IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No. 202 of 2009() ----------------------------- ORDER IN MC.37/2008 of SUB DIVISIONAL MAGISTRATE, FORT KOCHI .................... REVN. PETITIONER(S): IST PETITIONER ----------------------------------- P.M. THANKAMANI, HOUSE NO. 32/2183 A, KODAMPARAMBIL HOUSE, P.J. ANTONY ROAD, PADIVATTOM, EDAPPALLY.P.O, KOCHI-34. BY ADV. SRI.R.MURALEEDHARAN PILLAI SRI.P.V.LONACHAN RESPONDENT(S): RESPONDENTS AND PETITIONERS 2 AND 3 -------------------------------------------------- 1. SASIDHARAN.T.K, S/O. ITTAMIN, THAREPARAMBIL, P.J. ANTONY ROAD, PADIVATTOM, EDAPPALLY.P.O, KOCHI-24. 2. T.E. RAVINDRAN, S/O. ITTAMIN, THAREPARAMBIL, P.J. ANTONY ROAD, PADIVATTOM, EDAPPALLY.P.O, KOCHI-24. 3. T.K. SOMINI SUKUMARAN, THAREPARAMBIL, P.J. ANTONY ROAD, KOCHI-24. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.202 of 2009 -------------------------------------- Dated this the 25th day of May, 2009. ORDER Order dated 28.10.2008 passed by the Sub Divisional Magistrate, Fort Kochi is under challenge in this revision at the instance of petitioner No.1 before the Sub Divisional Magistrate. 2. Petitioner and two others preferred a complaint to the Sub Divisional Magistrate alleging that a poopparuthi tree standing in the property of respondent No.1 is causing serious danger and nuisance to the petitioner and others, the tree obstructed vehicle movement through the adjoining pathway, may fall over electric line and result in danger to the life and property of petitioner and others. Sub Divisional Magistrate called for a report of the Village Officer. In the meantime petitioner filed W.P.(C) No.19838 of 2008 for expeditious disposal of the petition. Learned Single Judge of this Court as per judgment dated 9.7.2008 directed the Sub Divisional Magistrate to dispose of the petition within two weeks. Sub Divisional Magistrate after considering the report of the Village Officer passed the impugned order making the conditional order absolute and directed respondent No.1 to cut the branches of the tree within ten days. Petitioner is not satisfied in that, there was no direction for removal of the tree as such and challenges that order in this revision. Learned Crl.R.P.No.202/2009 2 counsel submits that as the tree is in dangerous condition likely to fall down at any time, Sub Divisional Magistrate ought to have directed cutting and removal of the tree as such rather than its branches. 3. I am not going into the correctness of the order passed by the Sub Divisional Magistrate as to whether the conditional order could have been made absolute on the materials on record. Presently I am concerned only with the question whether the Sub Divisional Magistrate should have directed cutting and removal of the tree as such. Though petitioner and others alleged that tree as such is standing in a dangerous condition, it is seen from the report of the Village Officer that he has only stated that a branch of the tree is leaning towards the house of petitioner. In the complaint filed before the Sub Divisional Magistrate, petitioner has stated that the branches of the tree are crossing over the electric line and during rainy season such branches may fall over electric line causing danger to the petitioner and others. Though Village Officer stated that either the tree or branches of the tree as such may be cut and removed, he has not stated in what way the tree is in dangerous condition. Sub Divisional Magistrate has also not recorded evidence in the matter. He has merely placed reliance on the report of the Village Officer without complying with the provisions of Section 138 of the Code of Criminal Procedure (for short, “the Code”). The conditional order issued by the Sub Divisional Magistrate under Section 133 of the Code only directs cutting and removal of the branch. That conditional order is not under challenge at the instance of petitioner. Therefore, Sub Divisional Crl.R.P.No.202/2009 3 Magistrate could not have directed cutting and removal of the tree as such on the basis of the conditional order already issued. 4. At this stage, learned counsel for petitioner requests that the right of the petitioner and others to file fresh petition for cutting and removal of the tree may be left open. I make it clear that if circumstances so warranted petitioner or other person having locus standi in the matter would be entitled to do so if they are otherwise entitled to such a course. With the above observation, revision petition is dismissed. THOMAS P.JOSEPH, Judge. cks