KOCHU PAUL Vs. VARUNNY THATTIL PALLIPURATHOOKARAN

JUDGEMENT

(1.) PETITIONER challenges order of learned Sessions Judge, Thrissur in Crl.R.P.No.78 of 2010 whereby the order passed by the R.D.O in Proceedings No.A3 11660/2909 was set aside and the matter was remitted to the R.D.O for fresh disposal. According to the petitioner, the order of remand is unwarranted since the Sub Divisional Magistrate (it should be S.D.M and not the R.D.O) has passed a well considered order referring to the reports of the Village Officer and Tahsildar which revealed that the trees in question are standing in a dangerous condition and that it is likely to fall down and endanger human life. Learned counsel has submitted that petitioner has preferred petition in the year 2009 and even after a lapse of about two years nothing fruitful has transpired. I have heard learned Public Prosecutor also.

(2.) IT is seen that the S.D.M has passed order merely based on reports submitted by the Village Officer and Tahsildar. That in my view is illegal since under Sec.138 of the Code of Criminal Procedure (for short, "the Code") if the person against whom an order under Sec.133 of the said Code made appears and shows cause against the order, the Magistrate has to take evidence in the matter as in a summons case. Merely going through reports of the Village Officer and Tahsildar does not amount to taking evidence as in a summons case. The reports relied on by the S.D.M may be sufficient for the purpose of Sec.133(i) of the Code but under Sec.138 of the Code what is relevant is the evidence that the village Officer and Tahsildar who submitted the reports gave. IT is necessary that the officers who submitted reports are examined by the S.D.M. The reports submitted by them could be proved and could be used to corroborate their evidence. Then alone it becomes evidence recorded as in a summons case. The order of the S.D.M suffers from the said illegality that evidence as contemplated under Sec.138(1) of the Code has not been recorded. This aspect of the matter has not been considered by the learned Sessions Judge. But I do not find reason to interfere with the ultimate order remitting the case to the S.D.M for fresh disposal. The S.D.M shall take evidence as required under Sec.138(1) of the Code in the light of the observations made above and pass appropriate orders as provided under law.