IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4475 of 2005()
1. ANTONY,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. ENOSE,
For Petitioner :SRI.M.SREEKUMAR
For Respondent :SRI.S.GOPAKUMARAN NAIR (SR.)
The Hon'ble MR. Justice V.K.MOHANAN
Dated :05/06/2008
O R D E R
V.K.MOHANAN, J.
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CRL.M.C. No.4475 of 2005
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Dated, 5th June, 2008.
ORDER
The petitioner herein is the counter petitioner in
M.C.No.148/2004 on the file of the Tahsildar and Executive
Magistrate, Nedumangad. By Annexure C order, in exercise of
the powers vested in the Executive Magistrate under Section 133
of Cr.P.C., the petitioner herein was directed to cut and remove
the coconut tree within 7 days from the date of receipt of the
order. Aggrieved by the above order, the petitioner filed
Crl.R.P.No.15/2005 before the Sessions Court,
Thiruvananthapuram and the Sessions Court dismissed the
same by its order dated 20-7-2005. Challenging the above
orders of the courts below, this petition is preferred under
section 482 of the Cr.P.C. It is the case of the petitioner that
though the petitioner herein had appeared before the Executive
Magistrate and filed Annexure B objection, the same was not
considered and no opportunity was given to substantiate his
contention and therefore, the order passed by the Tahsildar and
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the Executive Magistrate, Nedumangad is absolutely illegal and
baseless. So according to the petitioner, the Sessions Court has
also failed to consider the grievance of the petitioner.
Therefore, the order passed by the revisional court as well as
the Executive Magistrate are liable to be set aside.
2. I have heard the counsel for the petitioner as well as
the counsel for the 2nd respondent and also the learned Public
Prosecutor.
3. The 2nd respondent herein preferred a petition dated
21-6-2004 complaining that a coconut tree owned by the
petitioner herein is standing in a dangerous position by the
side of the complainant’s house causing danger to the life and
property of the petitioner. The Sub Divisional Magistrate as per
Annexure A order directed the petitioner under section 133 of
Cr.P.C. to cut and remove the said tree within 7 days from the
date of receipt of the order or to appear before the Tahsildar
and Executive Magistrate Nedumangad on 25-8-2004 at 11
a.m. and show cause why the preliminary order should not be
made absolute. The petitioner submits that, accordingly, he
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had preferred Annexure B objection. Annexure B is dated 27-
12-2004. Finally, by order dated 3-1-2005 in M.C.148/2004,
the Tahsildar and Executive Magistrate in exercise of his
powers under sections 136 and 138 of Cr.P.C. directed the
petitioner herein to cut and remove the coconut tree in
question within 7 days from the date or receipt of the order.
Though the above order challenged in revision, the Sessions
Court as per Annexure C order dismissed the revision. It is the
above orders of the courts below are challenged in this
petition.
4. The learned counsel appearing for the petitioner
submitted that though the petitioner had preferred objection,
the same was not considered by the Tahsildar and Executive
Magistrate and also no opportunity was given to adduce
evidence. According to the counsel, as per section 138 of
Cr.P.C., an opportunity shall be given to adduce evidence as
in the case of a summons case.
5. Per contra, the counsel for the 2nd respondent
submitted that the petitioner herein has miserably failed to
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make any written objection on 25-8-2004 as directed in
Annexure A preliminary order and there is no material to show
that the petitioner herein had adopted any step to defend the
case effectively and for adducing evidence to substantiate his
contention and averments if any.
6. I have gone through the available materials and also
considered the contentions raised by both the counsel for the
petitioner as well as the 2nd respondent. It is borne out from
the records that the 2nd respondent preferred the petition dated
21-6-2004 and thereafter the matter is pending before various
forums even though the matter has been finally decided by the
Executive Magistrate as well as the revisional court. The
grievance of the petitioner is that he was not given
opportunity to adduce evidence to substantiate his grievance.
From Annexure A order, it is clear that he was directed to
appear before the Tahsildar and Executive Magistrate on 25-8-
2004 and to show cause why the preliminary order should not
be made absolute. From Annexure C order order it appears
that the petitioner had appeared before the Tahsildar and
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Executive Magistrate on 25-8-2004, but no written objection is
seen to have been filed on appearance and no request is
made for adducing further evidence before the authority
concerned. It is also seen from Annexure D order of the
revisional court that the petitioner herein was not interested
to defend the case effectively and he was absent while the
above revision petition was disposed of. However, it is also
disclosed from the records that before issuing Annexure A
order, the Sub Divisional Magistrate had called for the report of
the village Officer, Vattappara and he had furnished a report
No.487/04 and the Sub Divisional Magistrate issued Annexure A
order after considering the above report. It is also pertinent to
note that before passing Annexure C final order, the Tahsildar
and Executive Magistrate had physically inspected the site
and found and he personally satisfied that there is every
possibility for causing danger to the life and property of the
petitioner therein who is the 2nd respondent herein. It appears
that after the inspection done by the Tahsildar, he had issued
notice to both parties to appear before him on 27-12-2004
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and it was on this day the petitioner herein filed Anneuxre B
objection. Though the petitioner was directed to appear and
furnish the show cause on 25-8-2004, he had not chosen to
file any written objection or sought time to file objection and
to adduce evidence. So it seems that the petitioner is least
interested in defending his case before the concerned
authority. It is also borne out from the records that the Sub
Divisional Magistrate passed Annexure A preliminary order on
the basis of the report of the Village Officer, Vattappara within
whose jurisdiction the parties are residing and the coconut in
question standing. It is also clear as revealed by Annexutre C
order that the officer who passed the order has personally
inspected the site and found that there is every possibility for
causing danger to the life and property of the petitioner and
therefore it cannot be said that Annexure C order is issued
absolutely without any basis or without considering materials
or evidence. The two authorities came into the same
conclusion regarding the dangerous position of the coconut
tree in question. As a matter of fact, the petition was filed on
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25-5-2004 and thereafter four years is over. Initially, the Sub
Divisional Magistrate found that it was a fit case where a
preliminary order under section 133 of Cr.P.C. can be passed
and subsequently, both the Tahsildar and Executive Magistrate
and also the revisional court concurrently found that the
coconut in question is standing in a dangerous position and
therefore I am not inclined to interfere in exercise of the
powers under section 482 of Cr.P.C with the orders passed by
the Tahsildar and Executive Magistrate and also the revisional
court.
In the result, there is no merit in the Crl.M.C., hence, the
same is dismissed.
V.K.MOHANAN,
JUDGE
kvm/-
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V.K.MOHANAN, J.
No….
Judgment/Order
Dated: