IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 Crl.Rev.Pet.No. 1853 of 2008() ------------------------------ NO.K.4796/2007 of SUB DIVISIONAL MAGISTRATE, KOTTAYAM. REVN. PETITIONER: SULAIMAN RAWTHER, AGED 46 S/O KUTTI RAWTHER, PEEDIKAYIL VEEDU, ALAPRA KARA, MANIMALA. BY ADV. SRI.P.A.MOHAMMED SHAH RESPONDENTS: 1. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, MANIMALA, KOTTAYAM DISTRICT. 3. TAHSILDAR, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 4. SECRETARY, MANIMALA GRAMA PANCHAYATH, KOTTAYAM DISTRICT. 5. KUNJU MEERAN RAWTHER, PRESIDENT, MUSLIM JAMA-ATH, ALAPRA, MANIMALA. 6. M.K. ABDUL JABBAR, SECRETARY, MUSLIM JAMA-ATH, ALAPRA, MANIMALA. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.1853 of 2008 = = = = = = = = = = = = = = Dated this the 11 th day of June, 2008 ORDER The petitioner, who is the B party in the proceedings initiated as K 4796/07 before the Sub Divisional Magistrate, Kottayam under Section 133 Cr.P.C alleging public nuisance in the form of Mahagony trees said to be dangerously positioned as against the property of A party, challenges Annexure C conditional order passed under Section 133 Cr.P.C. 2. As per the conditional order dated 28.04.08 the petitioner has been directed to cut the Mahagony tree having a girth of 40 inches within 20 days of receipt of the order or to appear before the Taluk Executive Magistrate at 11 a.m on 28.05.08 and show cause as to why the conditional order should not be made absolute. The petitioner contends that he had filed objections before the learned Magistrate. If so, the Magistrate will have to conduct an enquiry under Section 137(2) Cr.P.C and pass final orders before which there cannot be any direction to cut or remove the Mahagony trees in question. The revision Crl.R.P.No.1853 of 2008 2 petitioner has a grievance that pursuant to the orders passed by the Sub Divisional Magistrate, the petitioner had pruned one Mahagony tree and one Anjili tree and tied two trees with wire ropes which fact has been made mention of in Annexure C order dated 28.4.08. It is not discernible to this Court as to under what power the Sub Divisional Magistrate passed such an order and enforced the same without passing any final orders in the proceedings initiated under Section 133 Cr.P.C. It is also open to the B party to show before the Magistrate that for abetting the nuisance, cutting or removal of trees may not be necessary and that cutting a few branches will suffice. 3. In any view of the matter, the learned Magistrate shall consider whether the action already taken by the B party will suffice to the nuisance alleged and if not he shall conduct an enquiry by taking evidence and then pass final orders accordingly. This Crl.R.P is accordingly disposed of directing the Sub Divisional Magistrate to pass final orders after conducting an enquiry as contemplated by law. V. RAMKUMAR, JUDGE sj