CRL.M.C. No.194/2012 (D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936** ## **CRL.MC.NO. 194 OF 2012 (D)** **------------------------------------[C.C. NO.263/2010 BEFORE THE JUDICIAL FIRST CLASS - MAGISTRATE COURT, PALA]** **...........** ## **PETITIONERS/ACCUSED:** **------------------------------------** ## **1. JOBY,** **S/O.THOMAS, PANTHALANIKKAL HOUSE, PUVARANNI, NJANDUPARA.P.O., MEENACHIL VILLAGE.** ## **2. JOSEKUTTY.T.J,** - **S/O. JACOB, KUZHITHOTTU HOUSE, AMPARANIRAPPEL.P.O, KONDOOR VILLAGE, PALA.** ## **3. JOSEPH.P.M,** - **S/O. MATHAI, PATHALANIKKAL HOUSE, KOCHUKOTTARAM, PUVARANNI.P.O., MEENACHIL VILLAGE, PALA.** ## **4. SHAJI,** **S/O. SCARIA, PANTHALANIKKAL HOUSE, KOCHUKOTTARAM, PUVARANNI.P.O, PALA.** **BY SRI.RAJU JOSEPH, SENIOR ADVOCATE, ADVS.SRI.GEORGE KUTTY MATHEW, SRI.C.N.MIDHUN.** ## **RESPONDENTS/STATE AND COMPLAINANT:** **---------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031.** ## **2. P.J.MANNI,** **S/O. JOSEPH, PULLATTU HOUSE, PUVARANNI.P.O, MEENACHIL TALUK, PALA-686 577.** **R1 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH, R2 BY ADV. SRI. P.C. HARIDAS.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.194/2012:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE -1: TRUE COPY OF THE FINAL CHARGE IN C.C. NO.263/2010 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA.** **ANNEXURE -2: TRUE COPY OF THE RELEVANT PAGE OF THE PETITION'S REGISTER MAINTAINED BY PALA POLICE STATION. ANNEXURE -3: TRUE COPY OF THE ORDER DTD. 27/10/2010. ANNEXURE -4: TRUE COPY OF THE ORDER DTD. 27/10/2010. ANNEXURE-5: TRUE COPY OF JUDGMENT AND DECREE IN A.S. 41/2011 DTD. 19/12/2011.** **ANNEXURE -6: TRUE COPY OF THE ORDER IN C.M.P. NO.3045/2010 DTD. 22/09/2010.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.194 of 2012 ---------------------------------------------Dated this the 2[nd] day of April, 2014 ## **ORDER** This is a petition filed u/s.482 of Cr.P.C. to quash proceedings in C.C.No.263/2010 pending before Judicial First Class Magistrate Court, Pala for offence punishable u/s.434, 427, 447 and 506 (1) r/w.34 IPC. The petitioners are accused 1 to 4 in the above case, which was registered on the basis of a complaint filed by the 2[nd] respondent before Judicial First Class Magistrate Court, Pala. Subsequently, the above complaint was forwarded to the Pala Police Station for investigation u/s.156(3) Cr.P.c. and ASI of Police, Pala completed the investigation and Annexure-1 final report was filed before Judicial First Class Magistrate Court, Pala. Hence, the petitioners approached this Court with this petition to quash the proceedings by invoking the inherent Crl.M.C.No.194/12 2 jurisdiction. 2. The allegation of the 2[nd] respondent in the complaint was that in E.P.No.40/2009 filed by him, a commission was appointed by the court to fix the boundary. Accordingly, on 10.4.2010, the Advocate Commissioner along with Surveyor came to the property of the 2[nd] respondent for fixing the boundary. At that time, accused Nos.1 and 2 made obstructions and intimidated the Commissioner. He obtained the help of Pala Police and in the presence of the police officers, the measurement was completed. On 11.4.2010 at 1.30 p.m., the accused trespassed into the property of the 2[nd] respondent, demolished the boundary, destroyed the survey stones and intimidated the 2[nd] respondent and thereby committed the offence. As a result, the 2[nd] respondent sustained a loss of Rs.4,000/-. Aggrieved by that, he filed a complaint before the Judicial First Class Magistrate Court, Pala. Hence this petition. 3 Crl.M.C.No.194/12 3. The learned counsel appearing for the petitioners contended that there is a civil dispute between the petitioners and the 2[nd] respondent and there is no meaning in proceeding with Annexure-1 final report. The civil suit is still pending before Civil Court and the case was based upon a commission report, which was set aside by the appellate court and remanded to the executing court for preparing fresh boundary on the basis of a proper measurement. He relied the decisions in [2011 (7) SCC 59, _**Inder MohanGoswami and another**_ v. _**State of Uttaranchal and others**_ [2007(12) SCC 1], and _**Anitha Malhotra**_ v. _**Apparel Export Promotion Council and another**_ [2012 (1) SCC 520]. 4. The learned counsel appearing for the 2[nd] respondent admitted the pendency of a civil suit in the civil Court. But, he contended that Annexure-1 prima facie shows the criminal act done by the petitioners on the alleged day. They trespassed into the property and Crl.M.C.No.194/12 4 demolished the boundary, destroyed the survey stone and committed the offence. When prima facie case is made out, it is necessary to interfere in such matters. He relied Apex Court decision in _**Amit Kapoor**_ v. _**Ramesh Chander and another**_ [(2012) 9 SCC460]. 5. The inherent jurisdiction u/s.482 Cr.P.C. can be invoked to prevent abuse of process of Court or otherwise to secure the ends of justice. While considering the jurisdiction, the High Court would not conduct enquiry with regard to the offence in question attracting the offence alleged for a conviction. Moreover, the High Court has no authority to examine as to whether the disputed offence alleged in the complaint is reliable or not. It is the satisfaction of the High Court to consider whether prima face case is made out in the complaint. Therefore, in _**Monica Kumar**_ v. _**State of Uttar Pradesh**_ [(2008) 8 SCC 781] it is held that inherent jurisdiction can be exercised sparingly, carefully and with caution and only when such Crl.M.C.No.194/12 5 # exercise is justified by the tests specifically laid down in # _v_ . the section itself. Apex Court in _**State of Haryana Bhajanlal**_ , the Supreme Court pointed out that: [1992 SCC ## (Crl) 426] “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance. Therefore, the first test pointed out by the Apex Court is Crl.M.C.No.194/12 6 the prima facie case. There is a responsibility on the side of the Court to consider the allegation made in the complaint and the documents submitted along with the complaint and to ascertain whether prima face case is established for a prosecution. If allegations are absurd and inherently improbable, which does not attract the basic ingredients of any criminal offence, then Court may interfere in such situation. This position is clearly established in _**Bhajanlal's case**_ (supra). The allegations in this case show that there is a civil suit pending between the parties. As per the direction of the Court, the Commissioner visited the property and fixed the boundary. On the next day itself, the petitioners trespassed into the property and committed the aforesaid offences. Therefore, I cannot say that, that is a matter of civil dispute. In _**Amit Kapoor's case**_ (supra), it is held that where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does Crl.M.C.No.194/12 7 not mean that a criminal complaint cannot be maintained. Therefore, prima facie case is made out in this case. If that be the position, this is not a fit case to invoke the inherent jurisdiction to quash Annexure-1 final report in C.C.No.263/2010 pending before the Judicial First Class Magistrate Court, Pala. Therefore, there is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.194/12 8