C but not defined thereunder will have the same meaning which is respectively assigned to them in the Indian Penal Code (IPC for short). Thus, sections 133 to 143 occurring in Part B of Chapter X Cr.P.C pertain to “Public Nuisances” and the abatement of the same so as to enable the Executive Magistrate to maintain public order and tranquility. Part B of Chapter X dealing with Public Nuisances cannot, therefore, be applied to a nuisance in a private place. (Ram Autar v. State of U.P. (AIR 1962 SC 1794 and M.P. Parmeswaran Nair v. Madhavan Nair and others (1975 Crl.L.J 1306 Kerala). 6. Clauses (a) to (f) of Section 133 Cr.P.C enumerates six categories of public nuisances. The mischief sought to be remedied must fall within clauses (a) to (f) of Section 133 (1) Cr.P.C. For example, Chapter X-B does not cover the case of a standing tree which may cause obstruction of sunlight to the neighbour and thereby impede the growth of plants, trees or other cultivation in his property. (Kolambil Khader v. State of Kerala – 2007 (1) KLT 576). (Kolambil Khader v. State of Kerala – 2007 (1) KLT 576). A person committing a public nuisance can not only be prosecuted under the provisions of Chapter XIV of the I.P.C., but can also be proceeded against by resorting to the summary proceedings under Chapter X of the Cr.P.C. While the prosecution of the offender may result in the vindication of the offence and punishment of the offender, the summary proceedings under Chapter X Cr.P.C are primarily meant for abating the public nuisance by issuing appropriate directions to the person guilty of such nuisance. The object of Part B of Chapter X is to enable the Executive Magistrate to pass quick orders and deal speedily with cases where public nuisance has been caused or obstruction has been made in respect of the right of the public at large. The idea behind part B of Chapter X is that the danger should be such that if the Magistrate does not take action under Section 133 but instead directs the public to have recourse to the ordinary courts of law, chaotic conditions will prevail and irreparable damage would be done to the public. (See Ashraf Lal v. The State AIR 1965 Allahabad 215 = 1965 (1) Cr.L.J 535 and State of Madhya Pradesh v. Kedia Leather and Liquor Ltd. (2003 SCC (Crl) 1642). Section 133 Cr.P.C is attracted only in cases of emergency and imminent danger to the health or physical comfort of the community (T.K.S.M. Kalyanasundaram v. K. Ammal (1975 Crl.L.J 1717 (Madras). A Magistrate should invoke Section 133 only when speedy and immediate prevention is necessary (Bakulal v. State (AIR 1961 SC 884). 7. The danger contemplated by Section 133 Cr.P.C refers to the period in presenti and not in future. Hence, an action taken in regard to an anticipated but non-existent obstruction or nuisance cannot be justified under Section 133 Cr.P.C. A distant possibility of an injury also is not sufficient. 7. The danger contemplated by Section 133 Cr.P.C refers to the period in presenti and not in future. Hence, an action taken in regard to an anticipated but non-existent obstruction or nuisance cannot be justified under Section 133 Cr.P.C. A distant possibility of an injury also is not sufficient. (See Muralidhar Bhila Patil v. Onkar Vyankat Patil (AIR 1961 Bombay 263), Ittyathi Vaidyan v. Antony (1960 KLJ 160), Rameshwar Narayan Agarwal v. Emperor (AIR 1939 Bombay 92), Shaukar Hussain and another v. Sheodayal Saksaina (AIR 1958 MP 350), Kalyan Mul Mathur v. Emperor (AIR 1936 Patna 577) and Rambharose v. Sundarlal and others (AIR 1934 Nagpur 230; Sakuntala v. Narayanankutty (2009 (4) KLT (SN) 84), Suhelkhan Khudyarkhan v. State of Maharashtra ((2009) 5 SCC 586 = AIR 2009 SC 1868. State of Madhya Pradesh v. Kedia Leather and Liquor Ltd. (2003 SCC (Crl) 1642)). Under Section 133 Cr.P.C. danger to the general public is not necessary. Even possible danger to a single individual may become sufficient in a given case (See Balakrishnan Nambiar v. Madhavan Nambiar (1985 KLT 425 = 1986 Crl.L.J 109). Similarly, there can be a public right over a private property if the private property is frequented by the public who may have an access to the property as of right. (See Augusthy v. Varkey (1989 (1) KLT 654) and Ganapathy v. State of Kerala (2001 (1) KLT 574). 8. Proceedings under Section 133 Cr.P.C are not intended to settle a private dispute between two members of the public. Section 133 should not be permitted to be used to wreak private vengeance and for settling a private dispute between the parties. (See Jose and another v. Kurien (ILR 1967 (1) Kerala 188 at 196), Kunjukrishna Pillai v. Sreekumar (ILR 1991 (2) Kerala 987 at 994), Mohammed Master v. Beeran (1980 KLT 680), Varkey Ouseph v. Paily Mathey (1987 (1) KLT (SN) 56), Ayisumma v. Nabeesa Umma 1977 KLT 329 = 1977 MLJ (Crl) 237, Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995) 4 (Supp) SCC 54) Sakuntala v. Narayanankutty (2009 (4) KLT (SN) 84. The section does not apply to private nuisance (Ram Dayal Misra v. Mt. The section does not apply to private nuisance (Ram Dayal Misra v. Mt. Jagdamba Debi and another (AIR 1942 Allahabad 443), Narayan Shetty and others v. Varkey Antony (1971 Madras L.J. (Cri) 293 (Kerala)), Avisumma v. Nabeesa Umma (1977 Madras LJ (Cri) 237 (Kerala)) and Bhaiya Gauri Shaker v. Bhagely Pande (AIR 1925 Oudh 130). Section 133 Cr.P.C is mainly intended for the summary removal of unlawful obstructions recently caused in public places and is not intended as a substitute for instituting civil suits in regard to long standing obstructions (See Hiralal v. Jogeshwar Ram (1973 Crl.L.J 1375 (HP), Rameshwar Prasad v. State of Bihar (AIR 1958 Patna 210), Ghurahu Das v. Shakalraj Das (AIR 1926 Allahabad 157), Consolidation Co-operative Society v. Har Gobind (AIR 1939 Lahore 276), Nanumal and another v. Emperor (AIR 1939 Lahore 452). But it must be remembered that no man can acquire a prescriptive right to commit a public nuisance. There is also no period of limitation for initiation of proceedings under Section 133 Cr.P.C. (See Satya Sundar v. Sailendra Kumar (AIR 1954 Calcutta 560) and Chhitar v. Chhoga (1974 Crl.L.J 1230 Rajasthan). No length of user can justify an encroachment on a public way Jagroshan Bharthi v. Madan Pande (AIR 1927 Patna 265). The Magistrate can call upon the Municipality to abate the nuisance of open drains containing rubbish and human excretions emitting foul smell etc. by affirmative action on time bound basis failing which to prosecute the authorities concerned under Section 188 IPC (Ratlam Municipality v. Vardhichand (AIR 1980 SC 1622 = 1980 Crl.L.J 1075). The conduct of any trade or occupation, or keeping of any goods or merchandise injurious to the health or physical comfort of the community at large can be regulated or prohibited under Section 133. The mere fact that a particular industry provides livelihood for certain persons is no justification if the running of the workshop causes nuisance by air or noise pollution. (Madhavi v. Thilakan (1988 (2) KLT 730). Smoking is a public nuisance which can be abated by invoking Section 133 (Ramakrishnan v. State of Kerala (1999 (2) KLT 725). There is no implied repeal of Section 133 Cr.P.C either by the Water (Prevention and Control of Pollution) Act, 1974 or by the Air (Prevention and Control of Pollution) Act, 1981 (State of Madhya Pradesh v. Kedia Leather and Liquor Ltd. ((2003 (7) SCC 389). 9. There is no implied repeal of Section 133 Cr.P.C either by the Water (Prevention and Control of Pollution) Act, 1974 or by the Air (Prevention and Control of Pollution) Act, 1981 (State of Madhya Pradesh v. Kedia Leather and Liquor Ltd. ((2003 (7) SCC 389). 9. Section 133 and the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 operate in different fields and under different contingencies and the non-obstante clause in Section 11 of the Rent Control Act cannot have any overriding effect on Section 133 Cr.P.C. which is not meant or intended for eviction of tenants. (Shanmughan v. Paul and others (1986 KLJ 970 = 1986 KLT 1242), Porinchu v. Shanmughan and others (1987 KLJ 362 = 1987 (1) KLT 742), Nazeer v. R.D.O. (1996 (2) KLT (SN) 37). A proceeding under Section 133 Cr.P.C. is in the first instance ex parte and the report or other information on which it is based is no evidence against the opposite party. (Raimohan v. Emperor AIR 1917 Calcutta 207 and Srinath Raoy and others v. Ainaddi Halder (ILR (1897) 24 Calcutta 395). Pendency of a civil suit is not a ground to drop the proceedings under Section 133 (Jibu Simon v. Meenkshy Amma (2000 (1) KLT 190 and Mossaz v. Sathyanesan (2003 (1) KLT (SN) 53). But pendency of civil litigation is a bar to the initiation of proceedings under Section 145 Cr.P.C. (Ram Sumer Puri v. State of U.P. (AIR 1985 SC 472). 10. The expression “on taking such evidence (if any) as he thinks fit” in the opening portion of Section 133(1) does not make it incumbent on the Magistrate to hold an enquiry before he makes a conditional order under Section 133 Cr.P.C. (See Abdul Shakur v. Emperor (AIR 1931 Allahabad 257). Evidence produced while passing the conditional order under Section 133 Cr.P.C. cannot be a substitute for the evidence to be taken under Section 138. (See Krishna v. Varghese (1975 Crl.L.J 104) (Kerala). 11. The word “person” in Section 134 Cr.P.C. includes a company or association or body of persons whether incorporated or not in view of Section 11 of IPC and Section 3 (42) of the General Clauses Act, 1897. 12. (See Krishna v. Varghese (1975 Crl.L.J 104) (Kerala). 11. The word “person” in Section 134 Cr.P.C. includes a company or association or body of persons whether incorporated or not in view of Section 11 of IPC and Section 3 (42) of the General Clauses Act, 1897. 12. The manner of service of the conditional order is as provided under Sections 62 to 65 of Cr.P.C. Where the person to be served with the conditional order cannot be found, an attempt must be made to serve the order on some adult male member of such person’s family. (See Kanai Lal v. the State (AIR 1951 Calcutta 207). When no notice was served before an enquiry was held, the order under Section 138 Cr.P.C. was held to be bad in law (Ramakrishnan v. Musalikutty (1985 Crl.L.J 630 (Kerala). If the person affected by the conditional order had actual knowledge of the order and could have defended himself under Section 135, then omission to strictly follow the mode of service under Section 134 Cr.P.C. is only an irregularity which is curable under section 465 Cr.P.C. (See Parbutty Charan v. Queen Empress (ILR (1889) 16 Calcutta 9). 13. The order passed under Section 133 or Section 138 is an executive order and not a judicial order. If the order is passed in violation of the principles of natural justice or is arbitrarily passed on mala fide grounds or if the order deprives the fundamental rights of a citizen then the State is liable to compensate the loss or injury suffered by the citizen. (vide Mohammed v. State of Kerala 1997 (2) KLT SN 42). THE MECHANICS OF CHAPTER X PART-B OF Cr.P.C. 14. The pre-conditions for the exercise of jurisdiction under Part B of Chapter X Cr.P.C. by a District Magistrate or by a Sub Divisional Magistrate or by a specially empowered Executive Magistrate and the nature of the orders which can be passed by such Magistrate are the following:- A. On receiving the report of police officer or other information AND on taking such evidence (if any) as he thinks fit, the Magistrate considers that the removal of the alleged nuisance is necessary, then the Magistrate is empowered to issue directions in the form of a conditional order and calling upon the opposite party to show cause as to why the conditional order should not be made absolute. The following are the six instances of public nuisance envisaged by Section 133(1) Cr.P.C. and the conditional orders which can be passed by the Magistrate:- The Specific public nuisance The conditional order to be passed a) If the Magistrate considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or which may be lawfully used by the public i) The Magistrate may require the person responsible for such obstruction or nuisance to remove the same. b) If the Magistrate considers that the conduct of any trade or occupation or the keeping of any goods or merchandise is injurious to the health or physical comfort of the community, and in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. ii) The Magistrate may require the person responsible for such obstruction or nuisance to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed. c) If the Magistrate considers that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped. iii) The Magistrate may require the person responsible for such obstruction or nuisance to prevent or stop the construction of such building, or to alter the disposal of such substance. d) If the Magistrate considers that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary. iv) The Magistrate may require the person responsible for such obstruction or nuisance to remove, repair or support such building, tent or structure, or to remove or support such trees. iv) The Magistrate may require the person responsible for such obstruction or nuisance to remove, repair or support such building, tent or structure, or to remove or support such trees. e) If the Magistrate considers that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or v) The Magistrate may require the person responsible for such obstruction or nuisance to fence such tank, well or excavation. f) If the Magistrate considers that any dangerous animal should be destroyed, confined or otherwise disposed of. vi) The Magistrate may require the person responsible for such obstruction or nuisance to destroy, confine or dispose of such dangerous animal in the manner provided in the said order. The mischief sought to be remedied must fall under clauses (a) to (f) of Section 133(1) Cr.P.C. (Kolambil Khader v. State of Kerala (2007 (1) KLT 576). The word “community” in clause (b) of Section 133(1) Cr.P.C. cannot be taken to mean residents of a particular house. It means something wider i.e. the public at large or the residents of an entire locality (Sakuntala v. Narayanankutty (2009 (4) KLT (SN) 84, Suhelkhan Khudyarkhan v. State of Maharashtra ((2009) 5 SCC 586 = AIR 2009 SC 1868). B. Form 20 of the II Schedule to the Cr.P.C. prescribes the minimum format for the order for removal of nuisance under Section 133 Cr.P.C. The said form reads as follows:- Form No.20 Order for the removal of nuisances (See section 133) To …………………………………… (name description and address) WHEREAS it has been made to appear to me that you have caused an obstruction (or nuisance) to persons using the public roadway (or other Public place) which, etc……………………. (describe the road or public), by etc…………………………………………,(state what it is that causes the obstruction or nuisance), and that such obstruction (or nuisance), and that such obstruction (or nuisance) still exists; Or WHEREAS it has been made to appear to me that you are carrying on, as owner, or manager, the trade or occupation of ………………………… (state the particular trade or occupation and the place where it is carried on), and that the same is injurious to the public health (or comfort) by reason …………………… (state briefly) in what manner the injurious effects are caused), and should be suppressed or removed to a different place. Or WHEREAS it has been made to appear to me that you are the owner (or are in possession of or have the control over) a certain tank (or well or excavation) adjacent to the public way………………….. (describe the thoroughfare), and that the safety of the public is endangered by reason of the said tank (or well or excavation) being without a fence (or insecurely fenced); Or WHEREAS, etc. etc, (as the case may be); I do hereby direct and require you within………………………..(state the time allowed) …………………………(state what is required to be done to abate the nuisance) or to appear at …………………………….in the Court of ………………. on the …………………….. day of ………………….. next, and to show cause why this order should not be enforced; Or I do hereby direct and require you within ……………. (state the time allowed) to cease carrying on the said trade or occupation at the said place, and not again to carry on the same, or to remove the said trade from the place where it is now carried on, or to appear etc. Or I do hereby direct and require you within …………………… (state the time allowed) to put up a sufficient fence …………………………….. (state the kind of fence and the part to be fenced); or to appear, etc; Or I do hereby direct and require you, etc. etc. (as the case may be) Dated this ………. day of ……………… 20 ……………. (Seal of the Court) (Signature) C. Thus the opposite party is required by the conditional order either to do any of those acts enumerated under (i) to (vi) of Section 133(1) Cr.P.C. or if he objects to the course directed in the conditional order, he is called upon to appear before the Magistrate or a Subordinate Executive Magistrate and show cause why the conditional order should not be made absolute. D. In case any imminent danger or serious injury to the public is apprehended, Section 142 Cr.P.C. enables the Executive Magistrate to issue an order of injunction pending enquiry. Such an order is to be passed in terms of Form 22 of the II Schedule which reads as follows:- FORM No. 22 Injunction to provide against imminent danger pending inquiry (See section 142) To…………………………………..(name, description and address) WHEREAS the inquiry into the conditional order issued by me on the …………. Such an order is to be passed in terms of Form 22 of the II Schedule which reads as follows:- FORM No. 22 Injunction to provide against imminent danger pending inquiry (See section 142) To…………………………………..(name, description and address) WHEREAS the inquiry into the conditional order issued by me on the …………. Day of ……………..20……………, is pending, and it has been made to appear to me that the nuisance mentioned in the said order is attended with such imminent danger or injury of a serious kind to the public as to render necessary immediate measures to prevent such danger or injury, I do hereby, under the provisions of Section 142 of the Code of Criminal Procedure, 1973, direct an enjoin you forthwith to ………………………….. (state plainly what is required to be done as a temporary safeguard), pending the result of the inquiry. Dated, this………………..day of……………, 20 ……………… (Seal of the Court) (Signature) Thus an order of injunction can be issued only after the issuance of a conditional order under Section 133(1) Cr.P.C. It has been held that the general principles governing the issue of injunction in a civil case are to be applied while granting an order of injunction and therefore notice before injunction would be the safest rule (Vide Chamunny v. State of Kerala (1979 KLT 107) E. Section 134 lays down the mode of service of the conditional order. The same mode as is applicable to service of summons should be resorted. (See Sections 62 to 65 Cr.P.C.). F. Section 135 suggests that the opposite party who is served with a copy of the conditional order is either to obey the order or appear and show cause. Section 136 provides for the consequences of failure by the opposite party either in obeying the order or in appearing and showing cause. If the opposite party does not obey the order or does not appear and show cause, the order shall be made absolute and the opposite party shall also be liable to penalty under Section 188 of the IPC. G. With regard to cases falling under clauses (a) and (e) of 133(1) Cr.P.C, Section 137 provides for the procedure to be followed in case the existence of the public right is denied. G. With regard to cases falling under clauses (a) and (e) of 133(1) Cr.P.C, Section 137 provides for the procedure to be followed in case the existence of the public right is denied. The following are the steps to be followed by the Magistrate:- i. On the appearance of the opposite party the Magistrate should question him as to whether he denies the existence of any public right in respect of the subject matter of the dispute. (This should be reflected in the proceedings paper maintained by the Magistrate). ii. If the opposite party denies the existence of the public right, the Magistrate has to conduct an inquiry to find out whether there is any reliable evidence in support of such denial. At this stage the burden is on the party denying the existence of the public right to adduce reliable evidence in support of his denial. During such enquiry, the Magistrate can order local inspection or summon and examine an expert (See Section 139 Cr.P.C.). It is always desirable to get plan or at least a rough sketch prepared so that the Magistrate, in the first instance, and a superior court at a later stage will be able to comprehend the facts including the topography of the land, the location of the structures etc. more satisfactorily and arrive at the right conclusion. iii. If the Magistrate finds that there is reliable evidence in support of such denial he should stay the proceedings until the existence of such right is decided by the civil court. (Section 137(2) Cr.P.C.) iv. If the Magistrate finds that there is no reliable evidence in support of such denial then only he should proceed under Section 138 Cr.P.C. and take evidence as in a summons-case by following the procedure prescribed under Sections 251 to 257 (Section 137(2) Cr.P.C.). At this stage the burden is on the party at whose instance the proceedings were commenced, to adduce reliable evidence in support of the alleged obstruction or public nuisance. v. If the opposite party on being questioned by the Magistrate under Section 137(1) Cr.P.C. has failed to deny the existence of a public right or who having made such denial has failed to adduce reliable evidence in support of such denial, he is precluded from making any such denial in the subsequent proceedings. (Section 137(3) Cr.P.C.). v. If the opposite party on being questioned by the Magistrate under Section 137(1) Cr.P.C. has failed to deny the existence of a public right or who having made such denial has failed to adduce reliable evidence in support of such denial, he is precluded from making any such denial in the subsequent proceedings. (Section 137(3) Cr.P.C.). (The procedure to be followed by the Executive Magistrates has been outlined in K.G. Thilakan v. The Tahsildar, Mukundapuram (2007 (2) KHC 967 = 2007 (2) KLD 146) and Cheruchi v. State of Kerala (2009 (1) KLT 217) H. Section 138 Cr.P.C. lays down the procedure where the opposite party appears to show cause against the conditional order. The Magistrate has then to take evidence in the matter as in a summons-case by following the procedure under Section 251 to 257. Executive Magistrate can pass a final order under Section 138 only after passing a conditional order Section 133(1) Cr.P.C and that too after taking evidence. (Shanmughan and Another v. Karayakath Prabhakaran (2008 (2) KHC 886; C.A. Avarachan v. C.V. Sreenivasan (1996) 7 SCC 71 = 1996 SCC (Crl) 174). If the opposite party denies the public right, the order making the preliminary order absolute without holding an enquiry is without jurisdiction (Pavithran Madhukani v. Kunjukochu (1985 Crl.L.J 630 (Kerala). During this stage also the Magistrate can order local inspection or examine an expert under Sec. 139 Cr.P.C. I. If after taking evidence the Magistrate is satisfied that the conditional order is reasonable and proper, he shall make the order absolute with or without modifications. Where the conditional order is made absolute either under Section 136 or under Section 138 Cr.P.C, the Magistrate has to give a notice to the opposite party in Form No.21 of the II Schedule. (Section 141(1) Cr.P.C). The said Form reads as follows:- Form No.21 Magistrate’s Notice and Peremptory Order (See Section 141) To……………………(name, description and address). I HEREBY give you notice that it has been found that the order issued on the ……………………….day of………………….requiring you……………… (state substantially the requisition in the order) is reasonable and proper. Such order has been made absolute, and I hereby direct and require you to obey the said order within ……………. (state the time allowed), on peril of the penalty provided by the Indian Penal Code for disobedience thereto. Dated this …………………………..day of……………………….20……………….. Such order has been made absolute, and I hereby direct and require you to obey the said order within ……………. (state the time allowed), on peril of the penalty provided by the Indian Penal Code for disobedience thereto. Dated this …………………………..day of……………………….20……………….. (Seal of the Court) (Signature) J. The Magistrate shall also require the opposite party to perform the act directed by the final order within a time-limit fixed in the notice and inform him that in case of disobedience he will be liable to the penalty provided by Section 188 IPC (Section 141 (1) Cr.P.C). If the act is not performed within the time limit fixed, the Magistrate may cause it to be performed and recover the costs of performing it by any of the modes mentioned in Section 141(2) Cr.P.C. K. The Magistrate may prohibit repetition or continuance of public nuisance (Section 143 Cr.P.C). 15. Thus going by the statutory scheme of Section 133 Cr.P.C. the taking of evidence is a condition precedent to the making of the conditional order absolute under Section 138 Cr.P.C. (See Narayan Shetty v. Varkey Antony (1971 MLJ Crl. 293 Kerala). Even where the opposite party who denied the alleged public nuisance fails to appear at a subsequent stage, the Magistrate cannot make the order absolute without taking evidence on behalf of the complainant. (See Velayudhan v. Kesavan Nair (1968 KLT 889) and Jagdamba Prasad Tewari v. State of U.P. (1991 Crl.L.J 1883 All) and Annaswami v. Janaki Ammal (AIR 1951 TC 228), Lal Behari v. Jatindra Chandra AIR 1949 Calcutta 57), Rameshwar v. Emperor (AIR 1939 Bom 92), Madan Mohan Chowlia v. Ashutosh Sasmal and others (1975 Crl.L.J 959 (Cal). 16. The burden of proof in an inquiry under Section 138 is on the party at whose instance the proceedings were initiated (See Balan v. State of Kerala (1966 KLT 1100), Rameshwar v. Emperor (AIR 1939 Bom 92), Emperor v. Raghunandan Saran Das (1936 Patna 639). 17. A final order making the conditional order absolute cannot go beyond the scope of the conditional order. In a case which arose from Punjab the opposite party who was carrying on the occupation of a baker in the tenanted site had constructed an oven and a chimney which constituted a nuisance under Section 133. 17. A final order making the conditional order absolute cannot go beyond the scope of the conditional order. In a case which arose from Punjab the opposite party who was carrying on the occupation of a baker in the tenanted site had constructed an oven and a chimney which constituted a nuisance under Section 133. By the conditional order passed under Section 133(1) Cr.P.C, he was required to demolish the said oven and the chimney within period of 10 days. But the final order passed was to the effect that the said party shall cease to carry on the trade of baker at the particular site and shall not lit the oven again. It was held that while it was certainly within the terms of the conditional order to prevent the opposite party from using the oven, it was not so in the case of the final order requiring him to desist from carrying on the trade of a baker at the site (See Gobind Singh v. Shanti Sarup (AIR 1979 SC 143). In Assainar v. Moideenkutty (1999 (1) KLT 196), it was held that a final order under Section 138 Cr.P.C can be passed only on the basis of a conditional order and in the absence of a conditional order there was no question of passing a final order. 18. Applying the above principles to the facts of the present case it is clear that the Magistrate did not question the 2nd respondent as to whether he denies the existence of any public right in respect of the subject matter of the dispute. If the opposite party were to deny the existence of the public right then an enquiry was to be conducted by the Magistrate to find out whether there was any reliable evidence in support of the denial of the public right. For this enquiry the burden was certainly on the party denying the existence of the public right. In such enquiry, if the Magistrate was of the view that there is no reliable evidence in support of the denial of public right, then only he could proceed under Section 138 and take evidence initially by calling upon the party at whose instance the proceedings were initiated. In such enquiry, if the Magistrate was of the view that there is no reliable evidence in support of the denial of public right, then only he could proceed under Section 138 and take evidence initially by calling upon the party at whose instance the proceedings were initiated. If on the other hand, the Magistrate found that there was reliable evidence in support of the denial of the public right, then he would have no jurisdiction to proceed further. The only course then open to the Magistrate would be to stay the proceedings until the existence of the right claimed is decided by the competent Civil Court. 19. A perusal of the records in this case shows that the 1st respondent R.D.O has not maintained any proceedings paper or order sheet from which it could be discerned whether he questioned the 2nd respondent to find out whether he denied the existence of the public right in respect of the pathway in question. It is true that in the objection filed by him the 2nd respondent had denied the allegation that the pathway was a public pathway. But then it was for the 2nd respondent to adduce evidence in support of the denial and if only he succeeded in adducing reliable evidence in support of his denial could the Magistrate drop the proceedings leaving the parties to agitate their rights before a competent Civil Court. Otherwise, the Magistrate was to proceed further to the stage of enquiry under Section 138 and call upon the party at whose instance the proceedings were initiated to produce evidence in support of his claim. Except passing the conditional order, and that too, strictly not in conformity with the statutory format, the 1st respondent did not adhere to the procedure established by law. Instead of taking evidence of the parties he was satisfied by noting the rival submissions made by the respective advocates appearing for the parties and treating the same as depositions. This shows that the 1st respondent was blissfully ignorant about what a deposition is. A deposition is the testimony given by a party before a court of law. Instead of taking evidence of the parties he was satisfied by noting the rival submissions made by the respective advocates appearing for the parties and treating the same as depositions. This shows that the 1st respondent was blissfully ignorant about what a deposition is. A deposition is the testimony given by a party before a court of law. If in the preliminary enquiry under Section 137 Cr.P.C, the Magistrate was of the view that the opposite party had adduced reliable evidence in support of the denial, then he could only stop the proceedings leaving the parties to agitate their rights before the Civil Court. The JUDICIAL EVALUATION OF THE IMPUGNED ORDER directions in the order dated 31.07.2009 to the Secretary of the Ezhikkara Panchayat to resolve the dispute with regard to the pathway (which was held by the Magistrate to be a private pathway) in question was unwarranted. THE CONCLUSION The impugned order dated 31.7.2009 is accordingly set aside and the matter is remitted to the 1st respondent/Executive Magistrate who shall continue the proceedings in accordance with law from the stage of Annexure A4 conditional order dated 20.2.2009.