Abraham Markose vs State Of Kerala
2022 Latest Caselaw 50 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE K.HARIPAL
        MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                       OP(CRL.) NO. 216 OF 2021
PROCEEDINGS NO. K-1450/2021 DATED 28.05.2021 OF THE SUB DIVISIONAL
 MAGISTRATE AND SUB COLLECTOR, KOTTAYAM UNDER SECTION 133 OF THE
                               CR.P.C.
PETITIONER/ACCUSED:

            ABRAHAM MARKOS
            ADVOCATE,
            SON OF LATE V.O. MARKOS,
            VATHAKAT 1ST BUNGALOW,
            ERAYILKADAVU,
            KOTTAYAM 686 001,
            PRESENTLY RESIDING AT 6A,
            SI NORTH RIDGE,
            K.K PADMANABHAN ROAD,
            KOCHI 682 018.

            BY ADVS.ISAAC THOMAS
                    P.G.CHANDAPILLAI ABRAHAM
                    SHARAD JOSEPH KODANTHARA


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT BUILDING
            KOCHI 682 031.

    2       THE SUB DIVISIONAL MAGISTRATE AND SUB- COLLECTOR,
            COLLECTORATE,
            KOTTAYAM 686 002.

    3       THE VILLAGE OFFICER,
            MUTTAMBALAM VILLAGE,
            COLLECTORATE P.O.
            KOTTAYAM 686 02.

    4       MR. ANIL CHANDY,
            (SELF-STYLED BISHOP AND/OR REVEREND )
            RESIDING AT KARAKKATTU HOUSE,
            ERAYILKADAVU,
            KOTTAYAM,
            KOTTAYAM 686 002.
 O.P.(Crl.).No.216 OF 2021        2


            R1 BY SRI. NOUSHAD, SENIOR PUBLIC PROSECUTOR
            R4 BY ADV K.K.RAJEEV


     THIS   OP   (CRIMINAL)   HAVING   COME   UP   FOR   ADMISSION   ON
03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(Crl.).No.216 OF 2021            3




                              JUDGMENT

Petitioner is the counter petitioner in a proceeding initiated by

the second respondent under Section 133 of the Code of Criminal

Procedure on the basis of certain complaint moved by the fourth

respondent alleging that a tree standing in the property of the

petitioner is causing danger and hazards to the life and property of

the fourth respondent.

2. Pursuant to the same, Ext.P4 order was passed under

Section 133 of the Code of Criminal Procedure directing him to cut

and remove branches of a Mahagony tree standing in the property

of the petitioner. He was also given 15 days time to state as to why

such an order shall not be made absolute. Aggrieved by the same,

the petitioner has moved this Court under Article 227 of the

Constitution.

3. I heard the learned counsel for the petitioner, the

learned counsel for the fourth respondent and the learned Public

Prosecutor.

4. According to the learned counsel for the petitioner,

earlier at the instance of the fourth respondent, the Secretary,

Kottayam Municipality had initiated some action and called for a

report from the third respondent. Basing on the report of the third

respondent, the Municipal Secretary had directed to cut and remove

branches of the tree which was challenged before this Court in W.P.

(C.) No. 13424/2021. By judgment dated 10.11.2021, this Court

had allowed the writ petition and quashed the proceedings of the

Secretary of the Municipality and directed to reconsider the appeal

with notice to the petitioner. Meanwhile, proceeding has been

initiated under Section 133 of the Cr.P.C.

5. According to the learned counsel for the petitioner, the

petitioner who is a lawyer having long practice in this Court is

being troubled with parallel proceedings through the municipality

and also through revenue department. Whatever it may be, Ext.P4

order, on the face of it is a provisional order only, issued under

Section 133 of the Cr.P.C., which gives him ample opportunity to

raise all his contentions before the Sub Divisional Magistrate. By

Ext.P4, it cannot be thought that the Sub Divisional Magistrate has

formed any opinion.

6. It is open to the petitioner to raise all his contentions

before the Sub Divisional Magistrate within a period of fifteen days

from today. It goes without saying that till the matter is heard and

decided, the Sub Divisional Magistrate shall not proceed to do

anything causing prejudice to the petitioner.

The original petition is disposed of as above.

SD/-

K.HARIPAL

JUDGE

DCS/03.01.2022

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE NOTICE NO. H4.21049/2020 DATED 04.02.2021 ISSUED BY KOTTAYAM MUNICIPALITY.

EXHIBIT P2 TRUE COPY OF THE APPEAL DATED 21.5.2021 FORWARDED UNDER COVER OF LETTER DATED 21.05.2021.

EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR STAY OF EXHIBIT P1 MOVED UNDER SECTION 503 OF THE KERALA MUNICIPAL ACT ALONG WITH THE APPEAL ON 21.05.2021.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 28.5.2021 ISSUED BY THE 2ND RESPONDENT RECEIVED BY THE PETITIONER ON 16.06.2021.

EXHIBIT P5 TRUE COPY OF THE REPLY RECEIVED FROM THE 3RD RESPONDENT VILLAGE OFFICER UNDER COVER OF LETTER DATED 17.06.2021 ENCLOSING THEREWITH COPY OF REPROT O. 175/20-21 DATED 26.05.2021.