IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 Crl.MC.No. 4360 of 2005() ------------------------- CRRP.63/2002 of I ADDL. SESSIONS COURT, PALAKKAD .................... PETITIONER: ------------ C.V.RAMACHANDRAN, S/OV.ELAYUDHAN, CHATHANDAKATH, MANKARA, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.N.RAGHURAJ SRI.A.V.RAVI SMT.K.AMMINIKUTTY RESPONDENTS: ------------- 1. C.R.CHANDRAN, S/O.RAGHAVAN, CHATHANDAKATH, MANKARA, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.RAJESH SIVARAMANKUTTY FOR R1 SRI.V.RAGHUVARAN FOR R1 R2 BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-5-2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.15643 OF 2005 IN CRL.M.C.NO.4360/2005. DISMISSED. 29-5-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C.No.4360 of 2005 ---------------------------------------------- Dated, 29th May, 2008. ORDER This Crl.M.C. is directed against the order dated 20th September, 2005 in Crl. R.P.No.63/2002 on the file of the Ist Additional Sessions Court, Palakkad that arises from M.C. No.79/98 on the file of the Sub Divisional Magistrate, Palakkad. The petitioner herein, aggrieved by the order of the Sessions Court by which the revision preferred by the petitioner is dismissed, seeks an order to quash the proceedings of both the Sessions Court as well as the Sub Divisional Magistrate. 2. The criminal proceedings were initiated based upon a complaint preferred by the Ist respondent/complainant in which his grievance is that two trees standing in the property of the petitioner herein causes nuisance to the complainant. It is stated in the complaint that on the northern side of his property there was a big tamarind tree belonging to the petitioner herein and major portion of the tree covered the house of the complainant and was causing threat to the CRMC 4360/05 -:2:- building. It was alleged that the tree was likely to fall, and it was further alleged that due to the fall of the branches and leaves, roof tiles had already broken. It is also the case of the complainant that on the western side of the property and near the cattle shed belonging to the complainant, there was a big kazhani tree which was leaning towards the property of the complainant. The complainant apprehends that in case the branches fall down, it will cause damage to the shed as well as the cattle kept inside. The learned Sub Divisional Magistrate, after calling for report from the Village Officer passed preliminary order on 13-10-98 calling upon the petitioner herein and to show cause why a conditional order shall not be made absolute. Finally, the Sub Divisional Magistrate passed Annexure-3 order which was challenged in Crl.R.P.63/2002. The First Addl.Sessions Court as per the impugned order dismissed the Crl.Revision Petition. 3. I have heard the counsel for the petitioner, the Ist respondent and also the learned Public Prosecutor. CRMC 4360/05 -:3:- 4. I have gone through the materials available on record. The report of the Village Officer disclosed that the branches of the tamarind tree are leaning towards the building. 5. Counsel for the petitioner submitted that after passing the preliminary order, several years are over and nothing happened as apprehended by the respondent/complainant. The counsel also submitted that he has no objection in cutting and removing the branches of the tree which are leaning towards the building, provided, a fresh enquiry is conducted by the Village Officer. As seen from Annexure-4 order, the petitioner submitted Ext.D1 work memo but the Village Officer has not considered the same. Counsel for the petitioner as well as the Ist respondent prayed for a fresh consideration of the entire matter by the Sub Divisional Magistrate on the basis of a fresh report to be filed by the Village Officer concerned. 6. In the light of the above facts and circumstances, I am of the view that this matter need not be kept pending in the file and the same can be disposed of by directing the Sub Divisional Magistrate to consider the entire matter afresh on the CRMC 4360/05 -:4:- basis of the new report to be filed by the Village Officer concerned after the site inspection. 7. In the result, Annexure-3 and Anneuxre-4 orders are set aside. The Crl.M.C. is disposed of directing the Sub Divisional Magistrate Palakkad to consider the entire case afreshly on the basis of a fresh report to be filed by the Village Officer, Mankara after site inspection and the entire proceedings shall be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order and after giving notice to both the parties. V.K.MOHANAN, JUDGE. kvm/- CRMC 4360/05 -:5:- CRMC 4360/05 -:6:-