Crl.Rev.Pet.No.1709 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935** **Crl.Rev.Pet.No. 1709 of 2013** **--------------------------------** ## **W.P.(C) NO.13236/2004 DATED 16/11/2004** **CRL.M.P.NO.7735/2010 & 10420/2007 IN CC 670/2006 of JUDICIAL FIRST CLASS MAGISTRATE,CHAVAKKAD** **REVISION PETITIONER(S)/6TH ACCUSED:** **-----------------------------------** **C.L.ANTO AGED 63 YEARS S/O.LAZAR, CHALACKAL HOUSE, MAMMIYOOR DESOM GURUVAYOOR VILLAGE, CHAVAKKAD TALUK, THRISSUR.** **BY ADVS.SRI.V.SETHUNATH** **COMPLAINANT(S)/RESPONDENTS :** **----------------------------** **1. SUB INSPECTOR CHAVAKKAD POLICE STATION.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU.V.STEPHEN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 1709 of 2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **A1 : ORDER IN CRL.M.P.NO.7735/2010 IN C.C.NO.670/2006 ON THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, CHAVAKKAD.** - **A2 : COPY OF THE ORDER IN CRL.M.P.NO.10420/2007 IN C.C.NO.670/2006 ON THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, CHAVAKKAD.** - **A3 : COPY OF THE ACCUSED COPY IN C.C.NO.670/2006 ON THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, CHAVAKKAD.** - **A4 : COPY OF THE ORDERS OF THE ADM, THRISSUR AND THIS HON'BLE COURT IN W.P.C NO.13236/2004 DATED 16/11/2004.** - **A5 : COPY OF THE LETTER WRITTEN BY THE ASSISTANT EXECUTIVE ENGINEER, TRANSMISSION CONSTRUCTION SUB DIVISION, KUNNAMKULAM.** - **A6 : COPIES OF THE ORDERS IN CRL.M.C.NO.1914/1998 DATED 6/7/2007, CRL.M.C.NO.1170/2000 DATED 24/06/2002 & CRL.M.C.NO.4122/2005 DATED 17/08/2009 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS** **: NIL** **//TRUE COPY//** **P.A TO JUDGE.** **Stu** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1709 of 2013** = = = = = = = = = = = = = = = Dated this the 2[nd] day of September, 2013 ## **O R D E R** The Revision petitioner is the 6[th] accused in C.C.No.670/2006 on the files of the Judicial First Class Magistrate's Court, Chavakkad. Now he stands charge sheeted along with the accused Nos.1 to 5 for the offences punishable under Secs.143, 147, 148, 120(b), 427 read with Sec.149 of the Indian Penal Code and Sec.3(2) of the Prevention of Damages to Public Properties Act, 1982. 2. The prosecution case is that on 08/11/2004 at 10.30 a.m, the accused Nos. 1 to 6 themselves constituted unlawful assembly in furtherance of their common object to commit rioting with armed weapon, they caused to collapse of electric post by removing earth beneath to the electric post installed by KSEB in the property of accused No.6 and as such the KSEB has sustained a loss to the tune of Rs.30,000/-. Thus, the accused Nos.1 to 6 have committed Crl.R.P.No.1709 of 2013 2 the above said alleged offences. 3. In the petition for discharge filed under Sec.239 of the Code of Criminal Procedure, it is alleged that at the time of occurrence, the petitioner was far away from the place of occurrence and he has sufficient documents to prove that at the time of occurrence he was at Delhi. Therefore, the prosecution is not sustainable against him. Another contention was that the Officials of Electricity Board illegally drawn 33 KV electric line through his property by violating the order of the Additional District Magistrate and caused huge damages to his property, which was obstructed by him and due to that enmity under the instigation of One Mr.Peethambaran and Mr.Stephen, Assistant Executive Engineers of Electricity Board, the Sub Inspector of Police, Chavakkad Police station, registered a false case under the instigation of the said Officials. In fact, he had filed a complaint against the Assistant Engineer Pethambaran and others on 07/11/2004 for illegal drawing Crl.R.P.No.1709 of 2013 **==> picture [7 x 10] intentionally omitted <==** of electric line through his property by violating the orders of the Additional District Magistrate and causing huge damages to him. But, the Sub Inspector of Police, Chavakkad suppressed his complaint and registered the above case against him under the instigation of the Electricity Officials. In short, the contention is that the allegations in the charge sheet are false vexatious and made with some ulterior motives. 4. The learned counsel for the Revision petitioner advanced arguments to fortify the above said contentions and submits that the order passed by the court below is illegal and unsustainable under law. According to the learned counsel, the court below has not considered the materials produced along with the final report to ascertain whether there are sufficient grounds to proceed against the revision petitioner. In view of the submission made at the Bar, the only question to be considered is whether there is any illegality or impropriety in the findings of the court Crl.R.P.No.1709 of 2013 **==> picture [7 x 9] intentionally omitted <==** below dismissing the petition under Sec.239 of the Cr.P.C. Put it differently, whether there are sufficient grounds to proceed with the prosecution against the revision petitioner. 5. Going by the impugned order, it could be seen that indisputably, a dispute is pending between the revision petitioner herein and Electricity Officials with respect to drawing of electric line through his property. According to the revision petitioner, on 07/11/2004, he has filed a complaint against the Electricity Officials for trespassing into his property and illegally drawn electric line through his property and the said complaint was suppressed by the Sub Inspector of Police, Chavakkad. 6. To substantiate the above contention, the revision petitioner had produced several documents before the court below. The court below found that in view of the decision in **State of Orissa v. Devendranath Pandhi** [2005(1) SCC 568], **Kurian v. State of Kerala** [2007(3) KLT 36] and Crl.R.P.No.1709 of 2013 5 **Shoraj Singh v. Ahlawat** [AIR 2013 SC 52], the trial court has no jurisdiction to consider the documents produced by the accused for considering the application filed under Sec.239, claiming discharge of prosecution. I am of the opinion that there is no illegality in the said finding as the court below is bound to follow the decision of the Apex Court. The second point is that he was not present at the place of occurrence at the time of the alleged commission of the offence and he was working at Delhi at that time. The court below rejected the said contention also on the finding that plea of alibi cannot be considered while considering an application under Sec. 239, claiming discharge. The settled legal position is that in the case of plea of alibi, the burden is on the person who raises the contention and that burden of proof can be discharged only through the process of trial. 7. More importantly, going by the impugned judgment, it could be seen that earlier the revision petitioner had filed Crl.M.P.No.10420/2007, in the very Crl.R.P.No.1709 of 2013 6 same case claiming discharge and the said petition was dismissed on merits. In the above context, the court below found that a second application for discharge is not maintainable under law. Going by the said order also, it could be seen that very same contentions were raised earlier by the very same petitioner and got rejected by the court below. I am of the opinion that the second petition under Section 239 on the same contentions, which got rejected earlier, is not maintainable and the said finding of the court below is just and proper. Thus, there is no illegality or impropriety in the impugned judgment under challenge. This revision petition is devoid of merits. Consequently, this revision petition is dismissed. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge.