Section 138 Cr.P.C.; Narayana Menon Vs. Sundaribhai [Kerala High Court, 29-06-2016]

Criminal P.C. 1973 –  Ss. 133 (1) (d), 138 & 482 – Order passed under – Sustainability of – Sub Divisional Magistrate – Cut and Remove the Trees – The report or information received by the Magistrate before passing the conditional order is no evidence against the party. The conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order, by producing legal evidence. A Magistrate cannot, without calling upon the party to adduce evidence, make the order absolute relying on his own inspection. The procedure adopted by the Magistrate cannot be sustained. This petition is allowed and Order of Sub Divisional Magistrate is set aside.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

RAJA VIJAYARAGHAVAN, V., J.

Crl.M.C. No.6565 of 2015

Dated this the 29th day of June, 2016

CRL.R.P.NO.5/2015 OF ADDITIONAL SESSIONS COURT, MANJERI C.M.P.NO.29/2014 OF SUB DIVISIONAL MAGISTRATE COURT, TIRUR

PETITIONER(S)/REVISION PETITIONER/COUNTER PETITIONER

NARAYANA MENON

BY SRI.T.KRISHNANUNNI (SENIOR ADVOCATE) ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVINDRANATH SRI.SAJU.S.A SMT.MEENA.A. SRI.K.C.KIRAN SRI.M.DEVESH

RESPONDENT(S)/RESPONDENTS/PETITIONER & STATE

1. SUNDARIBHAI. K

2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HON’BLE HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.

R1 BY ADVS. SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

# ORDER

1. Sustainability of an order passed under Section 138 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for brevity) solely on the basis of a consensus order passed in a proceeding under the Legal Services Authorities Act, 1987 is the question raised in this petition filed under Section 482 of the Code.

2. The petitioner herein is residing in a property which lies adjacent to the residential home of the first respondent herein. Certain trees standing in the property of the petitioner is alleged to be in such a condition as to attract the provisions of Section 133(1)(d) of the Code. On the basis of information received by way of a petition filed by the first respondent herein, the Sub Divisional Magistrate called for reports from the Village Officer. On being satisfied that the conditions contemplated under Section 133(1)(d) of the Code exists, the Sub Divisional Magistrate passed a conditional order and issued notice to the petitioner. The petitioner objected by filing Annexure-2. While so, the case was made over to the Tirur Taluk Legal Service Committee and after a discussion, Annexure-3 order was passed by which it was decided that the conditional order of R.D.O., Tirur be implemented only through the concerned Village Officer. Thereafter, on the strength of Annexure-3, Annexure-4 order was passed. The said order reads as follows: “On going through the relevant records and decision taken in the Lok Adalat conducted on 6.12.2014 of Tirur Taluk Legal Service Committee, this Court found that the order under Section 133(1)(d) of the Cr.P.C. issued on 16.7.2014 is reasonable and proper. Hence the same is made absolute and the Village Officer, Vettom is directed to implement the order within ten days of the receipt of this order.”

3. The said matter was taken up in revision and the contentions raised by the petitioner did not find favour with the learned Additional Sessions Judge, Manjeri.

4. I have heard the learned counsel appearing for the petitioner as well as the first respondent.

5. It is submitted by the learned counsel that the learned Magistrate has abdicated his statutory function and has committed a grave error in mechanically adopting the award of the Lok Adalat. It is also submitted that the contention of the petitioner right through was that O.S.No.11 of 2008 was filed by the sisters of the petitioner seeking for partition of the family properties and the suit was decreed as per Annexure-5 judgment dated 31.7.2013. The petitioner was only entitled to 30/260 share of the whole property. According to the learned counsel, the order of the learned Magistrate lacks certainty in so far as there is no specific finding as to the details of the trees that are to be cut and removed. It is pointed out that calling upon the petitioner to cut and remove the trees standing in the properties in which he has no right is illegal. Further, the learned counsel refers to Section 141 of the Code to contend that failure to comply with Annexure-A4 order will lead to proceedings under Section 141(2) of the Code. The report of the Village Officer has not been furnished to the petitioner and he is in the dark as regards the number, location and nature of the trees which are proposed to be cut and removed.

6. The contentions of the petitioner is refuted by the learned counsel appearing for the first respondent. It is submitted that, certain number of trees which stood in the property of the revision petitioner leans towards the house of the first respondent and it is in such a dangerous condition that it is likely to cause damage to her life and property. It is pointed out that the Village Officer had inspected the property and was satisfied about the dangerous situation. The learned Magistrate had also visited the property and apparently was satisfied with the state and condition of the trees. It is also contended that the petitioner is the person who is residing in the said property and referring to Annexure-3, it is pointed out that the petitioner herein had undertaken before the Lok Adalat that the order of the Magistrate could be implemented through the Village Officer. It is finally submitted that the learned Magistrate as well as the Additional Sessions Judge had considered the matters in its varied facets and no interference is warranted.

7. I have considered the rival submissions. I have perused the records as well.

8. Apparently the learned Magistrate was impressed with Annexure-3 order of the Lok Adalat by which the petitioner had agreed to cut and remove the trees provided that the same is implemented through the Village officer. That undertaking sealed the issue according to the learned Magistrate.

9. S.138(1) of the Code enjoins that if the counter petitioner appears in pursuance of the notice of a conditional order passed under S.133, the Magistrate shall take evidence in the matter as in a summons case. If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case and only if the Magistrate is not so satisfied, the order is to be made absolute. The procedure to be followed in a summons case is prescribed in Chapter XX of the Code. Section 251 says that when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted. If the accused admits that he has committed the offence Section 252 enables the Magistrate to convict him. But when he does not make any plea under section 252 or 253 the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. The provision in clause (1) of Section 138 of the Code that the Magistrate shall take evidence is mandatory and that is a condition precedent to the making of the conditional order absolute. The report or information received by the Magistrate before passing the conditional order is no evidence against the party. The conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order, by producing legal evidence. (See

# Ambi V. State of Kerala 1962 (2) CrLJ 426

# Velayudhan V. Kesavan Nair 1968 KLT 889

# Annakody V. State of Kerala and Others 2015 (4) KHC 892

10. In the case on hand, the learned Magistrate was persuaded in no small measure by his personal inspection and the order of the Lok Adalat. The views of the Magistrate is no substitute for the legal evidence that the complainant was required to produce before the learned Magistrate. In other words, the local inspection conducted by the learned Magistrate cannot be the basis to rest his final decision nor can Annexure-3 order of the Lok Adalat.

11. Where a magistrate commences proceedings under Chapter XX, he is not at liberty to proceed otherwise than in conformity with the rules laid down in this part of the chapter. A Magistrate cannot, without calling upon the respondent to adduce evidence, make the order absolute relying on his own inspection. The procedure adopted by the learned Magistrate cannot be sustained. This petition is allowed and Annexure-4 is set aside.

The matter is remitted back for fresh disposal in accordance with law. It is further directed that orders be passed expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this order.

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