Jose George v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940** **Crl.MC.No.8170 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 239/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY** **CRIME NO.2261/2014 OF Chalakkudy Police Station , Thrissur** ## **PETITIONER/S/ACCUSED:** **JOSE GEORGE S/O. GEORGE, PANAKKAL HOUSE, PARIYARAM P.O., CHALAKKUDY, THRISSUR DISTRICT.** **BY ADV. SRI.MAHESH V.MENON** ## **RESPONDENT/S/STATE/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 MOHANDAS A.V DGM, JOHNS B1 WHEELERS (JOHNS HONDA), NORTH JUNCTION, CHALAKKUDY,THRISSUR DISTRICT - 680 307.** **R1-2 BY ADV. SRI.R.AZAD BABU R1 BY ADV. SRI.P.R.RAJA R1 BY PUBLIC PROSECUTOR, SMT. MAYA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.06.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8170 OF 2016** **2** ## **ORDER** The petition on hand is initiated by the accused in C.C.No.239 of 2015 of Judicial First Class Magistrate Court, Chalakudy, seeking to quash the final report which is appended to, as Annexure A3. 2. The petitioner is the accused in C.C.No.239/2015. The brief facts of the case are narrated as follows: The petitioner has purchased a “Honda Unicorn” motor bike from the 2[nd] respondent's shop on 18.02.2013. The delivery of the vehicle was taken from the Chalakudy branch of the 2[nd] respondent's shop. After sometime, he noticed some manufacturing defect in the vehicle and approached the 2[nd] respondent to rectify the same. The 2[nd] respondent was not ready and therefore, he approached the Consumer Disputes Redressal Forum, Thrissur seeking compensation. In the meantime, he had surrendered the vehicle with the 2[nd] **Crl.MC.No.8170 OF 2016** **3** respondent. The Consumer Disputes Redressal Forum, Thrissur had passed an order dated 03.06.2014 directing the 2[nd] respondent to repay the value of the vehicle alongwith compensation for the defect. Then the 2[nd] respondent filed a complaint before the District Police Chief, Rural (Thrissur), seeking police protection for himself and employees. The copy of the complaint is appended to the petition on hand as Annexure A1. The District Police Chief, Rural has forwarded the complaint filed by the 2[nd] respondent to the Circle Inspector of Police, following which a crime was registered (FIR No.2261/2014) for the offences punishable under Sections 447 and 506(1) of IPC. The certified copy of the FIR is appended to the petition on hand as Annexure A2. Investigation was pursued with and concluding the same, a final report was laid by the police before Judicial First Class Magistrate Court, Chalakudy. The final report was taken on **Crl.MC.No.8170 OF 2016** **4** file by the Magistrate and numbered it as C.C.No.239/2015, copy of which is appended to the petition on hand as Annexure A3. Accordingly, the petitioner herein stands chargesheeted for offences punishable under Sections 447 and 506(1) of IPC. Contending that the offences are unlikely to be attracted from the allegations, the petitioner has approached this Court seeking to quash the same. 3. Sri. Mahesh.V.Menon and Sri. Azad Babu representing the petitioner and the 2[nd] respondent respectively and the learned Public Prosecutor representing the State were heard. 4. Learned Counsel for the petitioner addressed this Court mainly on the following grounds: a) The complaint was lodged by the 2[nd] respondent before the police only to defend the alleged illegal acts of the petitioner and therefore **Crl.MC.No.8170 OF 2016** **5** the registration of the crime and the investigation that followed and culminated in the filing of the final report are improper. b) The petitioner has not actually committed the offences alleged against him in Annexure A3 and therefore, allegations made by the 2[nd] respondent are false and concocted ones, raised with a view to harass the petitioner. The police officer who had laid the final report failed to hold just and proper investigation into the allegations. c) Even if the allegations in the FIR (Annexure A2) and in the final report (Annexure A3) are taken for granted, the ingredients of the offences of criminal trespass and criminal intimidation [Sections 447 and 506(1)] will not **Crl.MC.No.8170 OF 2016** **6** be attracted and Annexure A3, needs to be quashed for the reason. 5. Sri.Azad Babu, the learned Counsel representing the 2[nd] respondent and the learned Public Prosecutor countered the contentions of the learned Counsel for the petitioner and submitted that from the materials available in the case diary and the allegations set forth in Annexure A3, the ingredients to constitute the offences for which the petitioner stands chargesheeted are attracted and interference is totally uncalled for. 6. Bearing the rival contentions in mind, this Court had a glance through the private complaint, which was lodged by the 2[nd] respondent before the District Police Chief, Rural and appended to this petition as Annexure A1. It is apposite to extract paragraphs 3 and 5 of Annexure A1, which **Crl.MC.No.8170 OF 2016** **7** incorporate the crux of the allegations, hereunder:- “3. On today morning around 10 am, the opposite party came to the show room of the complainant at Chalakudy, made an unruly scene therein affecting the business of the complainant and abused and threatened the employees working there without any provocation. He threatened that unless the amount ordered by the District Forum is paid, he will not permit the opening of the show room on Monday, the 29[th] . He said that he will bring the media and in their presence he will put tar upon the gates and will see that the business of the complainant is finished. 5. Under the circumstances, the complainant apprehends that the opposite party will carryout the threats and criminal intimidation he had openly proclaimed on coming Monday and the complainant will not be able to do business peacefully. The complainant fears that the life and security of their employees will be at risk and their assets destroyed at the hands of the opposite party and his supporters. Annexure A2, FIR was registered on the basis of Annexure A1. The relevant part of Annexure A2 is also extracted hereunder. **Crl.MC.No.8170 OF 2016** **8** “{]Xn, BhemXn¡mc³ sU]yq«n P\dð t\mÀ¯v amt\PcmbpÅ Nme¡pSn PwKvj\nepÅ “tPm¬kv tlm³U” tjmdqante¡v 27.09.2014 XobXn 10.00 aWntbmsS IpÁIcambn AXn{Ian¨v Ibdn ----bpw aÁpwsNbvX Imcyw . BhemXn¡mcsâ kväm^pIsf” `ojWns¸Sp¯pI 7. Based on Annexure A2, investigation was commenced, continued and culminated in the filing of Annexure A3, before the Judicial First Class Magistrate Court, Chalakudy. The summary of the charges is to the following effect:- “{]Xn, BhemXn¡mc³ sU]yq«n P\dð amt\PdmbpÅ Nme¡pSn t\mÀ¯v PwKvj\nepÅ tPm¬kv tlmï tjmdqante¡v 27.09.14 Xo¿Xn 10.00 aWntbmsS IpäIcambn AXn{Ian¨pIbdn BhemXn¡mcsâ kväm^pIsf `ojWns¸Sp--¯pIbpw aäpw sNbvXncn¡bmð {]Xn tað hIp¸pIÄ {]Imcw Ipäw sNbvXncn¡póp Fóv” 8. The learned Counsel for the petitioner has submitted that the intention to commit the offence is a **Crl.MC.No.8170 OF 2016** **9** fundamental ingredient to constitute the offences of criminal trespass. According to him, as per the allegations, petitioner entered into the premises of the show room with a view to get back the amount paid by him for purchasing the motorcycle. The vehicle delivered was a defective one. According to him, he had approached the 2[nd] respondent and demanded to return the money paid for the vehicle but, the respondent and other responsible officers were reluctant to repay the money. Accordingly, he had approached the Consumer Disputes Redressal Forum and obtained an order in his favour. 9. On the fateful day, he had approached the 2[nd] respondent with the order and after handing over the same, requested them to repay the money. According to the learned Counsel, the entry of the petitioner into the premises of the 2[nd] respondent was lawful, as he had no intention to commit any criminal offences then, and therefore, chargesheeting him **Crl.MC.No.8170 OF 2016** **10** for the offence under Section 447 is against law. 10. It is found from the allegations set forth in Annexure A1 that after entering into the premises and after attempting to hand over the copy of the order to the 2[nd] respondent and demanding the repayment, he had threatened the 2[nd] respondent with dire consequences, if the money is not repaid. According to the 2[nd] respondent the words uttered by the petitioner had caused an alarm in his mind that the business prospects of the company may be defeated. In the words of the 2[nd] respondent as expressed in Annexure A1, the words uttered had also alarmed that the petitioner may restrain the business from being pursued with in a peaceful manner. In the said circumstances, he had approached the District Police Chief, Thrissur (Rural) with Annexure A1 complaint raising the allegations. It is true that the prayer in Annexure A1 is to obtain police protection. But, since the **Crl.MC.No.8170 OF 2016** ## **11** allegations in Annexure A1 had prima facie disclosed the commission of the offences alleged, the District Police Chief, Thrissur (Rural) had forwarded the same to the Circle Inspector of Police, Chalakudy and got the FIR registered. The offences attracted are those punishable under Sections 447 and 506(1) IPC. There cannot be any dispute that one among the offences is a cognizable one and the latter is noncognizable one. When Annexure A1 complaint contains allegations disclosing the commission of a cognizable and a non-cognizable offence, there is nothing wrong in the police to register an FIR and to pursue with the investigation. Therefore, the contention with respect to that raised by the learned Counsel for the petitioner is devoid of merits and is repelled. 11. The learned Counsel has cited _**Ayyappanpillai & Others v. State of Kerala 2013 KHC 484 and Kunjan**_ **Crl.MC.No.8170 OF 2016** **12** _**Ammini v. State of Kerala 1967 KLT 621,**_ to rest his contentions that the petitioner had no intention to commit any criminal acts at the show room while entering there. 12. The decisions cited are referred to. In Ayyappan Pillai's case (supra), single bench of this Court has observed that mere unlawful entry in another man's house without intention to commit the offence but only with mere knowledge that such action would cause insult or annoyance to the inmates of the house will not constitute criminal trespass. The Court further held that criminal force or criminal intimidation, must have been there to attract the offence. 13. Citing the dictum, the learned Counsel for the petitioner has contended that in the absence of any materials to establish that the petitioners had intended to exert criminal force or cause criminal intimidation, the offence under Section 447 will not be attracted. In this connection, it is relevant to have a discussion on the factual matrix of that ## **Crl.MC.No.8170 OF 2016** **13** case. In the case cited (supra), the prosecution has chargesheeted 9 accused alleging commission of offences punishable under Sections 143, 147, 148, 447, 448 & 427 r/w 147 IPC. 14. After the trial, the accused were found not guilty of the offences punishable under Section 148 and 427 r/w 147 IPC and therefore the court acquitted the accused under Section 248(1) CrPC. The allegations of the prosecution in that case were that the accused formed unlawful assembly, committed riot and mischief after trespassing into the property. Since evidence was not upcoming to establish the offences under Sections 143, 148 and 427 that the Court found, criminal force or criminal intimidation were not established and therefore he was found not guilty for the offence under Section 447 IPC. 15. In Kunjan's case (supra) the context was that a **Crl.MC.No.8170 OF 2016** **14** pregnant lady had approached the person who made her pregnant with a demand to marry her. In the said case, the Magistrate found the trespass as a criminal one and accordingly, punished her for the offence. In the appeal taken up in challenge of the judgment, the appellate court held that mere unlawful entry into another man's house without intention to commit an offence there but only with knowledge that such action would result in insult or annoyance to the inmates of the house, will not constitute criminal trespass. 16. In the cases cited (supra) apart from criminal trespass, other offences chargesheeted were also not attracted and in the said circumstances that the Court held so. But, in the case on hand, the application is to quash Annexure A3, final report and apart from the materials in the Case Diary, nothing else are available. Going by the materials in the Case Diary and Annexure A3, sufficient and satisfactory allegations prima facie indicative of commission of the offences are available. The **Crl.MC.No.8170 OF 2016** **15** allegations are sufficient to establish that he had entered into the premises lawfully but committed something illegal by extending threat so as to cause an alarm in the mind of the defacto complainant, who is the 2[nd] respondent in the case. It is a matter of proof whether he had intention to commit the acts alleged in the latter part. Only when the parties were let to face trial, those could be established. It cannot be disputed that, the ingredients of the offences punishable under Section 447 and 506 (1) are prima facie attracted in the case on hand. In the said circumstances, the relief sought is declined. In the result, Criminal Miscellaneous Case Stands dismissed. Sd/- **MARY JOSEPH, JUDGE** ## **RK** **Crl.MC.No.8170 OF 2016** **16** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** |**ANNEXURE - A1**|**TRUE COPY OF COMPLAINT LODGED BY THE**| |---|---| ||**DEFACTO COMPLAINANT BEFORE THE DISTRICT**| ||**POLICE CHIEF THRISSUR RURAL 27.09.2011.**| |**ANNEXURE - A2**|**CERTIFIED COPY OF FIR IN CRIME NO.**| ||**2261/2014 OF CHALAKKUDY POLICE STATION**| ||**01.10.2014.**| |**ANNEXURE- A3**|**CERTIFIED COPY OF FINAL REPORT IN CRIME**| ||**NO. 2261/2014 OF CHALAKKUDY POLICE**| ||**STATION 07.1.2015.**| **RESPONDENT'S/S EXHIBITS:NIL**