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V.S.Sankaranarayanan v. The Sub-Divisional Magistrate Cum - Criminal Original Petition No.3506 of 2004  RD-TN 2234 (9 July 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09/07/2007
THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM
Criminal Original Petition No.3506 of 2004
M.P.No.1166 of 2004
V.S.Sankaranarayanan ... Petitioner vs.
The Sub-Divisional Magistrate Cum
Revenue Divisional Officer,
Tirunelveli District ... Respondent Petition filed under Section 482 of the Code of Criminal Procedure to call for the records pertaining to the order of the respondent made in Na.Ka.A4/4190/2004 dated 04.08.2004 on the file of the respondent and quash the same.
For Petitioner ... A.Sankarasubramanian
For Respondents... Mr.Mohammed Yusuf, Advocate
This petition filed to set aside the order passed by the learned Sub Divisional Magistrate cum Revenue Divisional Officer, Tenkasi in Na.Ka.A4/4190/2004 dated 04.08.2004 under Section 133 Cr.P.C.
2. The learned counsel for the petitioner submits that the learned Executive Magistrate, without following the procedures contemplated and without application of mind, passed an order under Section 133 Cr.P.C. in the nature of final order. Under Section 133 Cr.P.C, only conditional order can be passed and after following procedures contemplated under Section 134 Cr.P.C to 140 Cr.P.C, the final order can be passed under Section 136 or 138 Cr.P.C.
3. The learned Additional Public Prosecutor for the prosecution was heard. The order passed by the learned Sub-Divisional Magistrate-cum-Revenue Divisional Officer, shows that within 15 days from the date of receipt of the copy of that order, the trees should be removed, otherwise it would be removed at the expense of Government and the amount could be recovered from the petitioner.
4. Section 133 Cr.P.C. speaks of a conditional order in the circumstances mentioned in Section 133, Cr.P.C. itself and says that "the Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance within a time to be fixed in the order" "of, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute."
5. Here, in the impugned order the second part of Section 133(1) Cr.P.C requiring the petitioner to show cause against the conditional order was not at all complied with.
6. Therefore without proper application of mind, the Sub Divisional Magistrate has passed the impugned order in the nature of final order without giving opportunity to the petitioner and therefore it is liable to be set aside.
7. With the above observations, the Criminal Original Petition is allowed and and accordingly, the impugned order passed by the Sub Divisional Magistrate cum Revenue Divisional Officer, Tenkasi in Na.Ka.A4/4190/2004 dated 04.08.2004 is set aside. Consequently, connected M.P. is also closed. To
1.The Sub-Divisional Magistrate Cum
Revenue Divisional Officer,
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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