AMBI Vs. STATE OF KERALA

JUDGEMENT

(1.) his is a reference made by the Sessions Judge of Ernakulam in Criminal R.P.

(2.) The revision petitioner was the counter petitioner in a miscellaneous case on the file of the Executive First Class Magistrate, Fort Cochin. On the report of the police that a jack tree belonging to the petitioner and standing adjacent to the compound wall of a convent building is in such a dangerous condition that it is likely to fall and cause injury to the persons living in the neighbourhood the Magistrate made a conditional order under S.133, Criminal Procedure Code and notice was issued to the counter petitioner to cut and remove the tree within seven days or to show cause why the order should not be enforced. The counter petitioner entered appearance and filed a statement to the effect that the tree is not in such a condition as to fall and cause injury to the persons in the neighbourhood and that he had cut the overhanging branches. He added that these facts could be ascertained by a local inspection.Thereupon the Magistrate inspected the site and on the strength of the impression he gathered on inspecting the locality the very next day he made the order absolute.

(3.) The counter petitioner challenged the correctness of the order in the revision before the Sessions Judge and contended that the order is vitiated by his failure to follow the mandatory provisions of S.137, Crl. P.C. The contention found favour with the learned Sessions Judge who has reported the case to this Court under S.438, Criminal Procedure Code with a recommendation that the order of the Magistrate be reversed.