Judgment : The revision petitioner herein preferred this revision challenging the order passed by the Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Namakkal in Na.Ka.No.604/1—M1 dated 22.03.2010 under Section 133 Cr.P.C. 2. The property comprised in S.No.122/3 is situated in Keeranoor village, Rasipuram Taluk and it is a patta property. According to the petitioner, he is the owner of the said property. According to the respondents 7 to 9, there is a pathway which is being used by the villagers. As the petitioner had digged a pit, an obstruction was caused in the pathway. A summon was sent by the Sub-Divisional Magistrate dated 04.02.2010 to the petitioner herein directing him to appear on 12.02.2010. The petitioner subsequently appeared on 08.03.2010. On 02.03.2010, a show cause notice was issued to the petitioner herein for closing the pit and to permit the public to use the pathway. The petitioner was also directed to appear on 08.03.2010. The petitioner also appeared on 08.03.2010. Subsequently, on 19.03.2010, final order was passed by the Sub-Divisional Magistrate directing the Tahsildar, Rasipuram to close the pit and to set right the path. 3. The learned counsel appearing for the revision petitioner submitted that after receiving the summons from the Sub-Divisional Magistrate on 04.02.2010, the petitioner filed a suit before the civil court and after receiving the show cause notice, the petitioner appeared before the learned Sub Divisional Magistrate on 08.03.2010. He also filed an objection petition, but to his surprise, subsequently final order was passed on 19.03.2010. 4. The learned counsel for the revision petitioner further submitted that the procedures contemplated under Section 137 Cr.P.C. has not been followed and once the objection is raised by the petitioner, the Sub-Divisional Magistrate ought to have recorded the evidence before passing the final order. The learned counsel also relied on the decision of the Kerala High Court reported in 1982 Crl.L.J. 103 (Pavithran Madukkani and others vs. Konjukochu and another). The learned counsel further submitted that the petitioner being the owner of the patta land, no order can be passed under Section 133 Cr.P.C. He also relied on the decision of this Honourable High Court in = 2008-1-L.W. (Crl.) 643 (The Manager Kodanad Estate Kothagiri Taluk, The Nilgiris District represented by R. Ravichandran Vs. The Sub-Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District.) 5. Mr. The Sub-Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District.) 5. Mr. K. Doraisamy, learned Senior Counsel appearing for the respondents 7 to 9, submitted that from the main road, there is a cart-track on the fields for the people going to the village. The revision petitioner deliberately digged a pit caused obstruction in the pathway. The learned Senior Counsel further pointed out that the petitioner who had appeared before the Sub-Divisional Magistrate saying that the matter would be settled and sought time for five days and he had also given an undertaking in writing that he would appear after five days, but deliberately he has not appeared. Only in the said circumstance, as there was an imminent danger, the learned Sub-Divisional Magistrate rightly passed the final order. 6. The learned Senior Counsel also brought to the notice of this Court that after the order being passed by the learned Sub-divisional Magistrate, the pit was closed on 31.03.2010 and now the obstruction is being caused by the petitioner. 7. This Court considered the submissions made by the parties and perused the records. A summon date 04.02.200 was sent to the revision petitioner directing him to appear on 12.02.2010, but it transpires that he had not appeared on that day. Subsequently, a show cause notice dated 02.03.2010, under Section 133 Cr.P.C. has been issued by the Sub-divisional Magistrate. 8. The revision petitioner was also directed to appear on 08.03.2010, for giving his explanation in writing. According to the revision petitioner, he had given a written explanation, a copy of which is filed in the typed set filed by the revision petitioner at page-31 and 32. But in the order passed by the Sub-Divisional Magistrate dated 19.02.2010, there is no reference regarding the objection filed by the revision petitioner. It is mentioned that the revision petitioner after appearing on 08.02.2010 sought time for five days and gave the statement in writing and after that period of five days, the revision petitioner had not appeared before the learned Sub-Divisional Magistrate. Now this Court is not going to the face whether any objection petition was filed by the petitioner herein or not. If any objection petition was filed, it would be available on the record before the Sub-Divisional Magistrate. 9. Section 137 Cr.P.C. reads as follows: “137. Procedure where existence of public right is denied. Now this Court is not going to the face whether any objection petition was filed by the petitioner herein or not. If any objection petition was filed, it would be available on the record before the Sub-Divisional Magistrate. 9. Section 137 Cr.P.C. reads as follows: “137. Procedure where existence of public right is denied. (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and if he finds that there is no such evidence he hall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. As per the above Section, admittedly the revision petitioner had appeared before the Sub-Divisional Magistrate on 08.03.2010. According to the petitioner, he made the objection in writing. As per the order, the petitioner sought only five days time. Anyhow, it has to be taken that the revision petitioner has not conceded to comply with the order passed by the learned Sub-Divisional Magistrate under Section 133 Cr.P.C. 10. It is observed by the Honourable Kerala High Court in the decision reported in 1982 Crl.L.J. 103 (Pavithram Madukkani and others vs. Konjukochu and another), as follows: “ 7. Against the background, I will consider the facts of this case. I am not unaware of the fact that the petitioners – B party – in this case were not only not diligent but had deliberately absented themselves on many occasions. Against the background, I will consider the facts of this case. I am not unaware of the fact that the petitioners – B party – in this case were not only not diligent but had deliberately absented themselves on many occasions. That by itself will not enable a Magistrate to make the preliminary order absolute once the Magistrate finds that the party had, in response to the preliminary order, appeared on the first hearing date and denied the existence of the public right. In this case if the Magistrate felt that the petitioners were deliberately absenting themselves he should have refused adjournments and entered into the second stage contemplated under S.138, Cr.P.C.; instead of doing so the Magistrate made the preliminary order absolute which is without jurisdiction. It was incumbent on him to enquire into the existence of the public right alleged by taking evidence as in a summon case which he did not. This jurisdiction aspect escaped the notice of the learned Sessions Judge also.” As per the above decision, the learned Sub-Divisional Magistrate should have proceeded to take evidence before passing final order. 11. It is also observed by this Honourable High Court in (The Manager Kodanad Estate Kothagiri Taluk, The Nilgiris District represented by R. Ravichandran Vs. The Sub-Divisional Magistrate and the Assistant Collector Coonoor, Nilgiris District) as follows: “12. Summing up:- 12.1 Thus, by a reading Section 133 Cr.P.C. and as interpreted by this Court and the Supreme Court through the decisions referred to above, the following proposition of law emerges:- (a) The order under Section 133 Cr.P.C. must be based upon material factors; (b) The order should be reasonable restriction and it must not be arbitrary or exercise and the procedure and the manner of imposition of restriction must be fair and just; (c) Proceedings under Section 133 Cr.P.C. are not intended to settle private disputes between different members of public. (d) Unless there is imminent danger to the physical comfort of the community, the order under Section 133 Cr.P.C., cannot be passed. (e) No action can be taken when the obstruction has been in existence for a long period and Section 133 Cr.P.C. is attracted only in case of emergency and imminent danger. (f) The proceedings under Section 133 CR.P.C. is not a substitute for the civil proceedings. (e) No action can be taken when the obstruction has been in existence for a long period and Section 133 Cr.P.C. is attracted only in case of emergency and imminent danger. (f) The proceedings under Section 133 CR.P.C. is not a substitute for the civil proceedings. (g) For invoking Section 133 Cr.P.C., there must be imminent danger to the property and consequential nuisance to the public. (h) The exercise o the power should be one of judicious discretion objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. 12.2 to 12.5 ……………… 12.6 In any event, after the preliminary order was passed by the SDM and when an objection was raised in the form of an interim response that the property was a private property, the SDM should have referred the matter for a Civil Court’s decision under Section 137(2) Cr.P.C., and must have stayed his own proceedings. On the contrary, in the impugned order, there is no reference to the application of mind with reference to the exercise of discretion under Section 137(2) Cr.P.C. When a valuable right of a owner of a property is at stake, merely because there is a group demand or a mob desire, the power under Section 133 Cr.P.C., cannot be used or rather misused.” 12. As it is brought to the notice of this Court that the pit had already been closed, this Court feels that no useful purpose will be served by remanding this matter back for fresh disposal by the Sub-divisional Magistrate. 13. It is also brought to the notice of this Court that suits have been filed by both parties, but no interim order has been passed. If any further obstruction has been created Sub Divisional Magistrate, it is open to the learned Sub-Divisional Magistrate to pass an order under Section 133 Cr.P.C and also to follow the procedures laid down under Section 137 Cr.P.C. 14. With the above observations, the revision petition is disposed of.