IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.MC.No. 3494 of 2008() ------------------------- C1.286/2008 OF THE SUB DIVISIONAL MAGISTRATE, ADOOR .................... PETITIONER: ACCUSED: -------------------- RAMACHANDRAN NAIR, AGED 73 YEARS, PALLATH VEEDU, EDAYARANMULA, PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENTS: STATE: ------------------- 1. P.S.SIVAN, PADINJARE UMMAZHAKKATH, EDAYARANMULA, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3494 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2008 O R D E R Against the petitioner, a conditional order under Section 133 Cr.P.C. was passed by the Sub Divisional Magistrate, Adoor on 20.5.2008. The petitioner was directed to cut and remove one jack tree and two coconut trees in his property, which are allegedly leaning over the residential house of his neighbour, or to appear and show cause. The petitioner had appeared before the Sub Divisional Magistrate. He had raised his objections. No enquiry has been conducted so far. No final order has been passed under Section 138 making absolute the earlier conditional order. But the petitioner apprehends that the trees standing in his property may be cut on the strength of Annex.A3 order passed by the Sub Divisional Magistrate. 2. Notice was given to the learned Prosecutor, who submits that there is no merit in the apprehension of the Crl.M.C.No. 3494 of 2008 2 petitioner. A proper enquiry under Section 138 Cr.P.C. shall be conducted. Thereafter an appropriate order shall be passed and only thereafter, if necessary, shall the trees be cut, if the petitioner does not comply with the direction to so cut the trees, if issued, submits the learned Prosecutor. 3. The learned counsel for the petitioner submits that no proper enquiry under Section 138 Cr.P.C. has at all been conducted. Even when the matter stood posted to 17.9.2008 and the petitioner appeared before the Sub Divisional Magistrate, he was only informed that he need appear only after he received summons again from the Sub Divisional Magistrate. In these circumstances he apprehends that his adversaries, who are very influential politically, may prevail upon the Sub Divisional Magistrate and get the trees cut and removed even before an order under Section 138 Cr.P.C. is passed and even before he gets an opportunity to challenge such order, if any passed. 4. In the peculiar facts and circumstances of this case, I am satisfied that appropriate directions can be issued to allay the apprehension of the petitioner. Crl.M.C.No. 3494 of 2008 3 5. In the result: a) This Crl.M.C. is allowed in part. b) It is directed that the petitioner shall appear before the Sub Divisional Magistrate on 29.9.2008 along with a copy of this order. c) The Sub Divisional Magistrate shall continue with the proceedings in accordance with law and pass appropriate final orders under Section 138 Cr.P.C. d) Such order, if adverse to the petitioner, shall not be executed till elapse of a period of ten days from the date on which a copy of the order is served on the petitioner or his counsel. (R. BASANT) Judge tm