Kerala High Court
Shamsudheen vs State Of Kerala on 16 October, 2023
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
CRL.MC NO. 3410 OF 2023
MC 1(A)/2019 OF SUB DIVISIONAL MAGISTRATE,KOZHIKODE
PETITIONERS/PETITIONERS:
1 SHAMSUDHEEN,
AGED 52 YEARS
S/O. P.V. MOIDEENKOYA SEKKEENA MANZIL,
VAIDYARANGADI PO, RAMANATTUKARA, KOZHIKODE
DISTRICT, PIN - 67363
2 AAYISHABI UMMA
AGED 65 YEARS
W/O. P.V. MOIDEENKOYA SEKKEENA MANZIL,
VAIDYARANGADI PO, RAMANATTUKARA, KOZHIKODE
DISTRICT, PIN - 673633
3 FAIZAL
AGED 43 YEARS
S/O. P.V. MOIDEENKOYA SEKKEENA MANZIL,
VAIDYARANGADI PO, RAMANATTUKARA, KOZHIKODE
DISTRICT -, PIN - 673633
4 SEKKEENA P.V.
AGED 50 YEARS
D/O. P.V. MOIDEENKOYA, MULLASSERY HOUSE,
CHENAKKAL CHELARI P.O., THIROORANGADI,
MALAPPURAM DISTRICT -, PIN - 673635
5 P.V. ASMABI,
AGED 47 YEARS
D/O. P.V. MOIDEENKOYA, KOKKUYIL HOUSE,
PULLUMKUNNU, VAIDYARANGADI P.O.,
KOZHIKODE DISTRICT -, PIN - 673633
BY ADVS.
K.MOHANAKANNAN
H.PRAVEEN (KOTTARAKARA)
CrlM.C..No.3410/2023
2
RESPONDENT/STATE & RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HON'BLE HIGH COURT OF KERALA,
ERNAKULAM -, PIN - 682031
2 EXECUTIVE MAGISTRATE AND TAHSILDAR,
ERANHIPPALAM, KOZHIKODE -, PIN - 673020
3 HARIDASAN
D/O. IMPICHI KORU, PATTAYIL KEERANGATTU HOUSE,
VAIDYARANGADI PO, RAMANATTUKARA,
KOZHIKODE -, PIN - 673020
BY ADVS.
R.SUDHISH
M.MANJU(K/003562/1999)
OTHER PRESENT:
MP PRASANTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
CrlM.C..No.3410/2023
3
'CR'
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.3410 of 2023
----------------------------------------------
Dated this the 16th day of October, 2023
ORDER
This Criminal Miscellaneous Case is filed with following
prayers:
i) To call for the records leading to Annexure.A7 and
quash the same;
ii) To direct the 2nd respondent to restore and finalize
the proceedings in MC No. 1(A)/2019 within a time
frame to be fixed by this Hon'ble Court after
hearing the parties.
(SIC)
2. Annexure-A7 is an order passed by the Executive
Magistrate and Tahsildar, Kozhikode. The petitioners are
supplemental petitioners before the Executive Magistrate and
Tahsildar in a proceeding initiated under Section 133 of the
Code of Criminal Procedure (for short, the Code) as MC
No.1(A)/2019. The petitioners are the legal heirs of one late P.V.
Moideenkoya, who was the petitioner before the Executive
CrlM.C..No.3410/2023
Magistrate in MC No.1(A)/2019. The petition was filed because
of the dangerous standing of two trees causing danger to the
original petitioners' house. The proceedings was commenced in
the year 2016 and was continued based on the directions of this
Court in Annexure-A1 judgment. The 2nd respondent conducted
a site inspection on 24/10/2019 and found that one jack fruit
tree, two mango trees and one teak tree are standing in the
property of the 3rd respondent herein and it is causing danger to
the house of the petitioners and it may fall at any time. Even
though direction was issued to remove the branches, only one of
the trees was removed and therefore, Annexure-A2 final order
was passed. Annexure-A2 order was challenged by the 3 rd
respondent by filing a revision petition before the Sessions Court
and the Sessions Court dismissed the revision petition as per
Annexure-A3, confirming the order. The 3 rd respondent
challenged the correctness of Annexure-A3 order before this
Court by filing Crl.M.C. No.240/2021. During the pendency of
the above Crl.M.C., the original petitioner, P.V. Moideenkoya
passed away. Legal heirs were impleaded as respondents 3 to 7
before this Court. This Court, as per Annexure-A4 order, set
aside the impugned orders in that case, stating that the
CrlM.C..No.3410/2023
impugned orders were passed without following the legal
procedures contemplated under Section 138 of the Code.
3. After Annexure-A4 order, the petitioners appeared
before the 2nd respondent and were impleaded in the
proceedings before the 2nd respondent. It is the case of the
petitioners that on all postings, the petitioners and their counsel
were present before the 2nd respondent. Subsequently, as per
Annexure-A7, the Executive Magistrate closed the case invoking
the powers under Section 256(1) of the Code. Aggrieved by
Annexure-A7, this criminal miscellaneous case is filed.
4. Heard the learned counsel for the petitioners and the
learned counsel appearing for the 3 rd respondent. I also heard
the learned Public Prosecutor appearing for respondents 1 and
2.
5. The short point to be decided in this case is whether
the Executive Magistrate and Tahsildar is empowered to invoke
Section 256(1) of the Code. This Court, in Annexure-A4 order,
only observed that the Executive Magistrate/Tahsildar shall pass
fresh orders on the application submitted, after complying with
the legal procedure contemplated under Section 138(1) of the
Code, by taking the evidence of the matter as in the case of a
CrlM.C..No.3410/2023
summons case. It is true that under Section 138(1) of the Code,
it is mandatory for the learned Executive Magistrate to take
evidence as in the case of a summons case. That does not mean
that the Sub-divisional Magistrate has got all the powers of a
Judicial Magistrate, as per Chapter XX of the Code. Now the
Sub-divisional Magistrate, invoking Section 256 of the Code,
closed the matter. It will be better to extract Section 256 of the
Code:
"Section 256. Non-appearance or death of
complainant
(1) If the summons has been issued on
complaint and on the day appointed for the
appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the
complainant does not appear, the Magistrate shall
notwithstanding anything hereinbefore contained,
acquit the accused unless for some reason he thinks
it proper to adjourn the hearing of the case to some
other day:
PROVIDED that where the complainant is
represented by a pleader or by the officer conducting
the prosecution or where the Magistrate is of opinion
that the personal attendance of the complainant is
not necessary, the Magistrate may dispense with his
attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so
CrlM.C..No.3410/2023
far as may be, apply also to cases where the non-
appearance of the complainant is due to his death."
6. Section 256 of the Code says that, if the summons has
been issued on 'complaint', and on the day appointed for the
appearance of the 'accused', or any day subsequent thereto to
which the hearing may be adjourned, the complainant does not
appear, the Magistrate shall, notwithstanding anything herein
before contained, acquit the accused, unless for some reason he
thinks it proper to adjourn the hearing of the case to some other
day. Sub-section (2) of Section 256 says that the provisions of
sub-section (1) shall, so far as may be, apply also to cases where
the non-appearance of the complainant is due to his death.
Therefore Section 256 is applicable only if the summons has
been issued on a complaint and on the day appointed for the
appearance of the accused, the complainant does not appear,
the Magistrate can acquit the accused. The counter petitioners
before an Executive Magistrate are not accused persons.
Moreover, a petition filed before the Executive Magistrate is not
a complaint as defined under Section 2(d) of the Code. Section
2(d) of the Code is extracted hereunder:
CrlM.C..No.3410/2023
"2(d). "complaint" means any allegation made orally
or in writing to a Magistrate, with a view to his
taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report."
7. As per the above section, complaint means any
allegation made orally or in writing to a Magistrate, with a view
to his taking action under this Code, that some person, whether
known or unknown, has committed an offence, but does not
include a police report. The Sub-divisional Magistrate, invoking
the powers under Section 133 of the Code, is not acting based
on any complaint. Section 133(1) says that whenever a District
Magistrate or a Sub-divisional Magistrate or any other Executive
Magistrate specially empowered in this behalf by the State
Government on receiving the report of a police officer or other
information and on taking such evidence, can pass appropriate
orders. Nowhere in Section 133 of the Code it is stated that the
District Magistrate or Sub-divisional Magistrate or any
Executive Magistrate is taking action based on any 'complaint',
instead, Section 133 clearly states that action taken is based on
a 'report' of a police officer or other 'information'. Moreover,
CrlM.C..No.3410/2023
the respondent in a proceeding under Section 133 of the Code,
is not an accused.
8. In such circumstances, I am of the considered opinion
that Section 256 of the Code cannot be invoked by an Executive
Magistrate or Sub Divisional Magistrate or District Magistrate,
while invoking the powers under Sections 133 to 138 of the
Code. The upshot of the above discussion is that Annexure-A7
order passed by the Executive Magistrate closing the case
invoking the powers under Section 256 of the Code is
unsustainable.
Therefore, this Criminal Miscellaneous Case is allowed in
the following manner:
1. Annexure-A7 order is set aside.
2. The 2nd respondent is directed to restore
M.C.No.1(A)/2019 and finalise the
proceedings, after giving an opportunity of
hearing to the petitioners and the 3 rd
respondent, as expeditiously as possible.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
CrlM.C..No.3410/2023
APPENDIX OF CRL.MC 3410/2023
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE JUDGMENT IN WP(C) NO.
34587/2017 DATED 10/08/2018
Annexure A2 TRUE COPY OF THE ORDER OF THE 2 ND
RESPONDENT DATED 26/12/2019
Annexure A3 TRUE COPY OF THE JUDGMENT IN CRIMINAL
REVISION PETITION NO. 3/2020 DATED
23/12/2020
Annexure A4 TRUE COPY OF THE JUDGMENT IN CRL.M.C.
NO. 240/2021 DATED 11/07/2022
Annexure A5 TRUE COPY OF THE APPLICATION FILED BY
THE PETITIONERS BEFORE THE SUB
DIVISIONAL MAGISTRATE DATED 17/08/2022
Annexure A6 TRUE COPY OF THE LIST OF DOCUMENTS
SUBMITTED BY THE PETITIONERS DATED
06/03/2023
Annexure A7 CERTIFIED COPY OF THE PROCEEDINGS OF THE
2 ND RESPONDENT, NO. A2- 14193/2021
DATED 07/03/2023
Annexure A8 PHOTOGRAPHS OF THE TREES
