IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3099 of 2007()
1. V.K.PRATHAPAN, AGED 45, S/O.KRISHNAN,
... Petitioner
Vs
1. E.M.BIVEIRA, HOUSE NO.18/1647,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SMT.R.RANJINI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :09/10/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3099 of 2007
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Dated this the 9th day of October, 2007
O R D E R
The petitioner is aggrieved by an order passed under Section
138 Cr.P.C. by the Sub Divisional Magistrate. A conditional order
under Section 133 Cr.P.C. was earlier passed. Enquiry under
Chapter XB followed and the Sub Divisional Magistrate finally
directed that two coconut trees standing in the property of the
petitioner must be cut and removed.
2. The petitioner preferred a revision against the said order
and the learned Sessions Judge, by the impugned order, copy of
which is produced as Annex.A9, dismissed the said revision petition.
The petitioner is aggrieved by the concurrent directions issued to him
to cut and remove the two trees in question.
3. I have heard the learned counsel for the petitioner. I must
alertly remind myself of the nature, quality and contours of the
jurisdiction under Section 482 Cr.P.C. The jurisdiction which is
sought to be invoked is the extra ordinary inherent jurisdiction. Such
jurisdiction is not to be invoked as a matter of course. Satisfactory,
compelling and exceptional reasons must be shown to exist to justify
Crl.M.C.No. 3099 of 2007
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the invocation of such jurisdiction. Any and every error committed by the
subordinate courts, even assuming that such errors have been committed,
will not by itself persuade this court to invoke such jurisdiction. Has there
been abuse of process of the court? Has there been failure/miscarriage of
justice? These are the crucial questions to be considered.
4. Having heard the learned counsel for the petitioner at some
length, I find that the crux of the contention is that the finding of fact
entered by the Sub Divisional Magistrate and subsequently confirmed by
the Revisional court that the trees are in such a condition that they pose
danger to the adjacent building in the adjoining property is not correct.
That is the crucial contention raised. This Court cannot under Section 482
Cr.P.C. convert itself to a court considering the challenge at the third tier
against the finding of fact.
5. The learned counsel for the petitioner has laboriously taken me
through Annex.AI report as also Annex.A7 report. The learned counsel
submits that the error committed by the court on facts is resulting in
miscarriage of justice and therefore the powers under Section 482 Cr.P.C.
are liable to be invoked.
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6. I have gone through the order passed by the learned Sessions
Judge in revision as also the order passed by the Sub Divisional Magistrate
under Section 138 Cr.P.C. These orders clearly show that materials were
evaluated and the courts came to the conclusion that the trees in question
did pose danger to the adjacent building occupied by the respondent herein.
In fact Annex.A6 report shows that damage had been caused to the roof of
the building and it is in these circumstances that the opinion was expressed
that the trees cause danger to such building. The order passed in revision
further clearly shows that the Sub Divisional Magistrate had inspected the
property and had prepared a report, against which no objections were
raised. I am, in these circumstances, satisfied that there are absolutely no
features in this case which would justify or warrant the invocation of the
extra ordinary inherent jurisdiction available to this court under Section 482
Cr.P.C.
7. This Crl.M.C. is accordingly dismissed.
(R. BASANT)
Judge
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