IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 717 of 2009() ----------------------------- AGAINST ORDER IN MC NO.104 OF 2008 OF TAHSILDAR & EXECUTIVE MAGISTRATE, NEDUMANGAD. REVN. PETITIONER(S)/COUNTER PETITIONER: --------------------- SAMUEL NADAR, S/O. SASAYA NADAR, AGED 67 YEARS, KALAYAM OUNDAPPARA, PERUMKULAM VILLAGE, NEDUMANGAD. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S)/PETITIONERS: --------------- 1. ISHABEEVI, SHERIFA MANZIL, UNDAPPARA, PERUMKULAM VILLAGE, NEDUMANGAD. (*) 2. SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM. (DELETED) (*) 3. TAHSILDAR,& EXECUTIVE MAGISTRATE, NEDUMANGAD.(DELETED) 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTO, HIGH COURT OF KERALA, ERNAKULAM. (*)RESPONDENT NOS.2 AND 3 DELETED FROM ARRAY OF PARTIES VIDE ORDER IN CRL.R.P.NO.717/2009 DATED 8.6.2009) PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR4 SRI. K.SIJU FOR R1 SRI.PRATHEESH.P FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.717 of 2009 -------------------------------------- Dated this the 8th day of June, 2009. ORDER Heard counsel for petitioner, respondent No.1 and the Public Prosecutor who took notice for respondent No.4. Respondent Nos.2 and 3 are deleted from array of parties as requested by counsel for petitioner. The order under challenge is that of the Tahsildar and Executive Magistrate, Nedumangad purportedly issued under Section 138 of the Code of Criminal Procedure (for short, “the Code”) but, stated in the order as issued under Section 136 of the Code making the conditional order under Section 133 of the Code absolute. Respondent No.1 preferred a complaint to the Sub Divisional Magistrate. Her complaint is that a coconut tree standing in the property of the petitioner is dangerously leaning towards her house, it is likely to fall down and endanger human life. Sub Divisional Magistrate obtained report of the Village Officer and issued a conditional order under Section 133 of the Code. Pursuant to that conditional order petitioner filed objection. Complaint was made over to the Tahsildar and Executive Magistrate for consideration. The Tahsildar and Executive Magistrate as per the impugned order made the conditional order absolute relying on the report of Village Officer. It is contended by learned counsel that objection preferred by the petitioner was not taken into account and no evidence was recorded as required under Section 138 of the Code. Learned counsel submitted that sufficient precaution had been taken by the Crl.R.P.No.717/2009 2 petitioner by tying wire on the coconut tree involved. Counsel for respondent No.1 would say that such precaution was not sufficient as reported by the Village Officer. 2. I am now not going into the controversy as to whether the tree in question is standing in a dangerous position and if so, liable to be removed. It is seen from the order under challenge that the Tahsildar and Executive Magistrate has not conducted an enquiry as provided under Section 138 of the Code. The Tahsildar and Executive Magistrate was obliged to take evidence in the matter as in a summons case. The report of the Village Officer by itself cannot be taken as evidence as understood under Section 138 of the Code. The proper course would be to examine the Village Officer concerned and prove the report with opportunity to the parties affected to cross examine him. Since that procedure has not been complied, the order under challenge cannot be sustained. It is liable to be set aside and the matter is to be remitted to the Tahsildar and Executive Magistrate for disposal in accordance with the provisions under Section 138 of the Code. 3. Learned counsel for respondent No.1 submitted that direction may be given to the Tahsildar and Executive Magistrate to expedite the enquiry since according to the learned counsel as the tree is likely to fall down at any point of time and endanger human life. Considering the facts and circumstances of the case, I direct the Tahsildar and Executive Magistrate to expedite the enquiry and dispose of the matter as early as possible. Crl.R.P.No.717/2009 3 Resultantly, this revision petition is allowed in the following lines: Order under challenge is set aside and the matter is remitted to the Tahsildar and Executive Magistrate, Nedumangad for disposal in the light of the observations made above and in compliance with the provisions of Section 138 of the Code. Crl.M.A.No.2126 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks