IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 Crl.Rev.Pet.No. 3163 of 2009() -------------------------------------------- AGAINST THE ORDER IN M.C.153/09 OF THE THAHSILDAR & EXECUTIVE MAGISTRATE, THIRUVANANTHAPURAM DATED 18.9.2009. ............... REVN. PETITIONER(S): COUNTER PETITIONER --------------------------------------- SAJI KUMAR, PUNNAMOODU, KALLIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.SOJAN MICHEAL SMT.JENCY MICHEAL RESPONDENT(S): STATE & PETITIONER --------------------------------- 1. THE STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. TAHASILDAR & EXECUTIVE MAGISTRATE, THIRUVANANTHAPURAM. 3. KRISHNA PANICKAR, SANTHA NIVAS, PUNNAMOODU, KALLIYOOR, THIRUVANANTHAPURAM. ADV. SRI.SREEKANTH S.NAIR FOR R3 SRI.K.P.WILSON FOR R3 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR R2 BY MR. G. SUDHEER. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.R.P.No. 3163 OF 2009 ----------------------------------- Dated this the 4th day of November, 2010 O R D E R This revision petition is filed challenging the order passed by Executive Magistrate under section 138 of the Code of Criminal Procedure ('the Code' for short). 2. A petition was filed by third respondent before the Sub Divisional Magistrate on 23.11.2007 alleging that most of the branches of a tamarind tree standing in the property of one Vijayakumari were stretching towards his compound and the leaves of the tamarind tree fell in the well and polluted the water. It is also alleged that tree may fall on the roof of the house and compound wall and and it may cause damage not only to the well but also to human life. A request was therefore made to order cutting and removal of tamarind tree. 3. A preliminary order passed by Sub Divisional Magistrate on 6.5.2009 under section 133 of the Code. Thereafter, Smt. Vijayakumari entered appearance and filed a statement that the tamarind tree actually stood in the property of her brother, who is Crl.RP.3163/09 2 petitioner herein. Thereafter, petitioner appeared before the Executive Magistrate and agreed to cut and remove the branches of the tree. The case was thereafter taken up for hearing on 29.7.2009. But on 25.8.2009, 3rd respondent filed a petition stating that his grievance is still remained unsolved. Therefore, Executive Magistrate passed the impugned order directing the petitioner herein to cut and remove the tamarind tree within seven days from the date of order, failing which, he was liable to be punished under section 188 of IPC. etc. 4. Heard learned counsel for petitioner, 3rd respondent and also public prosecutor. Learned counsel for petitioner argued that no evidence was taken in this case and hence the final order passed under section 138 of the Code is illegal. It is also argued that the undertaking made by counsel to cut and remove the branches of tamarind tree will not give any jurisdiction to the Executive Magistrate to pass the impugned order. It is also submitted that there must be a public nuisance to proceed against petitioner under section 138 of the Code, but in this case, there is only an alleged private nuisance, even if the entire allegations are accepted. Crl.RP.3163/09 3 5. Learned counsel for 3rd respondent argued that the revision petitioner had agreed to cut and remove the branches of tamarind tree which was contaminating water in the well of the 3rd respondent and Executive Magistrate was also satisfied of such contamination on an inspection made. Therefore, it cannot be said the order is passed without any evidence. Though the details of the inspection was not recorded to in the order, such inspection was made and it is only after being satisfied of the position, that impugned order is passed, it is submitted. 6. On hearing both sides and on perusing the order under challenge, I find that the said order is not sustainable either on law or on facts for the following reasons: As per the impugned order, there is a preliminary order dated 6.5.2009 in M.C.153/2009 issued by Sub Divisional Magistrate and such order is made absolute and accordingly a direction was issued to the petitioner to “cut and remove” the tamarind tree. On a perusal of the records, I could not come across any preliminary order passed either on 6.5.2009 or on any other date directing the petitioner to “cut and remove” tamarind tree. 7. In the order dated 6.5.2009, there is no direction to cut Crl.RP.3163/09 4 and remove the tamarind tree. The said order was passed not against petitioner but it was passed against his sister. She entered appearance and showed cause, filed statement and it seems proceedings against her was dropped also. Thus no order was actually passed against petitioner under section 133 of Cr.P.C. For this reason itself the order under challenge is liable to be set aside. 8. A reading of Sec.138 would show that under section 138 of the Code, Magistrate can only make preliminary order passed under section 133 absolute, either without modification or with modification. But in this case, no such order was passed against petitioner under section 133 of the Code. A preliminary order dated 6.5.2009 which is purported to be passed by the Sub Divisional Magistrate under section 133, which is referred to in the impugned order is not an order passed against petitioner. Therefore, the learned Executive Magistrate committed illegality in passing an order under section 138 without there being any preliminary order issued against revision petitioner under section 133 of the Code. 9. It is also to be mentioned here that even if there is an Crl.RP.3163/09 5 order under section 133 of the Code, where the person against whom an order is made, appears and shows cause against the order, the Magistrate is bound to take evidence in the matter as in a summons case. Without evidence being taken as laid down in Sec.138 any order passed under the said section will not be sustainable. For the above reasons, in the absence of a preliminary order under section 133 being passed against petitioner the impugned order passed under section 138 cannot be sustained and it is liable to be set aside and I do so. In the result, the following order is passed: 1. The impugned order is set aside. 2. The matter is remanded to be Executive Magistrate for disposal in accordance with law. This petition is allowed. K. HEMA, JUDGE. Sou.