How to remove dangerous tree u/s. 133 CrPC

Section 133(1)(d) of the Code of Criminal Procedure, 1973 provides that whenever a District Magistrate, a Sub-divisional Magistrate or other executive Magistrate, on receiving the report of a Police officer or other information and on taking such evidence, if any, as he thinks fit, considers that any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, or support of such tree is necessary, such Magistrate may make a conditional order requiring the person owning or possessing such tree to remove or support such tree within a time fixed in the order or to appear before him or some other Executive Magistrate subordinate to him at a time and place to be fixed in the order and to show cause why the order should not be made absolute.

Dangerous Tree

The Magistrate should record the evidence to find out as to whether the trees were in such a dangerous condition as to attract the provisions under Section 133(1)(d) of the Code. When no evidence was recorded by the Magistrate as mandated under Section 138(1) of the Code before making the conditional order absolute, the order cannot be said to be legal, proper and correct.

Even if the danger is to a single person due to the falling of the tree, the provisions of Section 133(1)(d) of the Code will be attracted. When there is no element of public nuisance the Magistrate had no jurisdiction to pass the order under Section 138 of the Code.

The Kerala High Court in Annakody v. State of Kerala, 2015 (4) KHC 892 held that it is clear from sub section (1) of Section 138 Cr.P.C. that if the person against whom an order under Section 133(1) Cr.P.C. is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case before making the conditional order absolute with or without modification, as provided under Section 138(2) Cr.P.C.

The site inspection by the Assistant Collector or even the learned Magistrate himself cannot be a substitute for taking the evidence as mandated under Section 138 (1) Cr.P.C. The report of the Secretary of Grama Panchayat or the Pollution Control Board cannot also be a substitute for taking the evidence as mandated under Section 138(1) Cr.P.C.