IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Crl.MC.No. 3382 of 2009() ------------------------------------- MC.NO.18/2008 OF SUB DIVISIONAL MAGISTRATE COURT, THRISSUR. CRRP 73/2008 OF SESSIONS COURT, THRISSUR. PETITIONER(S): REVISION PETITIONER/RESPONDENT: --------------------------------------------------------------------------------- KOCHUTHRESSIA, CHIRAMEL HOUSE, JANATHA ROAD, ANCHERY DESOM, OLLUR VILLAGE, THRISSUR. BY ADV. MR.RAJIT RESPONDENT(S): STATE: --------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DAVIS, S/O. KONIKKARA PORINCHU, OLLUR VILLAGE, THRISSUR DISTRICT. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR R2 BY ADVS.MR.M.R.DHANIL, MR.JOBY JOSEPH (THRISSUR). THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3382 OF 2009 ------------------------------------------ Dated 19th March 2010 O R D E R Petitioner filed Crl.R.P.73/2008 on the file of Sessions court, Thrissur challenging Annexure-A order passed by the Sub Divisional Magistrate, Thrissur under Section 138 of Code of Criminal Procedure contending that the order was passed without affording opportunity to the petitioner to show cause and also to adduce evidence and that order was passed based on a report submitted by the Tahsildar and in such circumstances, the order is to be quashed. By Annexure-C order learned Sessions Judge dismissed the revision holding that learned counsel appearing for the revision petitioner was Crmc 3382/2009 2 not present in court continuously, after receipt of the records and the counsel appearing for the second respondent produced a photograph which shows that the coconut tree is standing in a dangerous position over the residential house of the second respondent and in such circumstances, there is no illegality or impropriety in the impugned order. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-C order contending that revision petition was posted on 18/6/2009 awaiting records and on that day the counsel appearing for the petitioner had entrusted the matter with another counsel to represent the case as he has to appear in a case before another court where evidence is recorded and that counsel had to go to his house on account of hospitalisation of his mother and he failed to represent the matter and it is on that Crmc 3382/2009 3 account learned Sessions Judge did not get the opportunity to hear the petitioner and therefore, the order is to be quashed and revision is to be reheard. 2. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 3. It is the case of the petitioner in his revision petition filed before the learned Sessions Judge that he was not given opportunity, to appear or adduce evidence before the Sub Divisional Magistrate before Annexure-A order under Section 138 of Code of Criminal Procedure was passed, making absolute the conditional order passed under Section 133. Annexure-C order of the learned Sessions Judge does not show that record of the Sub Divisional Magistrate reveal that sufficient opportunity was granted before the final order was passed Crmc 3382/2009 4 by the Sub Divisional Magistrate. Annexure-C order shows that as per the findings the learned counsel appearing for the petitioner did not appear after the records were received by the revisional court from the Sub Divisional Magistrate. Learned counsel submitted that after the records of the case from the Sub Divisional Magistrate were received by the learned Sessions Judge, the first posting was on 18/6/2009 and failure of the counsel to make representation was not due to any willful negligence or laches but the counsel had to appear in another court and he had entrusted the matter with another counsel who had to return to his house consequent to the illness of his mother who is hospitalised and in such circumstances, proper representation could not be made. 4. As Annexure-C order does not Crmc 3382/2009 5 show that relevant aspects were considered by the learned Sessions Judge and petitioner did not get the opportunity to be heard, it is in the interest of justice to direct the learned Sessions Judge to re-hear Crl.R.P.73/2008 and pass appropriate order in accordance with law. Petition is allowed. Annexure-C order is quashed. Sessions Judge, Thrissur is directed to re-hear Crl.R.P.73/2008, as expeditiously as possible and pass orders in accordance with law. It is made clear that petitioner shall appear before the Sessions Judge and shall not seek adjournment. Parties to appear before the Sessions court on 8/4/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.