K.I.KOYA v. Union Territory of Lakshadweep and Cheriyan Koya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 19[TH] DAY OF MAY 2021 / 29TH VAISAKHA, 1943** ## **CRL.MC NO. 7050 OF 2016** ## **PETITIONER/SOLE ACCUSED IN CRIME NO.1/2016 OF KALPENI POLICE STATION** 0 K.I.KOYA AGED 59 YEARS, S/O. P.P.SAYED MOHAMMED KOYA, KAKKAILAM HOUSE, KALPENI ISLAND, UNION TERRITORY OF LAKSHADWEEP-682 557. BY ADVS. SRI.G.P.SHINOD SHRI.AJIT G ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G. ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT** 1 UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 CHERIYAN KOYA AGED 63 YEARS, S/O. SAYED SHAIKOYA, CHERIYAN HOUSE, KALPENI ISLAND, UNION TERRITORY OF LAKSHADWEEP-682 557. BY ADVS. SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SRI.AHAMED FAZIL SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 7.4.2021, THE COURT ON 19.05.2021 DELIVERED THE FOLLOWING: Crl.M.C.7050/2016 2 ## **ORDER** ## **Dated : 19[th] May, 2021** 1. This Crl.M.C has been filed to quash the FIR in Crime No.1/2016 of Kalpeni police Station, Union Territory of Lakshadweep. 2. Crime No.1/2016 was registered against the petitioner under Sec 447, 427, 352 IPC upon a complaint filed by the 2[nd] respondent/the de facto complainant. Petitioner alleged to have trespassed into the property of 2[nd] respondent/de facto complainant(in short 2[nd] respondent) and destroyed papaya plants and other vegetation planted by the tenant who is the Circle Inspector of Kalpeni Police Station. According to the petitioner, he is a co-owner of the property as per Annexure-C complaint filed by the 2[nd] respondent and hence the entire proceedings initiated against him is an abuse of process of law and is not sustainable and hence is liable to be quashed. 3. Notice was issued to the respondents. 1[St] respondent appeared through the learned Standing Counsel. Adv. K.M.Firoz appeared on behalf of 2[nd] respondent. Both sides were heard. 4. The learned counsel for the petitioner would contend that it is Crl.M.C.7050/2016 3 admitted by the 2[nd] respondent who is none other than his brother in law that the property where the mischief alleged to have committed is the tharawad property of his wife and hence he is the co-owner of the property and no partition has been effected in the family and hence nobody can claim any exclusive right over any piece of property. It is also his contention that the 2[nd] respondent has no right whatsoever in the property. Papaya plants were planted by him and he has every right to enter the premises being the co-owner to enjoy the property. Petitioner also alleged to have sent Annexure-B notice dated 22.8.2015 to Mr.Najumudheen, the Circle Inspector, Kalpeni seeking to vacate the house since there is title dispute with respect to the property. 5. The learned counsel for the 2[nd] respondent on the other hand would vehemently contend about the criminal trespass and mischief committed by the petitioner and according to him quashing of Annexure-C FIR will cause great prejudice to the 2[nd] respondent. 6. The main argument of the learned counsel for the petitioner is Crl.M.C.7050/2016 4 that he being a co-owner, no offence under Sec.447 and 427 would be attracted against him since he has every right over every inch of co-ownership property. The fact that the property is the tharawad property of the wife of the second respondent is rather admitted in Annexure-C complaint also. So the question that emerges is whether the offence under Secs 447, 427 would be attracted against the petitioner. 7. Petitioner has got a case that he is the Karanavar of the family and property is being managed by him. Anyway at this stage this Court is not expected to find whether the petitioner is the Karanavar of the Tharawad or not. But it is admitted in Annexure-C complaint that the house which is let out to the Circle Inspector is situated in the Tharawad property of the wife of the 2[nd] respondent. There is no reference in the complaint about any partition of the Tharawad property and construction of the house in the separately alloted share of the wife of the complainant. So prima facie contention of the petitioner that he is a co-owner of the said property is seems to be acceptable. 8. The learned counsel for the petitioner drew my attention to Crl.M.C.7050/2016 5 **Puthiyapura Sheik Koya Thangal and Another v. P.P.Koyammakoya and Others (2012 (3) KHC 192 )** to support his contention regarding the law of inheritance in Lakshadweep Islands and the right of Karanavar of the property etc. But at present there is no convincing material to find that petitioner is the Karanavar of the Tharawad or that the property is being managed by him. Whether the petitioner is the Karanavar or the Manager of the property is also not the concern of this Court in this proceedings as stated above. But the fact remains that admittedly by the 2[nd] respondent the property in question is the Tharawad property of his wife. What is the right of the wife of 2[nd] respondent is to be determined by the appropriate Forum. However, **Puthiyapura Sheik Koya Thangal** referred above, would make it clear that in Lakshadweep Islands ancestral property (Velliazhcha – Friday property) can be partitioned only with the consent of all members of the Tharawad. In Kalpeni, division of properties is between branches or thavazhi of the family. Under Muslim law followed in the Islands, son is eligible for two shares in the Crl.M.C.7050/2016 6 property, while daughter gets only one share. 9. In the present case when the 2[nd] respondent specifically admitted in Ext.C1 complaint that the house has been constructed by him in the Tharawad property of his wife and the petitioner committed criminal trespass and mischief in the property, the primary question would be whether the entry of the petitioner to the ancestral property can be classified as a trespass. He being a joint owner to that property which according to him is undivided, his right of entry in every inch of land is explicit. In other words his entry in the Tharawad property of the wife of 2[nd] respondent will not prima facie amount to a criminal trespass. 10. The learned counsel for the petitioner drew my attention to Kochkunju Nair v. Koshy Alexander and Ors [MANU/SC/0203/1999 : AIR 1999 SC 2272] wherein it has been held that co-ownership land can be taken into account to determine whether a person is entitled to claim the right of Kudikidappu under the provision of the Kerala Land Reforms Act, 1963. Crl.M.C.7050/2016 7 11. **Swaran Singh v. Sr. Superintendent of Police, Hoshiarpur [(1999) 3 RCR (Crl.)707]** was relied upon to contend that every co-sharer is entitled to an interest in every inch of land. That was a case in which a petition under S.482 Cr.P.C. was filed to direct the police to register a case against the co-sharers in the land for committing trespass and theft of crop. It is held that if the petitioner therein was in exclusive possession of the property it is open to him to file a suit for injunction and protect his possession or he may file a suit for partition of the property. Even if it is assumed that one of the respondents cut the crop, they have not committed the offence of theft. 12. Coming to the fact situation of this case, the allegation in Ext.C1 complaint by the 2[nd] respondent is about the destruction of papaya saplings and tapioca saplings which were planted by his tenant in the tenanted premises. Loss sustained by him due to the alleged destruction of papaya saplings or tapioca saplings is not specified. The number of saplings alleged to have been destructed is also not stated. A vague allegation of destruction Crl.M.C.7050/2016 8 of papaya saplings and tapioca saplings are made in the complaint. Admittedly the petitioner is none other than the brother-in-law of the 2[nd] respondent. According to the petitioner he has already issued Annexure B notice dated 22.08.2015 to the alleged tenant of the 2[nd] respondent to vacate from the house since the property and the house occupied by him is a coownership property and there is title dispute among the sharers. Though this Court is not expected to look into the documents produced by the petitioner at this stage to quash Annexure C FIR, the allegation in Ext.C3 complaint itself describes that the house let out by the 2[nd] respondent has been constructed in the Tharawad property of his wife. So the right of the petitioner and the wife of the 2[nd] respondent is yet to be determined in appropriate proceedings. If at all the wife of the defacto complainant has any exclusive possession over the house and appurtenant land his remedy is to file a suit to protect his possession or to file a suit for partition of the property. So also trivial nature of allegation in the complaint prima facie probabilise the case of the petitioner regarding the civil dispute Crl.M.C.7050/2016 9 pending between the parties. As a short cut to pressurize the parties, the criminal law cannot be permitted to set in motion. It is relevant in the context to place reliance on State of Haryana v. Bhajan Lal [1992 Suppl.(1) SCC 335] wherein the Apex Court set out the categories of cases in which the inherent power u/s.482 Cr.P.C can be exercised. Para 102 reads thus: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or made out a case against the Accused. (2) Where the allegations in the first information report and other materials, if any accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are Crl.M.C.7050/2016 10 so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused. (6) Where there is an express legal bar en grafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge. Present case falls under 1[st] , 3[rd] , 5[th] and 7[th] category set out above. 13. The learned counsel for the petitioner placed reliance on Anand Kumar Mohatta & Ors. v. State (Govt. of NCT of Delhi) Department of Home and Ors [MANU/SC/1281/2018]. In para No.28 of the above decision State of Karanataka v. L. Muniswamy and Ors. [1977 (2) SCC 699] has been quoted which reads thus: “7. ….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the Crl.M.C.7050/2016 11 conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice ….” 15. Hon'ble Supreme Court in a recent verdict in **Krishna Lal Chawla and Ors. v. State of U.P. & Anr. [2021 (2) KHC S.N.22 page 72]** though in a proceeding initiated against issuance of process against an accused in a case instituted on private complaint has dealt with the role of lower judiciary in preventing abuse of process. The Hon'ble Supreme Court also observed that a significant factor in surge in backlog of cases is as a result of vast mass of frivolous litigations. It is also observed that curtailing vexatious litigation is a crucial step towards a more effective justice delivery system. 16. Discussions made above would lead to a conclusion that Crl.M.C.7050/2016 12 continuation of criminal proceedings based on Annexure C FIR would be an abuse of process of law. It has to be curbed at the initial stage itself in order to curtail vexatious litigations. 17. In the result Crl.M.C allowed and Annexure-C FIR No.1/2016 in crime No.1/2016 of Kalpeni Police Station, Union Territory of Lakshadweep is set aside. Sd/- M.R.ANITHA, Judge Mrcs/Shg Crl.M.C.7050/2016 13 ## **APPENDIX** ANNEXURE ANNEXURE A A COPY OF ROUGH PATTA NO.774 DATED 12.6.1989 ISSUED BY THE ASSISTANT SETTLEMENT OFFICER, KALPENI ISLAND. ANNEXURE B A COPY OF THE NOTICE ISSUED BY THE PETITIONER TO MR.NAJUMUDHEEN DATED 22.8.2015. ANNEXURE C A CERTIFIED COPY OF FIR NO.1 OF 2016 OF THE KALPENI POLICE STATION, DATED 8.4.2016. ANNEXURE D A COPY OF THE TREATMENT CARD ISSUED BY PHC KALPENI DATED 10.4.2016. ANNEXURE E A COPY OF THE COMPLAINT BY THE PETITIONER TO THE SUPERINTENDENT OF POLICE, KAVARATTI, DATED 20.4.2016.