Crl.M.C. Nos. 3140 of 2016 & 33 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946** **CRL.MC NO. 33 OF 2019** **CRIME NO.1036/2015 OF KADAVANTHRA POLICE STATION, ERNAKULAM** **AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1120 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM PETITIONER/2ND ACCUSED:** **BABU C.K. AGED 50 YEARS S/O.KRISHNANKUTTY, CHANJAMATHIL HOUSE, PIRAVOM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.PRASANTH M.P SRI.C.THEJUS PURUSHOTHAMAN SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** - **1 SAIRA THAMPI KRISHNA W/O.LATE THAMPI KRISHNA, FLAT NO.7A, VIJAYA GLIMPSES APARTMENTS, ELAMKULAM VILLAGE, KADAVANTHRA, ERNAKULAM, KOCHI-682020.** - **2 STATE OF KERALA REPRESETNED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** - **BY ADV.SMT.NIMA JACOB, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.07.2024, ALONG WITH Crl.MC.3140/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. Nos.33 of 2019 & connected cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 CRL.MC NO. 3140 OF 2016** **CRIME NO.1036/2015 OF KADAVANTHRA POLICE STATION,** ## **ERNAKULAM** **AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1120 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM** ## **PETITIONERS/ACCUSED 1 TO 3:** - **1 SIBY.C.K** **S/O KRISHNANKUTTY, AGED 46 YEARS, FLAT NO.70, VIJAYA GLIMPSES APARTMENT, JAWAHAR NAGAR, KADAVANTHRA, COCHIN.** - **2 * WITHDRAWN(BABU C.K. AGED 50 YEARS** **S/O KRISHNANKUTTY, AGED 48 YEARS, CHANJAMATHIL HOUSE, PIRAVOM.) (THE SECOND PETITIONER IS WITHDRWAN FROM THE CRL.M.C AS PER ORDER DATED 22/11/18 IN CRL.MA 01/18)** - **3 SURESH GEORGE** - **S/O VARGHESE, AGED 57 YEARS, VARIKKASSERY HOUSE, PIRAVOM, PRESENTLY RESIDING AT ROHINI, LAYAM ROAD, TRIPUNITHURA.** **BY ADVS.** **SRI.SANTHOSH G. PRABHU** **SMT.A.ASWATHY** **SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** Crl.M.C. Nos.33 of 2019 & connected cases 3 - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (ON BEHALF OF THE S.I. OF POLICE, KADAVANTHRA POLICE STATION)** - **2 SAIRA THAMPI KRISHNA W/O LATE THAMPI KRISHNA, FLAT NO.7A, VIJAYA GLIMPSES APARTMENTS, ELAMKULAM VILLAGE, KADAVANTHRA, ERNAKULAM.** - **BY ADV. SRI.L.RAJESH NARAYAN** - **SRI.SANGEETHARAJ N.R., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.07.2024, ALONG WITH Crl.MC.33/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. Nos.33 of 2019 & connected cases 4 ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------Crl.M.C. Nos.3140 of 2016 & 33 of 2019 ---------------------------------------------Dated this the 25[th] day of July, 2024** ## **O R D E R** These Criminal Miscellaneous Cases are connected and therefore I am disposing of these two cases by a common order. 2. Crl.M.C. No. 3140/2016 is filed by accused Nos. 1 and 3 in C.C.No.1120/2015 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam arising from Crime No.1036 of 2015 of Kadavanthra Police Station. The petitioner in Crl.M.C.No.33/2019 is the 2[nd] accused in the above case. 3. The above case is charge sheeted against the petitioners in these Criminal Miscellaneous Cases alleging offences punishable under Sections 342, 451 & 506(i) r/w 34 IPC. 4. The prosecution case in brief is that the Crl.M.C. Nos.33 of 2019 & connected cases 5 defacto complainant is the wife of one Thampi Krishna. Sri. Thampi Krishna along with his elder brother, C.K. Vijayan started a public limited company by name Vijaya Hospitality and Resorts Limited. The company has established a Five Star Resort at Thekkady by name, Elephant Court and the establishment was being conducted profitably. It is the case of the complainant that, accused 1 and 2 who are the brothers of Sri. Thampi Krishna were also share holders of the company. It is further submitted that, after the death of Sri. Thampi Krishna, there were disputes among the Directors of the Company and accused 1 and 2 were making attempts to grab the property over which the defacto complainant had right and ownership. While so, on 24.07.2015 at about 10 AM, the accused criminally trespassed into the Apartment No. 7A of Vijaya Glimpses Flat at Jawahar Nagar, Kadavanthra and Crl.M.C. Nos.33 of 2019 & connected cases 6 wrongfully restrained the defacto complainant. It is also submitted that the accused threatened the defacto complainant with dire consequences unless she signs certain stamp papers. According to the prosecution, the above criminal acts were done by the accused in order to obtain the shares of the defacto complainant which she was having with the business concern by name and style Vijaya Hospitality and Resorts. Annexure I is the FIR and Annexure II is the final report. According to the petitioners, even if the entire allegations are accepted, the offence alleged are not attracted and therefore, the petitioners prayed for quashing the proceedings. 5. Heard the learned Senior Counsel Adv.S.Sreekumar as instructed by Adv. Bindu Sasthamangalam appearing for the petitioner in Crl.M.C.No.33 of 2019 and the learned Public Crl.M.C. Nos.33 of 2019 & connected cases 7 ## Prosecutor. 6. The counsel who appeared for the defacto complainant submitted that he had no instruction and he relinquished the vakalath and informed the party about the same three months back. 7. The learned Senior counsel submitted that, even if the entire allegations are accepted, no offence is attracted. The Senior counsel submitted that, to attract the offence under Section 342 IPC, the prosecution has to prove that there is wrongful confinement. Even if the entire allegations are accepted, there is no wrongful confinement as stated in Section 340 IPC. The Senior counsel also submitted that, even if the allegations are accepted, the offence under Sections 451 and 506(i) IPC are not attracted. 8. The learned Public Prosecutor submitted that this Court may not interfere with the prosecution Crl.M.C. Nos.33 of 2019 & connected cases 8 because the contentions raised by the petitioners are matter of evidence. 9. This Court considered the contentions of the petitioners and the Public Prosecutor. After hearing the counsel appearing for the petitioners, I think there is some force in the argument of the petitioners. Section 340 IPC define wrongful confinement. It will be better to extract Section 340 IPC: “Section 340:- Wrongful confinement Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.” Wrongful confinement means, restrain any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. 10. Even if the entire allegations are accepted, I am of the considered opinion that the offence is not Crl.M.C. Nos.33 of 2019 & connected cases 9 attracted. Admittedly, the petitioners and the defacto complainant are close relatives. There was some dispute regarding the business conducted by the parties. Even if the allegations are accepted, it can be seen that these are only small disputes that happened between the petitioners and the defacto complainant. That can not be treated as a wrongful confinement as defined in Section 340 IPC to attract the offence under Section 342 IPC. 11. The other offence is under Section 451 IPC. Section 451 IPC says about house trespass in order to commit offence punishable with imprisonment. In order to commit the offence punishable with imprisonment, the accused should commit house trespass. Even if the allegations in the final report are accepted, the intention of the petitioners is not to commit any offence. They want to discuss about a business deal. Moreover, there is no allegation in the Crl.M.C. Nos.33 of 2019 & connected cases 10 final report that the petitioners trespassed into the flat of the defacto complainant. As I mentioned earlier, the petitioners and the defacto complainant are close relatives. In such situation, I am of the considered opinion that, simply because a person entered into the house of his relative, that will not amount to a house trespass unless there is intention to commit an offence with imprisonment. Therefore, I am of the considered opinion that Section 451 IPC is also not attracted in this case. 12. What remains is Section 506 (i) IPC. The ingredients of Section 506 (i) IPC is considered by the Apex Court in **Manik Taneja and Another v. State of Karnatka and Another** [2015 KHC 4046]. The relevant portion of the same is extracted hereunder: “13. S.506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in S.503 IPC is as under: "503. Criminal Intimidation.-- Whoever threatens Crl.M.C. Nos.33 of 2019 & connected cases 11 another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." 14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. 15. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of Crl.M.C. Nos.33 of 2019 & connected cases 12 "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in S.503 IPC. ” 13. In the light of the above principle, I am of the considered opinion that, even if the entire allegations are accepted, the offence under Section 506 (i) IPC is not made out. 14. The upshot of the above discussion is that the continuation of the prosecution against the petitioners is an abuse of process of Court. Crl.M.C. Nos.33 of 2019 & connected cases 13 Therefore, these Criminal Miscellaneous Case are allowed. All further proceedings against the petitioners in C.C.No.1120/2015 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam arising from Crime No.1036 of 2015 of Kadavanthra Police Station are quashed. _Sd/-_ **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C. Nos.33 of 2019 & connected cases 14 ## **APPENDIX OF CRL.MC 3140/2016** ## **PETITIONER ANNEXURES** - **ANNEXURE A1: TRUE COPY OF THE FINAL REPORT IN CC NO.,1120/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF IST CLASS VILL, MARADU, ERNAKULAM.** - **ANNEXURE A2: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONERS BEFORE THE SUB INSPECTOR OF POLICE, KADAVANTHRA DATED 5.8.2015.** - **ANNEXURE A3: TRUE COPY OF FIR IN CRIME NO.1061/2015 OF THE KADAVANTHRA POLICE STATION.** - **ANNEXURE A4: TRUE COPY OF THE FIR IN CRIME NO.1036/2015 ON THE FILES OF THE KADAVANTHRA POLICE STATION.** - **ANNEXURE A(4)(A TRUE COPY OF THE COMPLAINT PROCEEDING ANNEXURE A4.** - **ANNEXURE A5: TRUE COPY OF THE COMPLAINT FILED BY THE IST PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, KADAVANTHRA POLICE STATION DATED 5.8.2015.** - **ANNEXURE A6: TRUE COPY OF THE FIR IN CRIME NO.1062/2015 ON THE FILES OF KADAVANTHRA POLICE STATION DATED 5.8.2015.** - **ANNEXURE A7: TRUE COPY OF THE REPORT OF THE ASSISTANT COMMISSIONER OF POLICE, DISTRICT CRIME BRANCH, KOCHI CITY DATED 5.10.2015.** Crl.M.C. Nos.33 of 2019 & connected cases 15 ## **APPENDIX OF CRL.MC 33/2019** ## **PETITIONER ANNEXURES** **ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT DATED 31/08/2015 ALONG WITH THE STATEMENT GIVEN BY THE 1ST RESPONDENT. ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT DATED 14/09/2015. ANNEXURE III TRUE COPY OF THE FIRST INFORMATION REPORT DATED 31/08/2015. ANNEXURE IV TRUE COPY OF THE FIRST INFORMATION REPORT DATED 05/08/2015.** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**