[Cites 11, Cited by 0]
Kerala High Court
K.P.Narayanan Nambiar vs P.M.Krishnan Namboodiri on 17 February, 2026
2026:KER:13496
Crl.M.C No.5823/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
CRL.MC NO. 5823 OF 2019
IN MP NO.18 OF 2015 OF SUB DIVISIONAL MAGISTRATE,
THALASSERY
PETITIONER/COUNTER PETITIONER:
1 K.P.NARAYANAN NAMBIAR,
AGED 80 YEARS,
NITHYYANANDA BHAVAN,
P.O PINARAYI, TELLICHERI,
KANNUR 670 741
2 T. PADMINI,
W/O LATE K.P NARAYANAN NAMBIAR,
AGED 66 YEARS, RESIDING AT A1-51,
UNITY COMPLEX P.G MARY,
RAJAPADA MALAD WEST MUMBAI -400064.
ADDL P2 IS IMPLEADED AS PER ORDER DATED 25/01/2023 IN
CRL.M.A.1/2023 IN CRL.M.C.5823/2019.
3 SAJAN NAMBIAR
S/O LATE K.P NARAYANAN NAMBIAR,
AGED 47 YEARS, RESIDING AT A1-51,
UNITY COMPLEX P.G MARY,
RAJAPADA MALAD WEST MUMBAI 400064.
ADDL P3 IS IMPLEADED AS PER ORDER DATED 25/01/2023 IN
CRL.M.A.1/2023 IN CRL.M.C.5823/2019.
4 REKHA JANARDHANAN
D/O. LATE K.P NARAYANAN NAMBIAR,
AGED 43 YEARS, RESIDING AT FLORENCE MANSION,
RAILWAY GODOWN ROAD,
INDRALI, UDUPI-, KARNATAKA- 576101.
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Crl.M.C No.5823/2019
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ADDL P4 IS IMPLEADED AS PER ORDER DATED 25/01/2023 IN
CRL.M.A.1/2023 IN CRL.M.C.5823/2019.
BY ADVS.SRI.M.P.ASHOK KUMAR
SRI.P.C.GOPINATH
SMT.BINDU SREEDHAR
SHRI.ASIF N
RESPONDENTS/PETITIONER AND STATE:
1 P.M.KRISHNAN NAMBOODIRI
AGED 59 YEARS
TEMPLE POOJARI,
PINARAYI SREE PARVATHY PARAMESWARA TEMPLE,
PINARAYI P.O,
KANNUR 670 741
2 THE REVENUE DIVISIONAL OFFICER,
TELLICHERY,
KANNUR 670 101
3 STATE OF KERALA,
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682 031
BY ADV SRI.C.P.PEETHAMBARAN
SRI. SANAL P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13.02.2026, THE COURT ON 17.02.2026 PASSED THE FOLLOWING:
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Crl.M.C No.5823/2019
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ORDER
Annexures-A4 & A5 orders passed by the Sub Divisional Magistrate
Court, Thalassery, in purported exercise of the powers under Sections
133(1) & 138 of the Code of Criminal Procedure, 1973(in short, 'Cr.PC')
are under challenge in this petition filed under Section 482 Cr.PC by the
counter petitioner in the said proceedings. Now, the petitioner herein is
no more, and the additional petitioners 2 to 4 are impleaded as his legal
representatives.
2. The issue involved in this case relates to a natural drainage
channel which was said to have been existing through the landed
property of the petitioner near Sreeparvathy Parameswara Temple,
Pinarayi, Kannur. The aforesaid water channel was said to be the
drainage outlet of excess water from the pond of the aforesaid temple.
Alleging that the petitioner had filled and obliterated the above water
channel and caused obstruction to the free flow of water from the temple
pond, the first respondent, who claims to be the priest of that temple,
approached the Sub Divisional Magistrate, Thalassery, with Annexure-A2
complaint for restoration of the said water channel. Before that, the first
respondent had approached this Court by filing W.P.(C)No.19680/2014
for Police protection to remove the obstruction caused to the free flow of
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water through the above canal, which was said to be in existence
through the landed property of the petitioner. By the judgment rendered
on 17.10.2014, it was observed by this Court that no such direction as
sought for was required to be issued in that case. However, it was made
clear in the said judgment that the petitioner could approach the RDO in
the event of any nuisance, and that if any such petition is filed, the RDO
shall consider the same and pass appropriate orders in accordance with
the law. It is thereafter that the petitioner filed Annexure-A2 complaint
before the Sub Division Magistrate (RDO), Thalassery. According to the
petitioner, the first respondent and certain others attempted to cut open
a new water channel through his land on 14.07.2014, against which the
petitioner's wife complained before the Judicial First Class Magistrate
Court, Thalassery, leading to the registration of Crime No.716/2014 by
the Dharmadam Police against the first respondent and the other
accused for the commission of offences under Sections 427, 447 & 506(i)
r/w Section 34 I.P.C.
3. By Annexure-A4 order, the learned Sub Divisional Magistrate
directed the petitioner herein to remove the obstructions in the water
channel which existed through the property and to restore the water
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channel to its prior position within 10 days, or to appear before the said
authority and to show cause why that order should not be made
absolute. Thereafter, on 31.01.2018, the learned Sub Divisional
Magistrate passed the final order under Section 138 Cr.PC (Annexure-A5)
making Annexure-A4 conditional order absolute. The aforesaid orders
are under challenge in this petition filed by the petitioner.
4. Heard the learned counsel for the petitioner, the learned
counsel for the first respondent and the learned Public Prosecutor
representing the State of Kerala.
5. As already stated above, the issue involved in this case
relates to the right of the authorities of Sreeparvathy Parameswara
Temple, Pinarayi, to use a natural drainage channel which was said to
have been in existence in the landed property of the petitioner to drain
out the excess water from the temple pond. The fact that the landed
property where the aforesaid drainage channel was said to have been in
existence, is the absolute private property of the petitioner, is not in
dispute. There is no case for the first respondent that the water channel
which was said to be in existence in the property of the petitioner has
been included in the relevant register maintained by the local authority.
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Nor have the revenue authorities got a contention that the aforesaid
water channel finds a place in the relevant plans or any other revenue
records. Thus, obviously, the nature of the right claimed by the temple
authorities over that water channel is a right of easement. The fact that
the aforesaid right claimed by the first respondent and the other persons
associated with that temple was a private right of easement, is further
revealed from the statement in Annexure-A2 complaint about the
institution of O.S.No.127/2010 before the Munsiff's Court, Thalassery,
against some other persons, and the injunction order passed by the Civil
Court which was said to be in force. Thus, essentially the issue involved
in this case is a matter to be dealt with by the Civil Court by looking into
the rival contentions raised by the parties. This is especially so, in view
of the contention of the petitioner that a complaint had been preferred
against the first respondent and others for criminally trespassing into the
property of the petitioner and attempting to cut open a new canal
through the above property, and the crime said to have been registered
by the Dharmadam Police on the basis of that complaint.
6. It is apparent from Annexure-A5 order of the learned Sub
Divisional Magistrate that the said authority had not followed the enquiry
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as required under Section 137 Cr.PC . As per Section 138(1) Cr.PC, 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. In the present case, Annexure-A3 would
reveal that the petitioner herein had appeared before the learned Sub
Divisional Magistrate and showed cause in writing against the preliminary
order passed by the learned Magistrate. That being so, it was incumbent
upon the learned Sub Divisional Magistrate to take evidence in the
matter as in a summons case. Instead of resorting to the above
requirement of law, the learned Sub Divisional Magistrate is seen to have
passed the final order by relying on the reports of a Village Officer and
Senior Superintendent and also on the basis of the facts said to have
been noted by the learned Magistrate during site inspection.
Annexure-A5 order does not contain any indication as to whether the
learned Magistrate had given opportunity to the parties to adduce
evidence as in a summons case in accordance with the mandate of
Section 138(1) Cr.PC. Had the above course of procedure been adopted
by the learned Magistrate, he could have realised that the issue involved
in this case was a matter to be dealt with by the Civil Court. Thus, it has
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to be stated that the failure of the learned Sub Divisional Magistrate in
adopting the correct procedure of law in the enquiry conducted in this
case, has resulted in the promulgation of Annexure-A5 order upon a
matter which was beyond the scope of Section 138 of the Cr.PC.
7. The learned counsel for the first respondent submitted that
earlier the District Collector, Kannur, had also initiated proceedings
against the filling of the portions of the same water channel, consequent
to the orders of this Court in W.P.(C)No.13381/2010, and that it was
found by the District Collector that obstructions were caused to the
above said water channel. Accordingly, the District Collector is said to
have passed an order directing the additional Tahasildar to remove the
obstructions and to restore the land to its previous position. As regards
the above contention, it is to be noted that the petitioner herein is not a
party to the above proceedings. Even in the suit which the first
respondent and others are said to have instituted before the Civil Court
for enforcing their right to have drainage of water from the temple pond
through the landed property of certain persons, the petitioner herein was
not arraigned as a defendant. That being so, the arguments advanced in
the above regard are not having any relevance in the present case. It is
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apparent from the facts and circumstances of the case that the dispute
involved is purely of civil nature which is to be dealt with by the
competent Civil Court. Therefore, the prayer of the petitioner to quash
the Annexure-A5 order, deserves to be allowed.
In the result, the petition stands allowed. Annexure-A5 order
dated 31.01.2018 of the Sub Divisional Magistrate, Thalassery, in
M.P.No.18/2015, is hereby quashed.
(sd/-)
G. GIRISH, JUDGE
DST
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE A1 PHOTOCOPY OF THE JUDGMENT IN WPC 19680 OF
2014 DATED 17-10-2014
ANNEXURE A2 PHOTOCOPY OF THE COMPLAINT NBO. E
1-14153/14 BEFORE THE RDO, THALASSERY
ANNEXURE A3 PHOTOCOPY OF THE REPLY IN MP 18/2015 FILED
BY THE PETITIONER
ANNEXURE A4 CERTIFIED COPY OF THE CONDITIONAL ORDER
UNDER SEC. 133(1) CR PC DATED 05-10-2015
ANNEXURE A5 CERTIFIED COPY OF THE ORDER UNDER SEC 138
CRPC
