IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 Crl.MC.No. 1010 of 2009() ------------------------- CC.1051/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... PETITIONER(S): ACCUSED: ----------------------------------------- A.G.GIREESH KUMAR, AGED 35 YEARS, S/O.GOPINATHAN NAIR, RAGHU MANDIRAM, VIVEKANANDA NAGAR, THEKKEVEEDU WARD, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN, SRI.RAJAN VELLOTH, SRI.SAIJO HASSAN, SRI.SABU SREEDHARAN, SRI.BENOJ C. AUGUSTINE. RESPONDENT(S): STATE: --------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IMPLEADED: R2. KARUNAKARAN, S/O. MALLAN,T.C.NO.50/1130 (1), SHIVAM, MAHADEVA NAGAR, THALIYAL, KALADY WARD, THIRUMALA VILLAGE, TRIVANDRUM DISTRICT. *(ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 5/06/2009 IN CRL.M.A.NO.2092/09) R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, BY ADV. SRI.P.K.MANOJKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1010/2009 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE STAY ORDER DTD. 18/09/2007 IN I.A.NO.819/2007 IN RP.NO.77 OF 2007 OF THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ANNEX.A2: COPYOF THE F.I.R.NO.545/2007 DTD. 25/09/2007 OF THE PEROORKADA POLICE STATION. ANNEX.A3: COPY OF THE FINAL REPORT DTD. 11/12/2007 IN CRIME NO.545/2007. ANNEX.A4: COPY OF THE ORDER DTD. 26/04/2008 OF THE COURT OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1010 of 2009 ==================================== Dated this the 20th day of June, 2011 O R D E R Petitioner is accused in Crime No.545 of 2007 of Peroorkada Police Station and C.C. No.1051 of 2008 of the court of learned Judicial First Class Magistrate-V, Thiruvananthapuram for offences punishable under Sections 353 and 332 of the Indian Penal Code. Case is that C.W.1 obtained an order for cutting and removal of coconut tree which allegedly was standing in a dangerous condition in the property of one Swarna Durai. Pursuant to that order C.W.1 who is an official of the Thiruvananthapuram Corporation along with C.W.2, a Police Constable who was directed to give police protection came to the property of the said Swarna Durai at about 8.30 p.m. At that time Swarna Durai told C.W1 that he has obtained an order of stay against cutting of the tree. Swarna Durai did not produce the order of stay. C.Ws1 and 2 proceeded with their official duty and cut down the coconut tree. At that time petitioner came there, asked who had cut down the tree, caught on the Collar of Uniform of C.W.2 and pushed him down. It is alleged that petitioner committed offences under CRL.M.C. No. 1010 of 2009 -: 2 :- Secs.353 and 332 of the IPC. Learned counsel contended that allegations are false and at any rate no offence either under Sec.332 or 353 of the IPC is involved. It is contended that there was an order of stay against cutting of the coconut tree which was communicated to the Corporation, the employer of C.W.1 even before the day of the incident and in the light of the order of stay, attempt on the part of C.W.1 and party to cut the tree was illegal and hence resistance to such act does not amount to offences under Secs.352 and 332 of the IPC, it is contended. I have heard learned Public Prosecutor also. Learned Public Prosecutor contended that so far as C.Ws1 and 2 are concerned their official duty has been obstructed by the petitioner and that amounted to the offences as alleged. 2. Annexure-A4 is the common order dated 26.04.2008 passed by the Tribunal for Local Self Government. In that proceeding first counter petitioner is the Corporation of Thiruvananthapuram whose official was C.W.1 during the relevant time. In paragraph 17 of Annexure-A4, Tribunal has observed that the order of stay against cutting the tree was received by the Corporation on 24.09.2005. Coconut tree was cut and removed on the next day, ie., 25.09.2005 violating the order of stay. Though CRL.M.C. No. 1010 of 2009 -: 3 :- Corporation attempted to offer some explanation for the same, the explanation was not accepted by the Tribunal. It is held that the explanation offered is not at all acceptable. In paragraph 18 of Annexure-A4, it is observed that the tree was cut and removed on the early morning of 25.09.2007 ignoring the objection of Swarna Durai and his Advocate (petitioner herein) based on the stay obtained from the Tribunal. 3. As per Annexure-A4, there is a clear finding that the order which was sought to be enforced by C.W1 and others on 25.09.2007 was stayed by the Tribunal and the order of stay was communicated to the Corporation on 24.09.2007. If that be so, Corporation could not have enforced the order through C.W.1, its official. The act of C.W.1 was illegal. It cannot be said that C.W.1 at the relevant time was discharging his official duty. 4. So far as C.W.2 is concerned, it is contended that he being a Police Constable was not aware of the order of stay. But it is not as if the order of stay was to be communicated to C.W.2 or his superior. The order of stay was communicated to the Corporation on 24.09.2007. If that be so, C.W.2 was not assisting to enforce the official duty of C.W.1. Viewed in that line the allegation that official duty of C.W.2 also was obstructed by CRL.M.C. No. 1010 of 2009 -: 4 :- petitioner cannot stand. In that view of the matter offences under Secs.353 and 332 of the IPC cannot stand. 5. But the question whether on the materials on record any other offence is involved and could be attributed to the petitioner is a matter which the trial court has to decide. Criminal Miscellaneous Case is allowed. Annexure-A3, final report in Crime No.545 of 2007 of Peroorkada Police Station to the extent it concerned offences under Secs.353 and 332 of the IPC are quashed. But I make it clear that this order will not stand in the way of learned Magistrate looking into the final report and ascertaining whether any other offence is made out against petitioner and proceeding accordingly. THOMAS P. JOSEPH, JUDGE. vsv