IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Crl.MC.No. 3052 of 2011() ------------------------- AGAINST THE ORDER DATED 18/08/2011 IN CRRP.1/2011 OF DISTRICT AND SESSIONS COURT, ALAPPUZHA IN MC.82/2010 of REVENUE DIVISIONAL OFFICER, ALAPPUZHA .................... PETITIONER(S): PETITIONERS/COUNTER PETITIONERS: ----------------------------------------------------------------------------------- 1. SMT.SMITHA, AGED 35 YEARS, D/O. PUZHAPANGADHAN, CHENNAMPARAMBIL, SOUTH ARYADU, ALAPPUZHA. 2. C.N. PUSHPANGADHAN, AGED 60 YEARS, CHENNAMPARAMBIL, SOUTH ARYADU,ALAPPUZHA. BY ADVS. SRI.GEORGE MATHEW, SRI.DIPU JAMES SRI.K.P.UNNIKRISHNAN (ELOOR), SRI.BIJILY JOSEPH. RESPONDENT(S): RESPONDENTS/PETITIONER & STATE: ------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY REVENUE DIVISIONAL OFFICER, ALAPPUZHA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.C. SHASIDHARAN, CHIRAYIL, SOUTH ARYADU, KOMALAPURAM VILLAGE, ALAPPUZHA- 688 542. R1 BY PUBLIC PROSECUTOR SMT. R.REMA R2 BY ADV. SRI.MILLU DANDAPANI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.3052/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF ORDER NO.MC.82 OF 2010 DTD. 27/12/2010 OF THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA. ANNEX.A2: COPY OF ORDER DTD. 18/08/2011 IN CRL.REVISION PETITION NO.1/2011 OF THE DISTRICT AND SESSIONS COURT, ALAPPUZHA. RESPONDENTS' ANNEXURE: ANNEX.R2(A): COPY OF THE CONDITIONAL ORDER DTD. 1/11/2010 OF SUB DIVISIONAL MAGISTRATE, ALAPPUZHA. /TRUE COPY/ P.A.TO JUDGE Kss N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C. No. 3052 of 2011 ------------------------------------------ Dated this the 24th day of October, 2011. O R D E R The counter petitioners in MC 82/2010 of Sub Divisional Magistrate, Alappuzha are the petitioners herein. Proceedings under Section 133 of Cr.P.C. was initiated pursuant to the petition filed by the second respondent in this case. It is alleged that a coconut tree is slanting dangerously towards the house of the second respondent and unless it is cut and removed it may fall on the house causing harm to the life of the inmates of the house. It is submitted by the learned counsel for the second respondent that pursuant to the complaint, a report was obtained from the Village Officer who inspected the property and reported that unless the tree is properly tied by steel wire it may pose danger to human life. Subsequently a notice was issued to the petitioners herein. The learned Sub Divisional Magistrate being satisfied of the danger likely to be caused to the inmates of the house, ordered to cut and remove the tree. The learned counsel Crl.M.C. No. 3052 of 2011 2 for the petitioners submit that pursuant to the earlier order passed by the Sub Divisional Magistrate the tree was tied with a steel rope to another tree. But the report shows that the steel wire is not strong enough to avoid falling of the tree. The order passed by the Revenue Divisional Officer dated 27/12/2010 shows that a report was obtained from the Junior Superintendent of that office which is to the effect that even though the coconut tree is tied with an wire, there is threat to the life and property of the petitioners. Based on that report the impugned A1 order was passed by the learned Sub Divisional Magistrate. 2. A revision petition was filed by the petitioners before the learned Session Judge, Alappuzha as Criminal Revision Petition No. 1 of 2011. After hearing, that petition was dismissed by the learned Sessions Judge. The learned counsel for the respondents submits that it was after consideration of the materials available, the learned Session Judge has confirmed the order and so this court should not interfere invoking the jurisdiction under Section 482 Cr.P.C. This argument has been resisted by the learned Crl.M.C. No. 3052 of 2011 3 counsel for the petitioners pointing out that the procedure prescribed under Section 138 of the Code was not followed by the Sub Divisional Magistrate before passing Annexure – A1 order. It is also pointed out that the report obtained from the Junior Superintendent is not seen in the file produced from the office of the SDM. It is also submitted that no evidence was recorded by the learned Magistrate before passing Annexure –A1 order. Since the said report is not seen in the file produced and no other evidence was also obtained or recorded, this criminal M.C. is disposed of in the following lines:- 1) The impugned order is set aside. 2) The parties will appear before the learned Sub Divisional Magistrate on 15/11/2011. The learned Magistrate will direct local inspection to be made by such officer as he thinks fit and obtain a report regarding the same. Such report may have to be read as evidence in this case as mentioned in Section 140 (2) of the Code. After getting such a report and after examining the parties if required, the learned Sub Divisional Crl.M.C. No. 3052 of 2011 4 Magistrate will pass appropriate orders. The order shall be passed within 2 months from 15/11/11. N.K. BALAKRISHNAN, JUDGE smvd