## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE K.HARIPAL**
**MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943**
**CRL.MC NO. 2572 OF 2021**
**CC 534/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT – I, PATHANAMTHITTA**
**CRIME NO. 3527/2017 OF PATHANAMTHITTA POLICE STATION**
## **PETITIONER/SOLE ACCUSED:**
**AJITHA SURENDRAN,**
**AGED 49 YEARS, W/O.LATE SURENDRAN, PONVELIPARAMBIL VEETIL, ELANTHOOR EAST P.O., ELANTHUR VILLAGE,KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT 689 643**
## **BY ADVS.MANU RAMACHANDRAN**
**SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.SAMEER M NAIR**
## **RESPONDENTS/STATE & DE-FACTO COMPLAINANT:**
**1 THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031**
- **2 THE STATION HOUSE OFFICER PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA DISTRICT 689 645**
- **3 GEETHA AGED 43 YEARS**
**W/O.MANOJ, PONVELIPARAMBIL VEETIL, ELANTHOOR EAST P.O., ELANTHUR VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT 689 643.**
## **R1 & R2 BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR**
**R3 BY ADVS.M.T.SURESHKUMAR**
**R.RENJITH**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.11.2021, THE**
**COURT ON 13.12.2021 PASSED THE FOLLOWING:**
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## **ORDER**
This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to quash the entire proceedings in Crime No. 3527 of 2017 of Pathanamthitta police station, which is now pending as C.C. 534/2018 on the file of the Judicial First Class Magistrate's Court-I, Pathanamthitta. It was initiated by the 3[rd] respondent by preferring a complaint before the Court alleging offence under Sections 447, 427 and 506 of the Indian Penal Code. The allegation is that on 01.08.2017 at 8.00 a.m. the petitioner, who is the accused, had trespassed upon the 5¼ cents of property of the defacto complainant in Survey No. 329/6-2 of Elanthoor village, which belongs to her husband and poured hot water and destroyed some plants. Again on 21.08.2017 at 8.00 a.m. she trespassed into the property with a knife and destroyed cultivation and when the defacto complainant had gone there, she had intimidated her. Again on 24.08.2017 at 9.00 a.m. she destroyed
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the boundary wall to an extent of one metre and caused damage to the tune of Rs.10,000/- to the defacto complainant. Accordingly, a complaint was preferred on 20.10.2017 which was forwarded to the police for registering the crime and thus the crime was registered and on conclusion of investigation Annexure-A2 charge sheet was laid, basing on which the said case was taken on file.
2. The petitioner contends that these attempts were made to silence the petitioner. Annexures-A1 and A2 were filed suppressing the pendency of Annexures-A3 and A4 civil suits wherein the title, possession and boundary of the property are disputed by the petitioner and her children. The parties are relatives and the complaint has been filed suppressing material facts. In the light of the civil disputes pending between the parties, entire proceedings are sought to be quashed.
3. I heard the learned counsel for the petitioner, the learned counsel for the 3[rd] respondent and also the learned Senior Public Prosecutor for respondents 1 and 2.
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4. The learned counsel for the petitioner placed reliance on an earlier proceedings initiated by the 3[rd] respondent against the petitioner as the second accused alleging offence under Section 509 IPC and Section 119(b) of the Kerala Police Act; challenging the maintainability of such a case, C.C. No. 1119 of 2017, the petitioner and her daughter, who were the accused, had moved this Court with Crl.M.C. No. 5006/2020 and on that basis they moved the trial court with a discharge petition and by order dated 05.02.2021, they were discharged by the Court. The learned counsel submits that these are mere abuse of the process of court and therefore, the entire proceedings are sought to be quashed. The counsel also relied on the decisions reported in **Anilakumari v. State of Kerala and others [2019 (3) KHC 311]** , **Govind Prasad Kejriwal v. State of Bihar and Another [2020 KHC 6102]** and **Srikanth M. v. State of Telengana and Another [2019 KHC 7064].**
5. On the other hand, the learned counsel for the 3[rd]
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respondent argued that it is true that civil disputes are pending; but her husband had obtained absolute right over the property on an oral partition and there are documents executed by the parties on the basis of such oral partition. The husband of the petitioner was also parties to some of the documents and therefore, now she cannot turn round and deny such earlier transactions.
6. After rushing through the material documents produced by parties, it is very clear that the parties are near relatives. The petitioner and the third respondent are co-sisters, the third respondent is the wife of the husband's brother of the petitioner. The petitioner is a widow and after the death of her husband there are disputes over some properties left behind by Sreedharan, the father-in-law of the petitioner, who died intestate. It is evident from the documents produced by the petitioner that the said Sreedharan had died intestate, Sreedharan and his wife had equal share over a property and after the death of Sreedharan, on the strength of some oral partition, some documents were created. It appears that the
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petitioner and her children who are legal heirs of Surendran, who is one of the children of Sreedharan, have not accepted the oral partition and now her children have filed Annexure A4 suit for partition and separation of the share of Surendran over 62 cents of property. Similarly, referring to Annexure A3 suit i.e., O.S. 410/2013 pending before the Munsiff's Court, Pathanamathitta, she said that, that also is a title suit for declaring the title and possession of the husband of the third respondent and others. Annexures A3 and A4 indicate that civil disputes are pending before the Munsiff's Court, Pathanamthitta. There are also reasons to think that there are no fixed boundaries between the alleged holdings now in occupation of different sharers. Some of the sharers have claimed that they had obtained right, title and interest under an oral partition. Evidently, petitioner and her children have not accepted an oral partition. Therefore, in the light of the pendency of the civil dispute among the parties, allegations of trespass and act of mischief cannot sustain.
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7. Secondly, the alleged incidents had happened on 14.08.2017, 21.08.2017 and 24.08.2017. But the complaint was preferred by the third respondent on 20.10.2017, after about two months. Reason for the delay cannot be discerned from the Annexure A1 complaint. Of course, it is stated that she had preferred complaints before the Pathanamthitta Police and also the District Police Chief, under the influence of the petitioner/the accused, police failed to register a case. But particulars of such complaint preferred before police or the District Police Chief are not furnished nor copies were attached to the complaint. Therefore, such a delay cannot be ignored lightly.
8. When civil cases are pending disputing the right, title and interest over certain items of properties, offence under trespass, mischief etc., cannot be accepted in right earnest. There are reasons to believe that the parties are at logger heads. At least the order dated 05.02.2021 in C.C. No. 1119/2017 is an eye opener to say that the third respondent is in the habit of preferring
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complaints against the petitioner and others on trivial matters. At that time, she had made complaint alleging that the daughter and the petitioner had taken some videographs of the third respondent doing some work in front of her house on the public road and that it was posted in social media; then also a crime was registered and the police laid charge sheet and that case was terminated by filing a discharge petition; that discharge petition stands allowed. It seems that the said order has become final.
9. Here also trivial matters have been blown out of proportion giving the colour of criminal act. The first allegation is that on 14.08.2017 she had poured hot water over some cultivation in her property. Secondly, it was stated that she had destroyed one tapioca plant and also cut leaves of a plantain on 21.08.2017; then on 24.08.2017 at 9.00 A.M., she had trespassed upon the property and destroyed hollow-bricks boundary wall at about one meter length. As stated earlier, parties are near relatives and civil disputes are pending, they are at logger heads and in this background, it is
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not in the interest of justice to proceed against the petitioner by giving the cloak of a criminal offence to a civil dispute. Therefore, this is eminently a fit case for quashing the proceedings since the process of the court are being attempted to be misused by the third respondent. Entire proceedings in C.C. No. 534/2018 on the file of the Judicial First Class Magistrate's Court – I, Pathanamthitta are
quashed and the petitioner shall stand exonerated.
The Crl. M.C. is allowed as above.
Sd/-
**K.HARIPAL JUDGE**
okb/DCS/10.12.21
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## **APPENDIX**
## **PETITIONER'S ANNEXURE**
|**ANNEXURE A1**|**THE CERTIFIED COPY OF THE FIR IN CRIME NO.3527**|
|---|---|
||**OF 2017 OF PATHANAMTHITTA POLICE STATION,**|
||**PATHANAMTHITTA DISTRICT.**|
|**ANNEXURE A2**|**THE CERTIFIED COPY OF THE FINAL REPORT IN**|
||**CRIME NO.3527 OF 2017 OF PATHANAMTHITTA POLICE**|
||**STATION, PATHANAMTHITTA DISTRICT WHICH IS NOW**|
||**PENDING AS C.C.NO.534/2018 ON THE FILES OF**|
||**JFMC-I, PATHANAMTHITTA.**|
|**ANNEXURE A3**|**TRUE COPY OF THE PLAINT IN O.S.NO.410/2013**|
||**PENDING BEFORE THE MUNSIFF'S COURT,**|
||**PATHANAMTHITTA.**|
|**ANNEXURE A4**|**TRUE COPY OF THE PLAINT IN O.S.NO.34/2020**|
||**PENDING BEFORE THE MUNSIFF'S COURT,**|
||**PATHANAMTHITTA.**|
