IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Crl.Rev.Pet.No. 3122 OF 2008() ------------------------------ MC 278/07(B.6-42183/07) ON THE FILE OF EXECUTIVE MAGISTRATE COURT, NEYYATINKARA. REVN. PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------- VENUGOPALA KURUP, PRESIDENT, SREE KRISHNA SWAMI KSHETHRAM TRUST, VLATHANGARA, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: -------------------------- 1. C. SOMAN, PRESIDENT, ST. PETERS U.P SCHOOL PTA COMMITTEE, VLATHANGARA, NEYYATINKARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 3122/2008 OR DER ON CRL.M.A. 9373 OF 2008 IN CRRP 3122 OF 2008 DISMISSED 18.11.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3122 OF 2008 ------------------------------------------ Dated this the 18th day of November, 2008 O R D E R Revision is filed challenging the order passed under section 138 of Code of Criminal Procedure by Executive Magistrate, Neyyattinkara making the order passed by the Sub Divisional Magistrate, Thiruvananthapuram under section 133 absolute. The records of Executive Magistrate establish that on receipt of a complaint from members of Parent Teachers Association of St.Peter's U.P. School, Vlathankara, Sub Divisional Magistrate called for a report from the Village Officer. The allegation in the complaint was that Banyan trees belonging to the revision petitioner are slanting dangerously towards the school building and it is likely to fall and therefore dangerous to the students and the building and hence the branches of the trees slanting towards the school building are to be removed. The report filed by the Village Officer dated 22.8.2007 is to the effect that branches of three banyan trees, belonging to the temple, are slanting towards the school building and insects are falling from the trees over the building and the dry leaves and CRRP 3122/08 2 branches would also fall on the school building causing damages to the building and therefore the branches are to be removed. On receipt of the report the Sub Divisional Magistrate passed an order under section 133 of Cr.P.C. directing revision petitioner to remove the branches of the banyan tree slanting dangerously towards the school building. The revision petitioner was directed to appear on 7.11.2007 and show cause, if any, why the order shall not be enforced. Thereafter the file was transferred to Executive Magistrate, Neyyattinkara. The case was posted before Executive Magistrate on 7.11.2007 and 12.3.2008. On 7.11.2007 revision petitioner appeared and denied the allegations and stated that the branches slanting towards the school building were removed. Based on another report filed by the Village Officer to the effect that the branches were not removed, final order was passed under section 138 directing removal of the branches within fifteen days. The order is challenged in this revision petition. 2. Though notice was issued to first respondent the President of the Parent Teachers Committee, he did not appear. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. As rightly argued by the learned counsel an order to CRRP 3122/08 3 remove the branches of the tree or the tree could be passed under section 138, making absolute with or without modification, the order passed under section 133, only if the tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and in consequence removal of the tree or its branches is necessary as provided under clause (d) of sub section (1) section 133 of Cr.P.C. Though there is an allegation in the complaint filed by the Parent Teachers Association that the branches are slanting towards the school and it is a danger to the students and the building, the report submitted by the Village Officer, based on which an order under section 133 of Cr.P.C. was passed, does not show that either the trees or their branches are in such a condition that they are likely to fall and thereby cause danger to the students or teachers or any person passing nearby. Therefore based on that report an order under section 133, for its removal could not have been passed. 4. The records of the Executive Magistrate shows that as directed revision petitioner appeared and denied the allegation and contended that the branches slanting towards the school were removed and the trees are not standing in such a condition CRRP 3122/08 4 that it is likely to fall and thereby cause any danger to the students or teachers. When the person against whom an order under section 133 is passed and appeared before the Executive Magistrate, section 138 mandates that Executive Magistrate shall take evidence as in a summons case and only after considering the evidence the order under section 133 could either be made absolute with or without modification. The record shows that no evidence as provided under section 138(1) was recorded. Therefore for that sole reason the order is illegal as it was not passed in compliance with the procedure provided under section 138 of Cr.P.C. Ordinarily in such a case the case is to be remanded to the Executive Magistrate for fresh disposal after complying with the procedure. But as pointed out by the learned counsel, when the very order passed under section 133 is illegal and on the materials such an order cannot be made absolugte, it is not necessary to remand the case to the Executive Magistrate. When a conditional order is passed under section 133, Executive Magistrate or Sub Divisional Magistrate shall direct the party against whom the order is passed, to appear and show cause why the order passed under section 133 shall not be made absolute. The order and notice served on the revision petitioner is not directing the revision petitioner to CRRP 3122/08 5 appear and show cause why the order shall not be made absolute. Instead it is to the effect why the order shall not be enforced. It cannot be the order provided under sub section (1) of section 133. Whatever it be, unless the materials before the Executive Magistrate establish that the trees or their branches are in such a condition that they are likely to fall and thereby cause danger to the students or the teachers or anybody else an order for the removal of the branches or the trees under section 133(1)(d) of Cr.P.C. cannot be passed. If such an order cannot be passed under section 133, the order cannot be made absolute with or without modification. As the very order passed under section 133 is illegal, the entire proceedings is dropped. Revision is allowed. The order passed by the Executive Magistrate, Neyyattinkara in M.C.278 of 2007 under section 138 of Code of Criminal Procedure is set aside. Proceedings are dropped. Send back the records. M. SASIDHARAN NAMBIAR, JUDGE Okb/-