Kerala High Court

Thambi vs Narayanan on 25 September, 2024

Author: P.V. Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                         2024:KER:71459



            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946

                        CRL.MC NO. 4057 OF 2018

        ORDER   DATED   28.09.2013   IN   CRRP   NO.28    OF   2011   OF

DISTRICT COURT & SESSIONS COURT,THRISSUR

PETITIONER/REVSISION PETITIONER:

            THAMBI
            S/O.VARATHAPPAN, THOLATH HOUSE, KADAVALLUR
            VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT.
            PIN- 680 543

            BY ADVS.

            SRI.A.X.VARGHESE
            SRI.A.V.JOJO



RESPONDENTS/COMPLAINANT:

    1       NARAYANAN
            S/O.INNAYIKAN, VERALIPPARA HOUSE, KADAVALLUR
            VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT,
            PIN- 680 543.

    2       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA- 682 031.


            BY ADV.
            SRI.RAJIT (R1)
                                                       2024:KER:71459
CRL.MC No.4057 OF 2018

                                  2



OTHER PRESENT:

             BY ADV.
             SRI.RENJITH.T.R, SR.PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   25.09.2024,    THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                          2024:KER:71459
CRL.MC No.4057 OF 2018

                                    3


                  P.V. KUNHIKRISHNAN, J.
           -----------------------------------
                 Crl.M.C.No.4057 of 2018
           -----------------------------------
        Dated this the 25th day of September, 2024

                                  ORDER

The petitioner is aggrieved by Annexure A5

order passed by the Sessions Court, Thrissur in

Crl.R.P. No.28/2011.

2. The 1st respondent herein filed M.C.

No.60/2010 before the Sub Divisional Magistrate,

Thrissur alleging that, two coconut trees belongs to

the petitioner are dangerously leaning towards his

residential house causing serious threat to the

property of the complainant and his family members.

A conditional order under Section 133 Cr.P.C. was

passed by the Sub Divisional Magistrate. In the

meanwhile, the 1st respondent filed W.P.(C)

No.2703/2010 before this Court and as per the order

dated 23.02.2010, this Court directed the Secretary,

Kadavaloor Grama Panchayath to enforce the order 2024:KER:71459 CRL.MC No.4057 OF 2018

already issued by the Panchayath.

3. The petitioner contended before the

Sub Divisional Magistrate that he had cut and

removed one coconut tree out of two referred in the

complaint. Thereafter, the 1st respondent again

approached this Court by filing W.P.(C)No.23301/2010

and by order dated 04.10.2010, a direction was given

to the Sub Divisional Magistrate to dispose

M.C.62/2010. Thereafter, the Sub Divisional

Magistrate proceeded with the matter. PW 1 to PW3

were examined on the side 1st respondent and Exts.P1

to P5 were marked. On the side of the petitioner

CPW1 to CPW3 were examined and Exts.CP1 to CP7 were

marked. Thereafter, the Sub Divisional Magistrate

ordered to cut and remove the remaining coconut

trees also. Annexure A1 is the order.

4. Aggrieved by Annexure A1 order, the

petitioner filed Crl.R.P.208/2011 before the

Sessions Court, Thrissur. The Sessions Court, 2024:KER:71459 CRL.MC No.4057 OF 2018

Thrissur, modified the order to the effect that the

coconut trees can be given support by tying with an

iron rope. Annexure A2 is the order passed by the

Revisional Court. It is submitted that the in

compliance with the direction in Annexure A2

judgment, the petitioner tied the coconut tree with

an iron rope and filed an affidavit before the Sub

Divisional Magistrate, Thrissur, as evident by

Annexure A3.

5. Annexure A2 order was challenged by

the 1st respondent before this Court by filing

Crl.M.C.No.5813/2013. On 01.12.2016, this Court set

aside Annexure A2 order and remitted back the case

to the Sessions Court for fresh consideration.

Annexure A4 is the order. Thereafter, the Sessions

Court considered the matter afresh and passed order

as evident by Annexure A5. Aggrieved by Annexure A5,

this Crl.M.C is filed.

6. Heard the learned counsel for the 2024:KER:71459 CRL.MC No.4057 OF 2018

petitioner and the counsel appearing for the 1 st

respondent.

7. The counsel for the petitioner takes

me through Annexure A6 photographs to show that the

coconut tree is not in a dangerous situation as

contended by the 1st respondent. The counsel

submitted that the Sessions Judge urged in passing

Annexure A5 order.

8. The counsel appearing for the party

respondent submitted that the Session Judge passed

the order in tune with the directions of this Court

in Annexure A4 and Annexure A4 became final order.

9. This Court considered the contention

of the petitioner and the workers. Annexure A6 is

the photograph produced by the petitioner, as far as

the coconut tree is concernd. It is the photograph

produced in the year 2018 and now six years elapsed.

The Sessions Court passed Annexure A5 order based on

Annexure A4 order of this Court. It will be better 2024:KER:71459 CRL.MC No.4057 OF 2018

to extract the relevant portion of Annexure A4

order;

" 4. The learned Sessions Judge did not interfere with the finding of the learned Sub- Divisional Magistrate that the tree was dangerously leaning to the house of the petitioner. But the direction to cut the tree was interfered with. The learned Sessions Judge did not say that Annexure-B order was vitiated by any illegality, irregularity or impropriety. The learned Sessions Judge said that what was required was only to tie the tree with an iron rope. No convincing reason to find so is stated. The sole reason given is the evidence of PW1 (petitioner) that the Panchayat did not direct to cut this particular coconut tree. It is incorrect to mix the direction of the Panchayat with the grievance of the petitioner or the condition of the existing tree.

5. The learned Sessions Judge said that he was satisfied from the photographs and the oral evidence that tying of the tree with an iron rope was sufficient. He accordingly modified Annexure-B order. But the oral evidence justifying any such conclusion was not 2024:KER:71459 CRL.MC No.4057 OF 2018

discussed. It is not possible to uphold the interference made by the learned Sessions Judge. Failure to invoke the jurisdiction under Sec.482 of the Cr.P.C would result in the failure to secure the ends of justice in this case. The impugned order cannot sustain. The only option is that the case should go back to the Court of Session for fresh disposal.

6. In the result, the Crl.M.C is allowed. The order of the learned Sessions Judge in Crl R.P 28/2011 is set aside. The matter is remitted back to the Court of Session for consideration anew in accordance with law. The parties shall appear before the Sessions Court, Thrissur on 27.1.2016".

10. Annexure A4 order became final.

Thereafter, Annexure A5 order is passed. This Court

perused Annexure A5 order. I see no reason to

interfere with Annexure A5 order. The powers of this

Court under Section 482 Cr.P.C against the orders

passed by the Revisional Court is very limited.

Unless there are great illegality or irregularity 2024:KER:71459 CRL.MC No.4057 OF 2018

which will go to the root of the case, this Court

need not interfere with the orders passed by the

Revisional Court invoking the powers under Section

482 of Cr.P.C. I see no reason to interfere with

Annexure A5 order, especially because it is an order