## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941**
## **Crl.MC.No.5242 OF 2019(E)**
**CC NO.444/2018 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, VATAKARA CRIME NO.240/2017 OF VADAKARA POLICE STATION, KOZHIKODE**
## **PETITIONERS/ACCUSED 1 & 2:**
|**1**|**AMJITH.P.K., AGED 22 YEARS,**|
|---|---|
||**S/O. BABU, PUTHURTHAZHAKUNIYIL, MEMUNDA P.O,**|
||**VATAKARA TALUK.**|
|**2**|**ATHUL VIJAYAN,**|
||**AGED 26 YEARS, S/O.VIJAYAN,**|
||**KIZHAKKE PUTHIYEDATHU HOUSE, MEMUNDA P.O,**|
||**VATAKARA TALUK.**|
**BY ADV. SRI.ZUBAIR PULIKKOOL**
## **RESPONDENTS/DE FACTO COMPLAINANT & STATE:**
**1 KUNHIKANNAN, AGED 72 YEARS, S/O. CHOYI, THAZHA PUTHOOR HOUSE, MEMUNDA P.O, VATAKARA TALUK, PIN-673 104. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. R1 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY R2 BY SENIOR PUBLIC PROSECUTOR SRI.M.K.PUSHPALATHA**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ORDER**
This petition is filed under Section 482 of the Code of Criminal Procedure, 1974 (hereinafter referred to as “the Code” for brevity).
2. The petitioners find themselves arrayed as the accused in C.C.No.444 of 2018 on the file of the Judicial First Class Magistrate Court-I, Vatakara, in which case, they have been called upon by the learned Magistrate to answer a charge Sections 341, 447, 294 and 147 of the IPC.
3. Crime No.240/2017 was registered based on a complaint lodged by the 1[st] respondent herein before the District Police Chief on 5.2.2017, which was forwarded to the Dy.S.P, Vatakara for necessary action. The Dy.S.P forwarded the complaint to the Station House Officer, Vatakara, who, in turn, registered the aforesaid crime.
4. In his complaint, the 1[st] respondent alleged that on 04.02.2017, while he was on his way to his residential home through the pathway possessed by him, the 1[st] petitioner, who is his neighbour, obstructed his passage by placing a scooter in the middle of the pathway. When his act was questioned, the 2[nd] petitioner, who was standing nearby, along with ten others, who could be identified at sight, approached him and abused him.
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5. Sri.Zubair Pulikkool, the learned counsel appearing for the petitioners, contended that the de facto complainant approached the Civil Court contending that the pathway leading to his house from the southern Panchayat road exclusively belonged to him and the persons, who are residing on either sides, are not permitting to put up a boundary on its eastern and western sides. The father of the 1[st] petitioner was a defendant in the said suit. They contended that the pathway used by the 1[st] respondent was formed more than three decades back and that they had perfected the right of easement by prescription. They also contended before the Civil Court that the 1[st] respondent had no exclusive right to use the said pathway and if that be the case, his claim for putting up a wall on either sides cannot be allowed. The learned Munsiff dismissed the suit by judgment dated 28.02.2017 holding that the 1[st] respondent had suppressed the fact that the pathway over which right was claimed by him was formed after taking properties from the either sides and hence, he cannot claim any exclusive right. Referring to the judgment of the Appellate Court, which is produced as Annexure-3, it is contended that the said finding was confirmed in appeal as well. It is urged by the learned counsel that the entire allegations in the complaint are structured on the premise that the 1[st] respondent had absolute right and in view of the judgment of the Civil Courts, his claim has been found to be one without any
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merit. No incident of the nature alleged had taken place and it is urged that there is total lack of materials to conclude that the offences alleged are, in fact, made out. The defeated plaintiff in a Civil Suit has set the criminal law in motion to set up an illegal claim, contends the learned counsel. The learned counsel pointed out that when the petitioners have a right to use the pathway, the offences under Sections 447 and 341 would have no application. He would also refer to the judgment of this Court in **Latheef v. State** [2014 (2) KLT 987] and would urge that the offence under Section 294(b) of the IPC is not attracted.
6. The party respondent has entered appearance through counsel. Sri. Parthasarathy, has very strenuously opposed the prayer. According to the learned counsel, against the findings of the trial court as well as the Appellate court, the 1[st] respondent has preferred a Second Appeal before this Court, which is pending consideration. It is further urged that the persons residing on either sides of the pathway have direct access to the Panchayat road and if that be the case, they have no reason to encroach into the pathway which is meant for the exclusive use of the 1[st] respondent.
7. I have heard the learned Public Prosecutor as well
8. The records, which are made available before this Court would
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show that the 1[st] petitioner as well as the party respondent are neighbors. As early as in the year 2013, the party respondent had instituted a suit before the jurisdictional Munsiff with a prayer to identify the sides of a pathway meant for accessing the property from the southern public road and also for an order of injunction retraining the defendants in the said suit from interfering with the construction proposed to be carried out by the 1[st] respondent on either sides of the pathway. The father of the 1[st] petitioner was arrayed as the 4[th] defendant in the said suit. The suit was dismissed by the learned Munsiff after taking evidence in the said matter. The court below held that the 1[st] respondent had instituted the suit by suppressing material facts and that he could not claim exclusive possession over the same. The said finding was confirmed by the Appellate Court by Annexure-3 judgment. The instant complaint is seen filed just prior to the rendering of judgment by the trial Court and it was after the submission of the final report that the Appellate court had rendered judgment in the appeal. In order to attract the offence under Section 447 of the IPC, it has to be shown that the petitioners have entered the property of another with intent to commit any offence or to intimidate, insult or annoy any person in possession. From the findings of the Civil Court, it is apparent that the 1[st] petitioner has a right to access the pathway. If that be the case, the assertion of the claim of right by the
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petitioners is a bona fide one and he cannot be pinned down with a charge for criminal trespass. The essential ingredient of the offence under Section 447 of the IPC is lacking. In order to attract the offence under Section 341 of the IPC, the party respondent alleges that his passage was obstructed by placing a bike. This allegation is based on the premise that the pathway is meant for the exclusive use of the 1[st] respondent. Apparently, this assertion is not correct. The petitioners also had a right to use the pathway and this fact is evident from the judgment of the Civil Court. Furthermore, the 1[st] respondent has no case that the obstruction was such that it was to prevent him from proceeding in any direction. Except for a vague allegation that the party respondent was abused, he has no case that any specific words were used or that it was used in any public place or that the words used involved some lascivious elements or that it appealed to the prurient interests or that it was of such a nature as it would corrupt those whose minds are open to immoral influences. (See **Latheef v. State** [2014 (2) KLT 987; **Dhanisha v. Rakhi N Raj and Another** [2012 (2) KLT 55] ). From the discussions above, it is apparent that none of the allegations in the final report makes out an offence against the petitioners.
9. Exercise of jurisdiction under the inherent power as envisaged in
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Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. In the event, however, on a perusal of the complaint or the final report, the court comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it do not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Having considered all the relevant facts, I am of the view that the continuance of the criminal proceedings against the petitioner is a sheer abuse of process.
In the result, this petition is allowed. Annexure-1 charge sheet and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.444 of 2018 on the files of the Judicial First Class Magistrate Court-I, Vatakara are quashed.
**SD/-**
## **RAJA VIJAYARAGHAVAN V.,**
**JUDGE**
DSV/3.9.19
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE 1 COPY OF CHARGE SHEET IN CRIME NO. 240/2017 DATED 08.02.2017 OF VATAKARA POLICE STATION. ANNEXURE 2 TRUE COPY OF THE COMPUTER GENERATED COPY SHOWING THE NAME OF THE FIRST PETITIONER. ANNEXURE 3 TRUE COPY OF THE JUDGMENT DATED 31.10.2018 IN A.S. NO. 27/2017 ON THE FILE OF THE SUBORDINATE COURT OF VATAKARA.**
## **RESPONDENT'S/S EXHIBITS:**
**NIL**
**//TRUE COPY//**
**P.A.TO JUDGE**
