~~~~~~~ An order passed by the Revenue Divisional Officer, Kottayam, in his capacity as Executive Magistrate, in a proceeding initiated under Section 133 Cr.P.C. is under challenge in this proceeding brought under Section 482 Cr.P.C. Annexure-A5 is the complaint filed by one Sukumaran before the Executive Magistrate. A reading of this complaint shows that his grievance is prominently individual in nature. Any way, the Executive Magistrate proceeded under Section 133 Cr.P.C. and passed an order dated 23.8.2013 in proceeding No.1162/2013. Annexure-A8 is the said order. It is not known definitely whether it is a provisional order passed under Section 133 Cr.P.C or a final order passed under Section 138 Cr.P.C. The last portion of the order shows that it must be a provisional order because, the respondent is required to appear on 4.9.2013 and submit his objections. But, the body of the order shows that the Executive Magistrate had infact conducted enquiry on different dates, examined some witnesses and came to a finding on public nuisance. If what is issued by the Executive Magistrate is only provisional order, he is not expected to conduct a detailed enquiry at the preliminary stage and come to a definite finding on the allegations made in the complaint. If he has made such an enquiry in detail and has come to a finding at the very preliminary stage itself, the provisional order passed by the Executive Magistrate will become bad and illegal. At the preliminary stage, in such a proceeding, the Executive Magistrate cannot make a definite finding on the merits of the allegations. Since the impugned order indicates at the last portion that it is a provisional order, the aggrieved party cannot file a regular revision against the order. I find that the Executive Magistrate is not definite and certain what order he has passed. The Annexure-A5 complaint shows that what is alleged definitely is not a case of public nuisance. Anyway, those things will have to be properly enquired into by the Executive Magistrate as prescribed under the law. When a complaint alleging public nuisance comes, his preliminary concern must be to think whether the complaint or dispute involves any public nuisance. If he is so satisfied prima facie by some materials, he can issue a provisional order requiring the other party to make appearance on a day specified by him, and directing him to file objections, if any. If the allegations of public nuisance are infact denied by the other side, the Executive Magistrate will have to conduct a proper enquiry as prescribed under Section 137 Cr.P.C. Only on the basis of such an enquiry conducted properly under the law, including examination of materials or documents and examination of witnesses as is done in a summons trial, the Executive Magistrate can come to a definite finding on the alleged public nuisance, and pass a definite final order. Only such a final order can be enforced under the law. In a proceeding under Section 482 Cr.P.C., this Court can examine those aspects, and this Court can direct proper enquiry and decision if the order passed by the authority is not proper and legal, and also does not show what type of order it is. 2. As discussed above, the Executive Magistrate will have to conduct a proper enquiry on Annexure-A5 complaint. Before proceeding to pass provisional order according to law, he will have to examine whether the complaint reveals a grievance of public nuisance, or whether it is only an individual grievance. If it is only an individual grievance, he will not have jurisdiction to proceed under Section 133 Cr.P.C. The aggrieved party will have to pursue appropriate civil action. Of course, if he finds something involving public nuisance, he can pass a provisional order properly, requiring the other side to make appearance on a day specified by him and file objections, if any. If the other side objects, he will have to conduct a proper enquiry under the law as observed earlier, examine all the necessary materials including documents, examine the witnesses on both sides as is done in a summons trial and come to a definite finding supported by reasoning. He must be aware that his function is judicial in nature. He must also be aware that he has dual functions under the law; one as an officer of the Revenue, and the other as Executive Magistrate, acting under the provisions of the Code of Criminal Procedure. He must act in cases like this, as a judicial authority, and not merely as an executive authority. He must know the scope of his functions as Executive Magistrate in a proceeding brought under Section 133 Cr.P.C. Here I find that the Executive Magistrate is not aware of the scope of his functions and the limits of his authority, as Executive Magistrate. The impugned order cannot be said to be a provisional order because the Executive Magistrate has wrongly come to a finding at the very preliminary stage itself. This is liable to be set aside, and the Executive Magistrate will have to proceed afresh as indicated above.
In the result, this Crl.M.C. is allowed. The impugned order passed by the Executive Magistrate (Annexure-A8) is set aside and the authority below is directed to proceed properly according to law as indicated above, and make legal orders as indicated above. The parties will appear before the court below on 5.1.2015. This being an old matter, the authority below will make earnest efforts to dispose of the matter within two months from 5.1.2015.
sd/-
P.UBAID, JUDGE.
ps/15/12/2014 //True copy// PA to Judge