MARIA JULIA COUTINHO Vs. ANANTA SOMAN CHITARE

JUDGEMENT

(1.) The facts relevant to this Reference made by the Sessions Judge, Panaji, may first be shortly stated. It was on 11th of August 1967 that the complainant Ananta Soman Chitare made an application to the Sub-Divisional Magistrate, Margao praying that the three respondents cited in the application should be directed to cut one coconut tree in the village, Demana, Cuncolim, as it was old and was likely to fall in the ensuing monsoon season. It was also alleged that the tree was a constant source of public nuisance. Before moving this application, it appears, the complainant Chitare had sought the assistance of the Local Mamlatdar for cutting the tree. The Mamlatdar made an order on 5th of August 1967 directing the respondents aforementioned to cut the tree within 48 hours. However, since the Mamlatdar had no jurisdiction to issue such direction the respondents ignored the same and it is for that reason that the complainant approached the Magistrate for the necessary relief. The Magistrate issued the conditional order under Section 133 of the Criminal Procedure Code, hereinafter called the Code, on 16th of August 1967 calling upon the respondents to cut the tree within 7 days from the date of the communication of the order or to appear before him on 28-8-1967 and show cause why the order should not be enforced. The respondent No. 1, Maria Julia Coutinho, alone put in appearence before the Magistrate and she denied the allegations of the complainant Chitare that the tree was in imminent danger of falling down or that it constituted a public nuisance. Thereafter the Magistrate fixed the case for evidence. The complainant did not produce any evidence nor he made his own statement. Maria Coutinho examined two witnesses besides having entered the witness box herself. It is thereafter that the Magistrate passed an order on 10th of September 1968 making the conditional order dated 16th of August 1967 absolute. It was mentioned in that order that the tree should be cut down by the respondents of the case within 8 days on the pain of being proceeded against under Section 188 of the Indian Penal Code. Aggrieved with that order Maria Coutinho lodged a revision petition in the Court of the Sessions Judge at Panaji.

(2.) The learned Sessions Judge has referred the case to this Court with the recommendation that the order dated 10-9-1968 made by the Magistrate should be quashed. The reasons on which the recommendation was founded by the learned Sessions Judge are as under :-

(3.) The second ground adopted by the Sessions Judge amounts to appraisal of evidence led before the Magistrate. I am afraid the learned Sessions Judge could not have embarked upon the appraisal of evidence while sitting in revision unless he had reached the conclusion, which is not evident from the order of reference, that the Magistrate had exhibited capriciousness in the matter of assessment of the evidence.