Kerala High Court
Darar vs The Sub Divisional Magistrate ... on 6 November, 2024
CRL.REV.PET NO. 526 OF 2017 1
2024:KER:82769
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
CRL.REV.PET NO. 526 OF 2017
AGAINST THE ORDER/JUDGMENT DATED IN MC NO.48 OF 2016 OF SUB
DIVISIONAL MAGISTRATE, MANANTHODY
REVISION PETITIONER/COUNTER PETITIONER:
DARAR
S/O,IBRAYI, RUBY PALACE, KANIYARAM, WAYANAD DISTRICT.
BY ADV SRI.KRISHNA PRASAD. S
RESPONDENTS/COMPLAINANTS:
1 THE SUB DIVISIONAL MAGISTRATE MANANATHAVADY
MANANTHAVADY, WAYANAD DISTRICT - 670 645.
2 SUNEESH P.N
PRESIDENT D Y F I COMMITTEE, KANIYARAM AREA,
MANANTHAVADY, WAYANAD DISTRICT - 670 645.
3 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
OTHER PRESENT:
Smt.Maya.M.N.,P.P.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 526 OF 2017 2
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C.PRATHEEP KUMAR, J
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Crl.R.P.No.526 of 2017
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Dated this the 6th day of November, 2024
ORDER
This criminal revision petition is filed against the order
dated 31.3.2017 passed by the Sub Divisional Magistrate,
Wayanad under Section 138 of Cr.P.C. in M.C.No.48/2016, directing
the revision petitioner to demolish a building on the ground that it
is causing danger to the public.
2. The contention of the revision petitioner is that the
above order was passed by the Sub Divisional Magistrate without
complying the mandate of Section 138 (1) of the Cr.P.C.
3. On a perusal of the impugned order, it can be seen
that the Sub Divisional Magistrate has passed the impugned order,
on the basis of an enquiry conducted by him through the Village
Officer, Mananthavady, Assistant Executive Engineer, Buildings
Division, PWD and the Tahsildar concerned. Prior to the same, he
had passed a preliminary order dated 06.10.2016.
4. On receipt of the notice, the revision petitioner
appeared before the Sub Divisional Magistrate and filed a counter
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denying the averments in the complaint filed by the President of
DYFI, Kaniyaram.
5. Section 138(1) Cr.P.C. states that:
'if the person against whom an order under section 133 is
made appears and shows cause against the order, the
Magistrate shall take evidence in the matter as in a
summons-case.'
6. In the instant case, even from the impugned order it
can be seen that the revision petitioner appeared before the
Magistrate and filed his counter. In spite of that, he has chosen to
pass the final order without taking evidence, as required under
section 138(1) Cr.P.C. The names of witnesses examined were also
not stated either in the impugned order or under appendix.
7. In the decision in Abhilash T.M. v State of Kerala
and Another [2018 (5) KHC 625], relied upon by the learned
counsel for the revision petitioner, in paragraph 6 this court held
that:
"That apart, going by the impugned order under challenge, it
could be seen that the documentary evidence adduced by the
parties are not shown as exhibits or under appendix.
Therefore, it is not discernible from the impugned order that
what kind of evidence was adduced by the 2 nd respondent in
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the determination of excess land. This Court is of the opinion
that since the order under challenge is a quasi-judicial order,
the 2nd respondent should have shown the exhibit or appendix,
in the impugned order under challenge to understand the
evidence considered by the 2nd respondent. In the absence of
such an appendix, the the impugned order under challenge
cannot be treated as a quasi-judicial order. That apart, the 2 nd
respondent ought to have remembered that the order to be
passed by the 2nd respondent is an order that can be
challenged in revision before the High Court. Per se, this Court
finds that the impugned order itself is a defective one; it
cannot be treated as a quasi-judicial order."
8. In the decision in Annakody v. State of Kerala and
others [2015 (4) KHC 892] another Single Bench of this Court
also held that recording of evidence under Section 138(1) Cr.P.C is
mandatory before passing an order.
9. Since, in the instant case the impugned order was
passed without complying Section 138(1) of the Cr.P.C. the
impugned order is liable to be set aside.
10. In the result, the revision petition is allowed as follows:
The impugned order passed by the sub Divisional
Magistrate dated 31.03.2017 in M.C.48/2016 is set aside. The
learned Magistrate is directed to dispose of the matter afresh,
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after giving opportunity to both sides to adduce evidence, as
required under Section 138(1) of Cr.P.C.
sd/
C.PRATHEEP KUMAR
JUDGE
jm/
