IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 CRL.M.C. No. 1158 of 2006() --------------------------------------- (PROCEEDINGS NO.G 2041 OF 2006 DATED 27.2.2006 OF THE REVENUE DIVISIOINAL OFFICER, KOLLAM) PETITIONER -PETITIONER: ------------------------------------ SARASWATHY PILLAI, PUTHEN VEEDU, KOYIKKALAZHIKATHU, THOPPIL VEEDU, KOYIKKAL WARD, EAST KALLADA VILLAGE, KOLLAM TALUK. BY ADV. SRI.RAJA VIJAYARAGHAVAN RESPONDENTS - PETITIONER & STATE: ------------------------------------------------------ 1. SARASWATHY AMMA, KOYIKKALAZHIKATHU THOPPIL VEEDU, KOYIKKAL WARD, EAST KALLADA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.A. SALIM R2 SRI.ANCHAL C.VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = CRL. M.C. NO.1158 OF 2006 = = = = = = = = = = = = = Dated this the 14th day of August, 2008 O R D E R --------------- Heard counsel for the petitioner and the second respondent, the first respondent and counsel remaining absent. 2. The point arising for consideration is whether the order impugned is liable to be set aside. Learned counsel for the petitioner submits that it is not clear from the impugned order that under what provision of law it is passed. It is further contended that even if it is assumed to be passed under Section 133(1) of the Code of Criminal Procedure, the Sub Divisional Magistrate could pass only a conditional order, in the facts and circumstances, whereas the order under challenge is of a final nature. 3. Learned Public Prosecutor appearing for the second respondent submits that if at all the contention of the petitioner is accepted, the matter could be sent back to the Sub Divisional Magistrate for reconsideration and passing appropriate orders. CRL. M.C. NO.1158 OF 2006 -: 2 :- 4. The grievance of the first respondent, as revealed from the impugned order is that branches of few trees standing in the property belonging to the petitioner lean to her house. It would appear from the order under challenge that the Sub Divisional Magistrate obtained a report from the Village Officer concerned and passed the impugned order. 5. As pointed out by the learned counsel for the petitioner, the impugned order does not say under what provision of law it has been passed. Assuming that it is passed under Section 133(1) Crl. P.C., sub-section (1)(d) of Section 133 Cr.P.C. could be made use of only if the trees in question are in such a condition that it is likely to fall and thereby cause injury to the persons living or carrying on business in the neighbourhood or passing by. The order under challenge does not say that the trees in question are in such a condition that it is likely to fall. At any rate, even if the provisions of Section 133(1)(d) are to be applied, the Sub Divisional Magistrate should have passed a conditional order to be followed by a final order after enquiry as contemplated under Section 138 Cr.P.C. which has not happened in the case CRL. M.C. NO.1158 OF 2006 -: 3 :- on hand. It is seen that the Sub Divisional Magistrate made use of the report of the Village Officer to pass the impugned order. Such a report could be a material on the basis of which a conditional order could be passed under Section 133(1) Cr.P.C. But that report as such is not evidence under Section 138 Cr.P.C. The report has to be proved in the enquiry contemplated under Section 138 Cr.P.C. Going by the impugned order, that report has not been proved accordingly. It follows that the order under challenge cannot stand and is liable to be set aside. 6. No other point arises for consideration. In the result, this Crl. M.C. is allowed. The order dated 27.2.2006 passed by the Sub Divisional Magistrate, Kollam is hereby set aside. I, however, make it clear that it will be open to the Sub Divisional Magistrate, in case the case falls under Section 133(1)(d) Crl.P.C., to pass a conditional order as provided under law followed by a final order after conducting an enquiry as contemplated under Section 138 Cr.P.C. CRL. M.C. NO.1158 OF 2006 -: 4 :- Criminal Miscellaneous Application No.1826 of 2006 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv