Johny and Others v. State of Kerala and T. C. Baby

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` FRIDAY, THE 28[TH] DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 CRL.MC NO. 4875 OF 2014 CRIME NO.837/2013 OF Kunnathunadu Police Station, Ernakulam AGAINST CMP 2323/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KOLENCHERRY ``` |**`PETITIONERS:`**|**`PETITIONERS:`**| |---|---| |**`1`**|**`JOHNY`**| ||**`AGED 57 YEARS,S/O. VARGHESE,`**| ||**`THEKKUMCHERIL HOUSE,`**| ||**`MAZHUVANNOOR VILLAGE,`**| ||**`VADAKKE MAZHUVANNOOR KARA,`**| ||**`ERNAKULAM DISTRICT.`**| |**`2`**|**`MARIYAKUTTY`**| ||**`AGED 50 YEARS,W/O. JOHNY,`**| ||**`THEKKUMCHERIL HOUSE,`**| ||**`MAZHUVANNOOR VILLAGE,`**| ||**`VADAKKE MAZHUVANNOOR KARA,`**| ||**`ERNAKULAM DISTRICT.`**| |**`3`**|**`SANTHOSH`**| ||**`AGED 35 YEARS,S/O. JOHNY,`**| ||**`THEKKUMCHERIL HOUSE,`**| ||**`MAZHUVANNOOR VILLAGE,`**| ||**`VADAKKE MAZHUVANNOOR KARA,`**| ||**`ERNAKULAM DISTRICT`**| ||**`NOW EMPLOYED IN ABROAD`**| ||**`REPRESENTED BY FATHER AS WELL AS POWER OF ATTORNEY`**| ||**`HOLDER SRI. JOHNY,`**| ||**`S/O. VARGHESE, AGED 57 YEARS,`**| ||**`THEKKUMCHERIL HOUSE,`**| ||**`MAZHUVANNOOR VILLAGE,`**| ||**`VADAKKE MAZHUVANNOOR KARA,`**| ||**`ERNAKULAM DISTRICT.`**| Crl.M.C. 4875/14 ## **-:2:-** |**`4`**|**`SATHYAN`**| |---|---| ||**`AGED 49 YEARS,S/O. NARAYANAN,`**| ||**`MALAYIL HOUSE,`**| ||**`VEMPILLY KARA, KUNNATHUNADU VILLAGE,`**| ||**`ERNAKULAM.`**| |**`5`**|**`GOPI`**| |---|---| ||**`AGED 54 YEARS, S/O. KUNJAPPAN,`**| ||**`KOLAKKATTIL HOUSE,`**| ||**`(NEAR PATTIMATTOM), VALAMBOOR,`**| ||**`ERNAKULAM DISTRICT.`**| |**`6`**|**`ELDHOSE @ ELDHO`**| |---|---| ||**`AGED 29 YEARS, S/O. JOSEPH,`**| ||**`NELLIMATTATHIL HOUSE,`**| ||**`(NEAR PATTIMATTOM NELLADU,`**| ||**`ERNAKULAM.`**| ||**`BY ADV.PAUL K.VARGHESE`**| ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY SUB INSPECTOR OF POLICE,`**| ||**`KUNNATHUNADU POLICE STATION,`**| ||**`THROUGH PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA,`**| ||**`ERNAKULAM-682031.`**| |**`2`**|**`T.C.BABY`**| ||**`AGED 63 YEARS`**| ||**`ADVOCATE, S/O. CHERIAN,`**| ||**`THEKKUMCHERIL HOUSE,`**| ||**`MAZHUVANNOOR VILLAGE,`**| ||**`VADAKKE MAZHUVANNOOR KARA,`**| ||**`NEAR PATTIMATTOM,`**| ||**`ERNAKULAM DISTRICT-682206.`**| ||**`BY ADVS.`**| ||**`SRI.SANGEETHARAJ, PUBLIC PROSECUTOR`**| ||**`SRI.S.ASHOK KUMAR.`**| ||**`SRI.S.ABHILASH VISHNU`**| ||**`SRI.GEO PAUL`**| Crl.M.C. 4875/14 **-:3:-** ``` SRI.C.R.PRAMOD SRI.SANU MATHEW ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.10.2022, THE COURT ON 28.10.2022 PASSED THE FOLLOWING: ``` **-:4:-** Crl.M.C. 4875/14 ## **BECHU KURIAN THOMAS, J. ----------------------------------Crl.M.C.No.4875 of 2014 ------------------------------------** Dated this the 28[th] day of October, 2022 ## **ORDER** A dispute between relatives, relating to a way, has transformed into civil and criminal cases. While they continue their fight before the civil courts for establishing their civil rights, petitioners who are the accused in the criminal case, seek to quash the F.I.R. registered against them, through this petition under Section 482 of Cr.P.C. 2. O.S.No.339/2013 was filed by the defacto complainant on 07.09.2013, claiming declaration of an easement by grant and also to remove the obstruction caused on a pathway, as evident from Annexure I. Three days later, he preferred a private complaint before the Judicial First Class Magistrate's Court, Kolenchery, alleging offences punishable under Sections 143, 144, 149, 447 and 427 of Indian Penal Code, 1860. The complaint alleged that accused formed themselves into an unlawful assembly and trespassed into the property of the defacto complainant and destroyed a way using an excavator and other equipment and thereby committed waste on the property. Crl.M.C. 4875/14 ## **-:5:-** 3. The learned Magistrate referred the matter to the police for investigation under Section 156(3) of the Cr.P.C. Pursuant to completion of the investigation, a final report was filed on 02.03.2014, arraying the petitioners as accused 1 to 6, which is produced as Annexure X. The case is numbered and pending as C.C. No.617/2014 on the files of the Judicial First Class Magistrate's Court, Kolenchery 4. Shri.Paul. K. Varghese, learned counsel for the petitioners, contended that Annexure X final report is ex-facie illegal and without any basis. He submitted that no offences as alleged are made out and therefore, the prosecution of the petitioners can only end in an acquittal ultimately, and in order to avoid wastage of judicial time of the Courts, it is essential to quash the proceedings. The learned counsel further submitted that the criminal proceeding is a cloak for compelling the petitioners to yield to the illegal demands of the defacto complainant and also that it is a malafide attempt. The learned counsel relied upon the decisions in **Mohd. Khalid Khan v. State of Uttar Pradesh and Another** [(2015) 15 SCC 679] **, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others** [(2015) 12 SCC 420] apart from decisions of this Court in **Achamma John v. Anupama Elizebath and Others** [2009 (3) KHC 746] and an unreported decision of this Court in **Biju K. Peter and Others v.** Crl.M.C. 4875/14 ## **-:6:-** **State of Kerala and Another** [2022 (2) KHC 262] in support of his contention. 5. Adv. Geo Paul and Adv. Jacob Pallath appearing on behalf of the 2[nd] respondent, opposed the petition and submitted that, merely because there are civil disputes between the parties, that by itself is not a ground for quashing the proceedings. It was further pointed out that from the complaint filed as Annexure IX, as well as the final report, it was evident that petitioners had committed acts of a criminal nature, coming within its purview of the offending provisions of Sections 447 and 427 apart from Sections 143, 144 and 149 IPC and therefore, merely because a civil suit is pending between the parties, the Court should not invoke its powers under Section 482 to quash the proceedings. The learned counsel also vehemently contended that while the civil suit was filed for establishing the title obtained by the defacto complainant, the criminal complaint was lodged against the criminal act of destroying the said property. It was also submitted that since the ingredients of the offences alleged are made out, the final report ought not to be quashed. Learned counsel also pointed out that decisions cited on behalf of the petitioners do not apply to the facts of the case. 6. I have considered the rival contentions. Crl.M.C. 4875/14 **-:7:-** 7. Complainant alleged that between 26.07.2013 and 18.08.2013, petitioners trespassed into the pathway and after committing waste over the boundary, used an excavator to fill the way with 3 feet of laterite. 8. In O.S.No.339/2013 filed before the Munsiff Court, Perumbavoor, the right of the defacto complainant over 'C' schedule (pathway) of item No.1 property is sought to be declared. 2[nd] respondent claims that he has acquired title by grant and has also sought for consequential injunctions. It is an admitted case that the temporary mandatory injunction claimed by the 2[nd] respondent, was refused by a detailed order produced as Annexure VIII. Challenge against Annexure VIII order preferred as C.M.A.No. 26/2013 before the Sub Court, Perumbavoor, was dismissed, against which the 2[nd] respondent had approached this Court in O.P.(C)No.1087/2015, which was also dismissed by judgment dated 27.06.2022. The claim of title put forth by the defacto complainant in O.S.No.339/2013 has not yet crystallised, nor acted upon by the Civil Court, even as a temporary measure. 9. In this context, it is pertinent to note that the 1st petitioner had obtained an injunction in I.A. No.2006/2013 in O.S.No.380/2013 before the Munsiff Court, Perumbavoor, against the defacto complainant from committing waste in the very same disputed **-:8:-** Crl.M.C. 4875/14 property. The said suit is still pending consideration and the injunction against committing waste also remains in force. 10. It is evident from an appreciation of the aforesaid orders of Civil Court that a contentious civil dispute is pending between the parties in respect of the same pathway involved in the present crime. If the title to the defacto complainant is not declared as claimed in the civil suit, necessarily the property will be deemed to be belonging to the petitioners. However, if the easement sought by the defacto complainant in the plaint is decreed, necessarily the title claimed will be deemed to have been vested with the defacto complainant, at least from the date claimed by the defacto complainant in the suit. The rights thus claimed by the defacto complainant remain inchoate now. In such circumstances, the criminal complaint initiated against the petitioners, based upon the said inchoate right cannot continue. 11. Apart from the above, it is seen from the pleadings in paragraph X of Annexure I plaint that the 2[nd] respondent as plaintiff has pleaded that both the plaintiff and the defendant has right and interest over the ‘C’ schedule pathway. If the plaintiff admits title of the petitioners over the ‘C’ schedule, the allegation of criminal trespass and other offences will not lie. There cannot be any criminal trespass over a property in which one has a co-ownership right. In this Crl.M.C. 4875/14 ## **-:9:-** view of the matter also, the criminal proceedings are baseless and is an abuse of the proceedings of the Court. 12. The decisions cited by the learned counsel in **Mohd. Khalid Khan v. State of Uttar Pradesh and Another** [(2015) 15 SCC 679] **, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others** [(2015) 12 SCC 420] _**,**_ apart from decisions of this Court in **Achamma John v. Anupama Elizebath and Others** [2009 (3) KHC 746] and **Biju K. Peter and Others v. State of Kerala and Another** [2022 (2) KHC 262] have all observed that, to be called upon to appear before a criminal court as an accused in a case is a serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court ought not to be made as a “weapon of harassment”. It is further stated that, a matter which is essentially of civil nature cannot be given the cloak of a criminal offence and if so, the proceedings are liable to be quashed. 13. A reading of the private complaint Annexure IX and even that of the final report in Annexure X reveals that the attempt of the defacto complainant is to convert the civil dispute between the parties into a criminal offence. Having regard to the nature of pleadings in O.S.No.339/2013 and its similarity with the allegations in the private complaint and the final report, I am of the view that the attempt of Crl.M.C. 4875/14 **-:10:-** the defacto complainant is essentially to convert the civil dispute into a criminal offence. 14. Therefore, the proceedings pursuant to Annexure X final report, filed in FIR No.837/2013 of Kunnathunadu Police Station, is an abuse of the process of the Court and is hence, liable to be quashed. 15. Accordingly, I quash Annexure X final report in FIR No.837/2013 of Kunnathunadu Police Station and all further proceedings in C.C. No.617/2014 on the files of the Judicial First Class Magistrate's Court, Kolenchery. This Crl.M.C. is allowed as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps **-:11:-** Crl.M.C. 4875/14 ## **`APPENDIX OF CRL.MC 4875/2014`** ## **`PETITIONER'S/S’ ANNEXURES`** ``` ANNEXURE I- A TRUE COPY OF THE PLAINT IN OS.NO. 339/2013 OF MUNSIFF COURT PERUMBAVOOR DATED 7-9-2013. ``` ``` ANNEXURE II- A TRUE COPY OF THE I.A.NO. 1833/13 IN O.S.NO. 339/2013 FILED BY THE 2ND RESPONDENT BEFORE THE MUNSIFF COURT PERUMBAVOOR DATED 5-9-2013. ``` ``` ANNEXURE III- A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS NO. 1 TO 3 IN OS 339/13 ON THE FILE OF MUNSIFF COURT PERUMBAVOOR DATED 29-9-2013. ``` ``` ANNEXURE IV- A TRUE COPY OF THE PLAINT IN OS NO. 380/2013 ON THE FILE OF MUNSIFF COURT PERUMBAVOOR DATED 17-10-2013. ``` ``` ANNEXURE V- A TRUE COPY OF THE COMMISSION REPORT AND SKETCH FILED BY THE ADVOCATE COMMISSIONER IN OS NO. 380/13 BEFORE MUNSIFF COURT PERUMBAVOOR DATED 4-10-2013. ``` ``` ANNEXURE VI- A TRUE PHOTOGRAPH OF THE 1ST PETITIONER'S PROPERTY AND RUBBER TREES ON THE EASTERN PORTION OF THE 1ST PETITIONER'S PROPERTY. ``` ``` ANNEXURE VII- A TRUE COPY OF THE ORDER IN IA. 2006/2013 IN OS NO. 380/2013 OF THE MUNSIFF COURT PERUMBAVOOR DATED 3-10-2013. ``` ``` ANNEXURE VIII- A TRUE COPY OF THE ORDER IN IA 1833/13 IN OS NO. 339/2013 OF THE MUNSIFF COURT PERUMBAVOOR DATED 5-11-2013. ``` ``` ANNEXURE IX- A TRUE COPY OF THE PRIVATE COMPLAINT AS CMP NO. 2323/2013 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT KOLENCHERY DATED 10-09-2013. ``` ``` ANNEXURE X- A TRUE COPY OF THE CHARGE IN CRIME NO. 837/13 OF KUNNATHUNADU POLICE STATION DATED 2-3-2014. ```