G. Ambika v. Devadas, Sathyadas, Haridas, Rajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933** **Crl.MC.No. 175 of 2011()** **------------------------** **OS.1202/1995 of I ADDL. MUNSIFF'S COURT, TRIVANDRUM CRL.RP.NO.14/04 IN CC.491/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM** **....................** ## **PETITIONER(S): REVISION PETITIONER/DEFACTO COMPLAINANT(CW1):** **-----------------------------------------------------------------------------------------------------------** **G.AMBIKA, D/O.LATE GOURIKUTTY AMMA, SANKAR BHAVAN-4, SANKAR COMPOUND, SASTHAMANGALAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.GOPALAKRISHNAN NAIR, SRI.M.SREEKUMAR.** **RESPONDENT(S): REVISION COUNTER PETITIONERS/ ACCUSED 1 TO 4 & STATE:** ## **---------------------------------------------------------** **1. DEVADAS, S/O.RAO BAHADUR KUNJIKRISHNA PILLAI, DAS LAND, TC.9/1759,SANKAR LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM-695 010.** **2. SATHYADAS, S/O.RAO BAHADUR KUNJIKRISHNA PILLAI, AROMAVEEDU, TC.9/1756, SANKAR LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM-695 010.** **3. HARIDAS, S/O.DEVADAS, TC.9/1759, SANKAR LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM-695 010.** **4. RAJAN, S/O.BHASKARA PILLAI, AROMA VEEDU, TC.9/1756, SANKAR LANE, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM-695 010.** **5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R5 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No.175 of 2011 ==================================== Dated this the 29[th] day of March, 2011** ## **O R D E R** Annexure-IX, judgment in C.C. No.491 of 1998 of the court of learned Judicial First Class Magistrate-III, Thiruvananthapuram and Annexure-X, order passed by the learned Additional Sessions Judge-I, Thiruvananthapuram in Crl. R.P.No.14 of 2004 confirming the said judgment are under challenge in this proceeding under Section 482 of the Code of Criminal Procedure (for short, “the Code”). According to the petitioner on 26.02.1998 at about 8.30 p.m respondents 1 to 4 criminally trespassed into her property and demolished a portion of the compound wall on the western side and thereby committed offence under Sections 451 and 427 read with Section 34 of the Indian Penal Code. The Museum police registered Crime No.84 of 1998 alleging that respondents 1 to 4 committed the offence as alleged. Prosecution examined P.Ws.1 to 7 and marked Exts.P1 to P4. Respondents 1 to 4 examined D.W1 and marked Exts.D1 to D4. Learned Magistrate though, respondents 1 to 4 disputed found in favour of alleged demolition of a portion of the compound wall on the relevant day and time but **CRL.M.C. No.175 of 2011** ## -: 2 :- referring to the documents produced by respondents 1 to 4 found that there is a bona fide dispute regarding right of way claimed by respondents 1 to 4 to gain access to their property through the demolished portion of the compound wall and found that in the circumstances offence of trespass and mischief are not made out. Accordingly respondents 1 to 4 were acquitted. That view was confirmed by the learned Additional Sessions Judge as per Annexure-X, order. Learned counsel for petitioner contends that courts below were not correct in referring to the judgment of the civil court (Ext.D3) and enter finding. Learned counsel placed reliance on the decision of the Supreme Court in ## **K.G.Premshanker v. Inspector of Police and** **Another** ([2002] 8 SCC 87). It is contended by learned counsel that Annexure-VIII (page 86 of the Paper Book) would show that property which petitioner got in partition is well bounded by compound wall and hence contention of respondents 1 to 4 that they have a right of way cannot be accepted and at any rate that claim cannot justify demolition of a portion of the compound wall. 2. In paragraph 12 of the judgment learned Magistrate found repelling contentions of respondents 1 to 4 that the act of trespass and demolition did occur. But in paragraph 13, learned **CRL.M.C. No.175 of 2011** ## -: 3 :- Magistrate proceeded to consider the claim of respondents 1 to 4 for right of access through the disputed way and demolished portion of the compound wall. Learned Magistrate referred to the civil suit instituted by petitioner against respondents 1 to 4 for injunction and other reliefs which was dismissed by the civil court a few days before the alleged incident. Learned Magistrate also referred to other documents produced by respondents 1 to 4 which would show that there is a bona fide claim of right of way though the public pathway and demolished portion of the compound wall. Evidence of Investigating Officer is that intention of respondents 1 to 4 (by demolishing a portion of the compound wall) was to create a way. Accordingly the case was disposed of holding that there was no criminal intention on the part of respondents 1 to 4 in demolishing a portion of the compound wall on the west in exercise of their right to use the way and gain access to their property. Holding so respondents 1 to 4 were found not guilty and were acquitted. Learned Additional Sessions Judge confirmed the same. 3. In the decision relied on by petitioner it is held that decision of the civil court is not binding on the criminal court. In fact later decision on the point also say that except for Section **CRL.M.C. No.175 of 2011** ## -: 4 :- 43 of the Indian Evidence Act judgment even inter partis of a civil court is not binding on the criminal court and vice versa. Hence it is not possible to go into the reasoning of the civil court in holding that petitioner is not entitled to get decree for injunction. But the ultimate result in the suit could be ascertained from Ext.D3 (Annexure-V), judgment that the suit filed by petitioner against the first respondent for a decree for prohibitory injunction against demolishing the compound wall was dismissed whatever be the reason thereof. It has come in evidence from Exts.D2 to D4 that there was a litigation pending between petitioner and the first respondent concerning the very same compound wall where the first respondent had asserted right of way through the demolished portion of the compound wall. 4. Now the question is whether in the circumstances it could be said that offence of trespass and mischief is made out. 5. Section 441 of the IPC defines criminal trespass and states “whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate or insult or annoy any person in possession of such property” does criminal trespass. Mischief is defined in Sec.425 of the IPC and states that “whoever with intent to cause or knowing that he is ## **CRL.M.C. No.175 of 2011** ## -: 5 :- likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits mischief”. So far as both the offences are concerned, intention plays a vital role. ## 6. In **Varghese v. Annamma Mariamma &** **Others** (1967 KLT 497) this Court discussed the criminal intent behind Sec.441 of the IPC and stated that if an act is committed with the intent specified in the section defining the offence, it is normally immaterial that the act is accompanied by other intentions also. But entry upon land under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. In order to establish that entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry. It is also held that it is not sufficient to show merely that the natural consequence of entry was likely to be annoyance, intimidation or insult and that this likely consequence was known **CRL.M.C. No.175 of 2011** -: 6 :- to the persons entering. The question to be asked and answered is whether the accused entered the property with the dominant intention to intimidate, insult or annoy. 7. In the light of the said decision (supra) I shall look into the evidence on record. I stated that respondents 1 to 4 asserted with consistency that way on the west of the compound wall is a public way over which they have a right of access and according to them it was for gaining access to their property that a portion of the compound wall was demolished. This is made clear by the Investigating Officer in his evidence. Investigating Officer stated that the intention of respondents 1 to 4 demolishing a portion of the compound wall was to make entry to their property from the public road. In the circumstances it is relevant to note the civil court judgment dismissing the suit for injunction filed by petitioner. Learned counsel submits that petitioner took up the matter in appeal which also was dismissed directing petitioner to seek for a declaration of her title and other appropriate relief and a subsequent suit for such relief is pending. That indicates that the appellate court also was not inclined to grant relief prayed for by petitioner. Thus materials on record are consistent that intention of respondents 1 to 4 in demolishing a portion of the ## **CRL.M.C. No.175 of 2011** **==> picture [41 x 9] intentionally omitted <==** compound wall was to make access to their property. AnnexureX, order of the revisional court states that according to respondents 1 to 4, property of petitioner did not extend upto the compound wall which indicated that petitioner allegedly constructed the compound wall even beyond the property belonging to her. I do not find anything illegal in the view taken by the courts below so that this Court is required to interfere under Section 482 of the Code as if finding entered by the courts below are perverse. I find no reason to interfere. Criminal Miscellaneous Case fails. It is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv