K.V. Abdul Rasheed vs State of Kerala

P. Ubaid, J.—The 3rd respondent herein had filed a complaint before the Sub Divisional Magistrate, Tirur u/s 133 of the Code of Criminal Procedure, against the 4th respondent herein for abatement of nuisance. In the said proceedings the Sub Divisional Magistrate initially passed provisional orders u/s 133(i)(d) of the Code of Criminal Procedure, and later passed a final order on 9.10.2013. The said order is sought to be quashed u/s 482 of the Code of Criminal Procedure by the petitioner herein, whose grievance is that he is actually the owner of the property and that the impugned order is legally and practically against him, when it is a fact that he was not a party in the proceedings before the Sub Divisional Magistrate.

When this Crl.M.C came up for hearing, the learned counsel for the 3rd respondent submitted that the 3rd respondent filed the said complaint against the 4th respondent on the bonafide belief that the property actually belongs to the 4th respondent, and that she was not aware of the fact that the petitioner herein is the true owner against whom she will have to obtain orders from the Executive Magistrate. On a perusal of the final order under challenge, this Court finds that the matter was not properly and legally dealt with by the Sub Divisional Magistrate. The impugned order was passed without the proper and necessary party on the array. Admittedly, the 3rd respondent cannot enforce the impugned order against the petitioner herein, and it would be of no use to enforce the order against the 4th respondent, who was a party in the proceedings. Of course, the 3rd respondent has her own explanation for not proceeding against the petitioner herein, who is the right person to be proceeded against. Her explanation is that she thought that service would be impracticable and she thought that the order obtained against the mother of the petitioner could be enforced against him.

On a perusal of the records and on hearing both sides, this Court finds that the matter will have to be properly and legally dealt with and decided by the Sub Divisional Magistrate, with the very necessary party on the array. Without the petitioner herein on the party array, a proper and legal decision cannot be taken on the complaint made by the 3rd respondent herein before the Sub Divisional Magistrate. On a perusal of the impugned order, this Court finds that the said order was passed by the Sub Divisional Magistrate without conducting a proper enquiry as prescribed u/s 137 of the Code of Criminal Procedure. When there is dispute on facts, the Sub Divisional Magistrate will have to record evidence, and he cannot take a decision or come to necessary findings to the best of his knowledge, or simply on the basis of the report submitted by the Village Officer. This Court finds that the impugned order is liable to be quashed, and the matter requires consideration afresh by the Sub Divisional Magistrate, as prescribed under the law.

In the result, this petition is allowed. The impugned order passed by the Sub Divisional Magistrate, Tirur on 9.10.2013 in C.M.P.No.12/2013, against the 4th respondent herein is quashed, and the matter is remitted to the Sub Divisional Magistrate for proper enquiry and procedure after bringing the petitioner herein on the party array as the right and necessary person to be proceeded against. If direct notice to the petitioner herein is found impracticable, other constructive modes can be resorted to during the proceedings. The Sub Divisional Magistrate is also directed to expedite the proceedings, and take a final decision within six months, after complying with the necessary procedure and formalities including impleadment of the petitioner herein as party in the proceedings.