IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 Crl.MC.No. 4475 of 2005() ------------------------- CRRPP.15/2005 of SESSIONS COURT, TRIVANDRUM .................... PETITIONER: REVISION PETITIONER ------------------------------- ANTONY, NEAR NEW STAR HOUSE, VATTAPPARA, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: REVISION CR. PETITIONER ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ENOSE, NEW STAR HOUSE, PANTHAPLAVU, VATTAPPARA, THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) FOR R2 R1 BY P.P. SRI C.M. KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4454 OF 2006 IN CRL.M.C. 4475/05 DISMISSED. 5-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.4475 of 2005 ---------------------------------------------- Dated, 5th June, 2008. ORDER The petitioner herein is the counter petitioner in M.C.No.148/2004 on the file of the Tahsildar and Executive Magistrate, Nedumangad. By Annexure C order, in exercise of the powers vested in the Executive Magistrate under Section 133 of Cr.P.C., the petitioner herein was directed to cut and remove the coconut tree within 7 days from the date of receipt of the order. Aggrieved by the above order, the petitioner filed Crl.R.P.No.15/2005 before the Sessions Court, Thiruvananthapuram and the Sessions Court dismissed the same by its order dated 20-7-2005. Challenging the above orders of the courts below, this petition is preferred under section 482 of the Cr.P.C. It is the case of the petitioner that though the petitioner herein had appeared before the Executive Magistrate and filed Annexure B objection, the same was not considered and no opportunity was given to substantiate his contention and therefore, the order passed by the Tahsildar and CRMC 4475/05 -:2:- the Executive Magistrate, Nedumangad is absolutely illegal and baseless. So according to the petitioner, the Sessions Court has also failed to consider the grievance of the petitioner. Therefore, the order passed by the revisional court as well as the Executive Magistrate are liable to be set aside. 2. I have heard the counsel for the petitioner as well as the counsel for the 2nd respondent and also the learned Public Prosecutor. 3. The 2nd respondent herein preferred a petition dated 21-6-2004 complaining that a coconut tree owned by the petitioner herein is standing in a dangerous position by the side of the complainant's house causing danger to the life and property of the petitioner. The Sub Divisional Magistrate as per Annexure A order directed the petitioner under section 133 of Cr.P.C. to cut and remove the said tree within 7 days from the date of receipt of the order or to appear before the Tahsildar and Executive Magistrate Nedumangad on 25-8-2004 at 11 a.m. and show cause why the preliminary order should not be made absolute. The petitioner submits that, accordingly, he CRMC 4475/05 -:3:- had preferred Annexure B objection. Annexure B is dated 27- 12-2004. Finally, by order dated 3-1-2005 in M.C.148/2004, the Tahsildar and Executive Magistrate in exercise of his powers under sections 136 and 138 of Cr.P.C. directed the petitioner herein to cut and remove the coconut tree in question within 7 days from the date or receipt of the order. Though the above order challenged in revision, the Sessions Court as per Annexure C order dismissed the revision. It is the above orders of the courts below are challenged in this petition. 4. The learned counsel appearing for the petitioner submitted that though the petitioner had preferred objection, the same was not considered by the Tahsildar and Executive Magistrate and also no opportunity was given to adduce evidence. According to the counsel, as per section 138 of Cr.P.C., an opportunity shall be given to adduce evidence as in the case of a summons case. 5. Per contra, the counsel for the 2nd respondent submitted that the petitioner herein has miserably failed to CRMC 4475/05 -:4:- make any written objection on 25-8-2004 as directed in Annexure A preliminary order and there is no material to show that the petitioner herein had adopted any step to defend the case effectively and for adducing evidence to substantiate his contention and averments if any. 6. I have gone through the available materials and also considered the contentions raised by both the counsel for the petitioner as well as the 2nd respondent. It is borne out from the records that the 2nd respondent preferred the petition dated 21-6-2004 and thereafter the matter is pending before various forums even though the matter has been finally decided by the Executive Magistrate as well as the revisional court. The grievance of the petitioner is that he was not given opportunity to adduce evidence to substantiate his grievance. From Annexure A order, it is clear that he was directed to appear before the Tahsildar and Executive Magistrate on 25-8- 2004 and to show cause why the preliminary order should not be made absolute. From Annexure C order order it appears that the petitioner had appeared before the Tahsildar and CRMC 4475/05 -:5:- Executive Magistrate on 25-8-2004, but no written objection is seen to have been filed on appearance and no request is made for adducing further evidence before the authority concerned. It is also seen from Annexure D order of the revisional court that the petitioner herein was not interested to defend the case effectively and he was absent while the above revision petition was disposed of. However, it is also disclosed from the records that before issuing Annexure A order, the Sub Divisional Magistrate had called for the report of the village Officer, Vattappara and he had furnished a report No.487/04 and the Sub Divisional Magistrate issued Annexure A order after considering the above report. It is also pertinent to note that before passing Annexure C final order, the Tahsildar and Executive Magistrate had physically inspected the site and found and he personally satisfied that there is every possibility for causing danger to the life and property of the petitioner therein who is the 2nd respondent herein. It appears that after the inspection done by the Tahsildar, he had issued notice to both parties to appear before him on 27-12-2004 CRMC 4475/05 -:6:- and it was on this day the petitioner herein filed Anneuxre B objection. Though the petitioner was directed to appear and furnish the show cause on 25-8-2004, he had not chosen to file any written objection or sought time to file objection and to adduce evidence. So it seems that the petitioner is least interested in defending his case before the concerned authority. It is also borne out from the records that the Sub Divisional Magistrate passed Annexure A preliminary order on the basis of the report of the Village Officer, Vattappara within whose jurisdiction the parties are residing and the coconut in question standing. It is also clear as revealed by Annexutre C order that the officer who passed the order has personally inspected the site and found that there is every possibility for causing danger to the life and property of the petitioner and therefore it cannot be said that Annexure C order is issued absolutely without any basis or without considering materials or evidence. The two authorities came into the same conclusion regarding the dangerous position of the coconut tree in question. As a matter of fact, the petition was filed on CRMC 4475/05 -:7:- 25-5-2004 and thereafter four years is over. Initially, the Sub Divisional Magistrate found that it was a fit case where a preliminary order under section 133 of Cr.P.C. can be passed and subsequently, both the Tahsildar and Executive Magistrate and also the revisional court concurrently found that the coconut in question is standing in a dangerous position and therefore I am not inclined to interfere in exercise of the powers under section 482 of Cr.P.C with the orders passed by the Tahsildar and Executive Magistrate and also the revisional court. In the result, there is no merit in the Crl.M.C., hence, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRMC 4475/05 -:8:- V.K.MOHANAN, J. No.... Judgment/Order Dated: