Thankamma, W/O. Chandran Pandianmaril v. Rajalakshmi
2017-03-13
K.P.JYOTHINDRANATH
body2017
DigiLaw.ai
ORDER : This criminal revision petition is filed against the order dated 20.08.2008 in Crl.R.P.No.175/2004 on the files of the Sessions Court, Palakkad by which the order in M.P.No.8/2002 of the Sub Divisional Magistrate Court, Ottappalam was set aside. The facts relevant for consideration of this revision petition is as follows : The revision petitioner filed a complaint before the Sub Divisional Magistrate, Ottappalam under Section 133(1) of Cr.P.C. The allegation was that the first respondent herein has obstructed a pathway commencing from a public road which led to the house of the first respondent herein and the neighbours nearby. A report was called from the Village Officer, Shornur I and the Sub Divisional Magistrate passed a conditional order under Section 133(1) of Cr.P.C. directing to remove the obstruction within seven days or to show cause as to why the order should not be made absolute. In pursuance of the said notice, the first respondent herein appeared before the Sub Divisional Magistrate and denied the allegation. Seeing that the denial is not sufficient ordered an enquiry under Section 138 of Cr.P.C. 2. The first respondent herein challenged the same before the Sessions Court by filing a revision as Crl.R.P.No.175/2004. The said revision was allowed by the Sessions Court by its order dated 20.08.2008, wherein the court set aside the impugned order dated 6.11.2004 passed by the Sub Divisional Magistrate, Ottappalam which was passed under Section 137(1) of Cr.P.C. The said order is under challenge. 3. The learned counsel for the revision petitioner submitted before me that apart from the facts, it is also to be considered that a revision petition will not lie against an order under Section 137(1) of Cr.P.C. to continue the proceeding. It is an interlocutory order, against which a revision will not lie. The learned counsel for the respondent herein submitted before me that when an illegality was seen committed by the Sub Divisional Magistrate, the lower revisional court only corrected the same. Though there was an earlier proceeding before the Sub Divisional Magistrate, wherein it was found by the Magistrate that the dispute is of civil nature and accordingly, the matter has been closed. It is the submission that now it is only revival of the same dispute when the presiding officer changed. 4.
Though there was an earlier proceeding before the Sub Divisional Magistrate, wherein it was found by the Magistrate that the dispute is of civil nature and accordingly, the matter has been closed. It is the submission that now it is only revival of the same dispute when the presiding officer changed. 4. The limited question to be considered in this case is as to whether the Sessions Judge passed the order invoking the revisional powers in an interlocutory order. After going through the scheme under Sections 133 to 138 of Cr.P.C., it can be seen that Section 137 is only a procedure to be followed by the court, when the public road is obstructed. In other words, it is purely an interlocutory order. The final order will be an order under Section 138 of Cr.P.C., Surely, if the order was to stay the proceeding waiting the order of a competent court, then a revision may lie as it has the features of finality in nature. I am gathering strength of this view especially when the revisional court only set aside the order dated 6.11.2004 in M.P.No.8/2002. By the said order, an order passed during the procedure alone is seen set aside and there is no direction regarding what will happen to the proceeding after setting aside the order. It is made clear that this court not expressed anything regarding the reasons given by the court below for setting aside the order. Only for the reason that revisional power cannot be invoked at that stage, the impugned order set aside. Thus, considering all aspects of the case, the impugned order in Crl.R.P.No.175/2004 dated 20.8.2008 is hereby set aside and the Sub Divisional Magistrate is directed to proceed from the stage it already reached at. It is made clear that both the parties will be entitled to adduce evidence as contemplated under Section 138 of Cr.P.C. and further it is made clear that the setting aside of the order as stated above will not a bar for reconsidering the same points considered by the court of session by the Sub Divisional Magistrate as the impugned order is set aside only on technical aspect. That is, whether the grievance will come under Chapter X B of Cr.P.C. and what will be the effect of earlier proceeding can be considered.
That is, whether the grievance will come under Chapter X B of Cr.P.C. and what will be the effect of earlier proceeding can be considered. It is also made clear that all the venues available for redressal of the grievances by the parties are kept open.