IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.MC.No. 303 of 2011() -------------------------------- CRRP.27/2010 of ADDL. SESSIONS COURT, ALAPPUZHA MC.57/2009 of SUB DIVISIONAL MAGISTRATE COURT, ALAPPUZHA .................... PETITIONER(S): REVISION PETITIONER/COUNTER PETITIONER ------------------------------------------------------------------------------------------- M.M.LAKSHMIKUTTY AMMA, MAZHUVANCHERI VARIAM, KUMARANKERI P.O., (VIA) CHANGANACHERRY, ALAPPUZHA DISTRICT. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENT/STATE & PETITIONER -------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.KESAVA PANICKER, CHAITHRAM, KUMARANKERI P.O., (VIA) CHANGANACHERRY, ALAPPUZHA DISTRICT- 686 103. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR R2 BY ADV. SRI.MATHEW JAMES THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.303 of 2011 -------------------------------------- Dated this the 4th day of March, 2011. ORDER Respondent in M.C.No.57 of 2009 of the court of Sub Divisional Magistrate, Alappuzha is aggrieved by Annexure-I, order dated 09.06.2010 making the conditional order under Section 133 of the Code of Criminal Procedure (for short, “the Code”) absolute under Section 138 of the said Code and order dated 21.01.2011 passed by the learned Additional Sessions Judge, Alappuzha in Crl.R.P.No.27 of 2010 confirming that order. Respondent No.2 filed a petition before the Sub Divisional Magistrate obviously under Section 133 (1)(d) of the Code alleging that a coconut tree standing in the property of petitioner is standing in such a dangerous condition that it is likely to fall down and endanger human life. The Sub Divisional Magistrate on the materials on record issued a conditional order and issued notice to the petitioner to show cause why the conditional order shall not be made absolute. Pursuant to that order petitioner filed objection contending that his property does not share any boundary with the property of respondent No.2 and denying the allegations in the petition. The Sub Divisional Magistrate conducted a local inspection on 18.05.2010 and being satisfied that the coconut tree is standing in a dangerous condition as alleged by respondent No.2 passed Annexure-I, order making the conditional order absolute. Learned counsel for petitioner contends that Crl.MC No.303/2011 2 Annexure-I, order is passed without compliance of the requirements of Section 138 of the Code which learned Additional Sessions Judge also failed to take note. It is prayed that Annexure-I, order as confirmed by the learned Additional Sessions Judge may be set aside. Reliance is placed on the decision in Sujatha v. Prema (2005 (3) KLT 458). Learned counsel for respondent No.2 has contended that petitioner did not adduce any evidence as to why the conditional order should not be made absolute and that the Sub Divisional Magistrate was satisfied about condition of the coconut tree through local inspection and the report he obtained from the Village Officer. I have heard learned Public Prosecutor also. 2. No doubt, when situations as stated in Section 133(1)(d) of the Code arise it is within the power of the Sub Divisional Magistrate on receiving report of the Police Officer or other information and on taking such evidence if any as he thinks fit to issue a conditional order. Accordingly a conditional order was issued in this case. It is not disputed that petitioner has shown cause against making the conditional order absolute. In that situation the Sub Divisional Magistrate was required to comply with the requirements under Section 138 of the Code. Sub-section (1) of the said provision says that when a person against whom a conditional order is issued appears and shows cause against the order, the Sub Divisional Magistrate shall take evidence in the matter as in a summons case. Passing of conditional order arises when the Crl.MC No.303/2011 3 Sub Divisional Magistrate satisfies from such evidence that the order either as originally made or subject to such modification as he considers necessary is reasonable and proper. That is the view taken by this Court in Sujatha v. Prema (supra). In that decision it is held that the Sub Divisional Magistrate is bound to follow the procedure provided under Section 254 of the Code (in the matter of taking evidence as stated in Section 138 (1) of the Code. Report if any obtained through the Village Officer is not by itself evidence and would be treated as evidence only when the Village Officer is examined and the report is marked in evidence. 3. The mere fact that the Sub Divisional Magistrate has conducted a local inspection by itself is not sufficient. For, though Section 310 of the Code empowers a local inspection such local inspection is only for the purpose of appreciating evidence given at such enquiry or trial and cannot form on the basis of an order under Section 138 of the Code. 4. It is seen that the Sub Divisional Magistrate while passing Annexure-1 has not complied with the mandatory and statutory provisions. As such the order cannot stand and liable to be set aside. 5. Learned counsel for respondent No.2 raised the apprehension that the tree may fall down at any time. Certainly that is a matter which the Sub Divisional Magistrate has to bear in mind to expedite the proceeding. Resultantly this petition is allowed. Annexure-1, order dated 09.06.2010 of the Sub Divisional Magistrate, Alappuzha in M.C.No.57 of 2009 as confirmed Crl.MC No.303/2011 4 by the learned Additional Sessions Judge, Alappuzha in Crl.R.P.No.27 of 2010 is set aside. M.C.No.57 of 2009 is remitted to the Sub Divisional Magistrate for fresh disposal after compliance with the mandatory requirements of Section 138 of the Code. The Sub Divisional Magistrate is directed to expedite the proceeding and pass appropriate orders after compliance with the statutory provisions as early as possible. THOMAS P.JOSEPH, Judge. cks