1. Complaint petition has been filed before the Sub Divisional Magistrate (Executive First Class Magistrate) Alappuzha by respondents 3 to 13 alleging obstruction of a pathway alleged to be passing along the southern side of the Property belonging to the petitioners herein. It is alleged in that complaint petition that the respondents 3 to 13 are residing in their properties “situated on the just east of the Alappuzha-Thanneermukom Road” and the petitioners herein are “residing in their properties situated on the eastern side” of the respondent 3 to 13's properties. It is also alleged that the only access for respondents 3 to 13 to the “western road is through the southern part of the petitioners property comprised in Sy. No. 7/2 of Komalapuram Village” and the respondents 3 to 13 have “no other access”. “Adjoining to the pathway one and a half feet wide land is provided by the adjoining property holder Maniyappan of Kattuvelil” and he surrendered it for respondents 3 to 13. It is adjoining that portion of land the said pathway passes. Respondents 3 and 13 are using the said pathway passing through the petitioners property from time immemorial. The further allegation made in the complaint petition is that with the ulterior motive of obstructing respondent 3 to 13's user of the pathway, petitioners herein “dumped some waste material, thorns and other obstructions” and obstructed the pathway. They also asserted that the petitioners herein have no right or authority to obstruct the pathway passing through the petitioners property. The act of the petitioners herein is illegal and unauthorised. On the basis of the allegations made in the complaint petition and also relying on the reports filed by the Village Officer, Komalapuram dated 2.5.95 and 5.5.1995 respectively learned Sub Divisional Magistrate passed preliminary order under S. 133(1) Cr. P.C directing the petitioners herein to remove the obstruction caused by them to the user of the pathway (in the preliminary order the pathway is described as public pathway) within 7 days from the date of receiving of the preliminary order or in case of objection petitioners herein were directed to appear before the Sub Divisional Magistrate on 31.5.1995 at 2.30 p.m and to show cause why the conditional order should not be made absolute.

2. Petitioners herein filed objection before the Sub Divisional Magistrate on 27.9.1995 disputing the existence of any such pathway passing through their property and also user of any such pathway by the respondents 3 to 13. The alternative contention raised in the objection filed by them is that alternative pathway is available to them for their ingress and egress.

3. Learned counsel for respondents 3 and 13 fairly submitted before me that no specific allegation is made in the complaint petition filed by respondents 3 to 13 that the pathway alleged to be obstructed by the petitioners herein is a public pathway. The allegation made in the complaint petition is that only access to respondents 3 to 13 from their respective houses to the western road is through the southern part of the petitioners' property comprised in Sy. No. 7/2 of Komamapuram Village and they have been using that pathway from time immemorial. It is not possible to spell out a case from the averments or allegations made in the complaint petition that the pathway, the user of which is alleged to be obstructed is or may be lawfully used by the public. The reports of the village Officer, Komalapuram relied on by the Sub Divisional Magistrate to pass conditional order under S. 133(1) Cr. P.C do not furnish material to come to a finding regarding obstruction of any path way which is or may be lawfully used by the public. The expressions public ‘place’& ‘any way’ Illustrate very clearly that the Section 133 Cr. P.C comprehend not only public places but also “any way” which may be lawfully used by the public. Lawful use by the public of “any way” would bring it within the ambit of Section 133 Cr. P.C In Augusty v. Varkey (1989 (1) KLT 654) the following observation has been made by this court:

“10. Petitioner contends that there can be no public right over a private property and therefore that the order cannot be sustained. The specious argument cannot be supported on principle or precedent. Petitioner's argument carried to its logical conclusions, would mean that Ss. 132 to 138 of the code are limited in their operation only to places dedicated to public. S. 133 refers to the power in a magistrate to remove obstruction or nuisance if he considers fit, “from any public place or from any way river or cannel which is or may be lawfully used by the public”

The distinct expressions ‘public place’ & any way clearly Illustrate, that the section comprehends not only public places, but “any way” would bring it within the ambit of the section. As stated in Ramjank Patwa… v. Emperor…Opposite Party. (AIR 1937 Patna 276) a private place may be frequented by public and may become a public place for the time it is used. That apart, “public place” for purpose of the section, is not restricted to a place dedicated to public. The expression ‘public’ or ‘public place’ has been understood in a larger sense, In R v. Wellard, (1884) 14 Q.B.D 65). a place was understood as:

“a place where the public go, no matter whether they have a right to go or not” The decision in R. Wellard has been approved in a long catina of decisions by Indian courts. In State v. Scaria (1996 KLT 780), this court held that ‘public place’ need not be public property. It would be a public place’ if public could resort to that. In Re Muthuswamy Iyer (AIR 1937 Mad. 286), the court held that a place where public are in the habit of going, is a public place. Decisions in Deepa v. Sub Inspector (1986 KLT 158) and Chacko v. Mariakutty (1987 (1) KLT 32) also take a similar view. In Black's Law Dictionary, a public place is understood as:

public place. A place to which the general public has a, right to resort, not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighbouring public (e.g a park or public beach). Also a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public, and where the public gather together or pass to and fro.

Public Passage. A right, subsisting in the public, to pass over a body of water, whether the land, under it be public or owned by a private person. This term is synonymous with public highway, with this difference, by the latter is understood a right to pass over the land of another by the former is meant the right of going over the water which is on another's land.

If public have access to a place by right, permission/or use it is a public place, even if it is not public property. One test of ascertaining this, will be to see whether there is a right vested in a large number of persons as to make them unascertainable and make them a class - unascertainable not by vastness of numbers, but by Character of class. So viewed, the mountain road part of which runs through the petitioner's private property, is a public path to which unascertained number of people make resort. The decision in C.V Muthuvelappan v. K.V.N Nair (AIR 1964 Kr. 252) relied on by counsel for petitioner is of no assistance in deciding the question raised in this case. Question for consideration therein related to riparian rights. Riparian right is a right enuring to ascertained riparian users, and thus is a right more in the nature of a right in personam. What is part of a larger pathway, and what is found to be resorted to by public in general (part of it admittedly is a pathway, according to petitioner) is a public pathway amenable to S. 133. As noticed before, the finding of fact was arrived at on good material. No grounds are made out for interference. In Narayanan Tiwary v. State of W.B (AIR 1954 S.C 726), the Supreme Court held, where the trial magistrate had dealt with the matter fully on evidence, High Court would be right in declining to interfere with the finding in revision. The case on hand, is such”

4. There is no material whatsoever to come to a finding that public have access to the pathway alleged to be obstructed by right, permission or use. There is total dearth of evidence to prove that the pathway alleged to be obstructed is a public pathway.

5. Public nuisance is an offences against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. Public nuisance is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. Public nuisance causes injury, obstruction, danger or annoyance to the persons who may have occasion to use public right. The decisive factor is the quantum of annoyance or discomfort in contradistinction to private nuisance which affects an individual, To prevent public nuisance is the object and public purpose behind S. 133 Cr. P.C that if the magistrate fails to take immediate recourses to S. 133 irreparable damage would be done to the public (see Vasant Manga Nikumba v. Baburao Bihikanna Naidu, 1995 Supp (4) SCC 54) No evidence is forthcoming to show that by the alleged obstruction of the pathway any annoyance is caused to whole community in general. Evidence is also wanting to show that petitioners herein neglected. to do anything which common good required. No evidence of causing any common injury, damage or annoyance to the public who may have occasion to use a public pathway is available. In the absence of any material it is not possible to hold that irreparable damage was cause to the public due to alleged obstruction and the learned magistrate should not have taken recourse to s. 133 Cr. P.C It is needless to point out that the powers conferred on Sub Divisional Magistrate or other executive magistrates specially empowered by the State is intended to be exercised only in urgent matters under exceptional and extraordinary circumstances. Section 133 Cr. P.C Should not be permitted to be used to wreak private vengeance and for settling private dispute between two parties. The provisions in the Section are to be sparingly used with care and caution and the magistrate has to be on his guard. Legislature provided for enquiries at two different stages, one being preliminary and other final in order to check a tendency on the part of certain litigants to make use of Section 133 as substitute for enforcement of their private rights in a civil court and to prevent frivolous litigation (See Mohammed Master v. Beeran, 1980 KLT 680. The dispute between the parties (petitioners and respondents 3 to 13) is a private dispute. The Supreme Court in Vasant Manga Nikumba'as case (cited supra) held that proceeding under S. 133 Cr. P.C is not intended to settle private disputes or a substitute to settle civil disputes, though the proceedings under 133 is more in the nature of civil proceedings in a summary manner; It is to be repeated here that the object and purpose of sec. 133 CRPC is not to prevent private nuisance on that ground this Crl. M.C is to be allowed. Even if the allegations made in the complaint petition filed by respondents 3 to 13 are accepted in their entirety and taken their face value conclusion possible is that a case of private nuisance alone is made out and the impugned order is therefore not sustainable.

6. Even if it is assumed that specific allegation is made in the complaint petition that User of public pathway is obstructed by the petitioners herein the learned magistrate who initiated proceedings under Section. 133 Cr. P.C on the basis of the complaint petition filed by respondents 3 to 13 and also relying on the reports of the village officer regarding the obstruction of pathway is not justified in passing the absolute order under section 138 Cr. P.C When a person who is alleged to have caused obstruction to the user of a public pathway and against whom an order has been passed under Section 133(1) Cr. P.C appears before the magistrate it is obligatory to question him as to whether he denies the existence of any public right in respect of the way. On a careful perusal of the records, I find no material to show that the petitioners appeared before the magistrate personally and the learned magistrate questioned them regarding existence of public pathway i.e whether they deny the existence of public pathway. However, I have to proceed on the premise that by filing objection disputing the existence of pathway alleged to be obstructed petitioners denied the existence of the public pathway (really no question of disputing the existence of public pathway arises on the ground that no case of existence of public pathway and its obstruction is pleaded by respondents 3 to 13). As the petitioners denied the existence of pathway alleged to be obstructed by them the learned magistrate is not competent to pass any order under Section 136 Cr. P.C Conditional order has been passed fails to appear on receipt of the preliminary order and denies public right and thereafter fails to appear to lead evidence. (See Madukani v. Kunju Kochu, 1981 KLT 692).

7. Even if it is assumed that petitioners denied existence of the public pathway it is to be held that petitioners have not adduced any reliable evidence to substantiate their objections and it is to be held that even after the party against whom the conditional order is passed defaulted to let in evidence to substantiate his objection conditional order passed cannot be made absolute by the subdivisional magistrate without taking evidence of the other party at whose instance the proceeding have been started. The Division Bench of this Court in Velayuhdan v. Kesavan Nair, 1968 KLT 889 approvingly cited observation made by Anna Chandi, J. in Ambi v. State of Kerala (1961 KLT 617) that the conditional order cannot be made absolute without the part (Complainant) being called upon to substantiate the allegation, which necessitated the passing of conditional order by producing legal evidence. It is to be pointed out that entering on the second stage arises only if the party against whom conditional order is passed defaulted to adduce reliable evidence in support of his denial of existence of public right. Magistrate has to take evidence of the party at whose instance the conditional order is passed before the disposal of the case as in a summons case. S. 254 which comes in Chapter XX dealing with the trail of summons cases says that magistrate should hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution and thereafter take the evidence adduced by the accused. The words “evidence in the matter” employed in Section 138(1) means evidence of the complainant. The view taken by me gets support from the law laid down by the Division Bench in Velayudhan's case (cited supra) No evidence has been adduced by the respondents 3 to 13 to substantiate the allegations made in the complaint petition either on 8.11.95 or on any earlier date of posting. On 8.11.95 on the ground that petitioners adduced no evidence conditional order has been made absolute by the learned magistrate and on that ground also the order impugned cannot be sustained. I may also point here that the two reports of the Village officer, Komalapuram are of no avail to the respondents 3 to 13 on the ground that proceeding under S. 133 at its commencement is ex parte and it is on the basis of reports of the village officer conditional order has been passed under S. 133 by the magistrate. The reports of village officer on which sub divisional magistrate relied upon to pass conditional order cannot be treated as evidence against the party petitioners herein) against whom conditional order has been passed (See Mohammed Master v. Beeran and Velayudhan v. Kesavan Nair) (cited supra)

8. Local inspection was conducted by the learned magistrate and Supreme Court in Keisam Kumar Singh v. State of Manipur (1985 SCC (Cri) 446) held that normally a court is not entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. The Supreme Court in Pritham Singh v. State of punjab, (AIR 1956 SC 415) (page-424), (col. 1) held thus:

“A Magistrate is certain not entitled to allow his view of observation to take the place of evidence because such view or observation of his cannot be certainly not be in a position to furnish any explanation in regard to the same”.

9. Learned Sub Divisional Magistrate in the impugned order observed that, “Both parties have not filed any other documentary evidence or other evidence. Petitioners advocate submitted that on the basis of the report village officer, Komalapuram and site inspection report this conditional order may be made absolute”. Thus, it is clear from the impugned order (absolute order) that learned magistrate relied on reports of village officer which cannot be treated as evidence against the petitioners herein and the local inspection conducted by her was also relied on for making conditional order absolute. There is absolutely no evidence to substantiate the contention of the respondents 3 to 13. As no enquiry as contemplated by section 138 has been conducted by the learned magistrate the absolute order passed by the magistrate under section 138 Cr. P.C directing Petitioners herein to remove the obstruction alleged to be caused by them is unsustainable. The impugned order passed by the learned magistrate and affirmed in revision by the learned Sessions Judge is liable to be set aside.

10. Crl. M.C is allowed setting aside the impugned order. It is open to respondents 3 to 13 to approach the competent civil court for redressal of their grievance regarding alleged obstruction of the pathway, if so advised.