Madhusoodhanan Nair and Sreejith v. The State of Kerala and Lukose

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945`** ## **`CRL.MC NO. 505 OF 2020 AGAINST THE ORDER/JUDGMENT IN ST 1540/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA`** ## **`PETITIONER/S:`** ``` 1MADHUSOODHANANNAIR., AGED61YEARS S/O.RAGHAVKAIMAL, RAGHAVAMANDIRAM,PERINTHANOORKARA, OZHAVOORVILLAGE,UZHAVOORP.O. KOTTAYAMDISTRICT686643. 2SREEJITH, AGED39YEARS S/O.SASIDHARANNAIR, RAGHAVAMANDIRAM,PERINTHANOORKARA, OZHAVOORVILLAGE,UZHAVOORP.O. KOTTAYAMDISTRICT686643. BYADVS. P.CHANDRASEKHAR SRI.K.K.MOHAMEDRAVUF SRI.D.SREEKANTH SHRI.ANOOPKRISHNA ``` ## **`RESPONDENT/S:`** ``` 1THESTATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,682031. 2LUKOSE, AGED71YEARS S/O.KORA, ENNAMPLASERRIYILHOUSE,NEARMANGANA ``` ``` CRL.MCNO.505OF2020 ``` ``` 2 ``` ``` BRIDGE,PERUNTHANAM,UZHAVOOR, KURUVILANGADI,KOTTAYAM686643. ``` ``` BYADVS. SRI.MATHEWSKARIA SRI.K.J.JOSEMON SRI.JOYJOSEPH(MUNDACKAL) ``` ``` SRI.TRRENJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON04.07.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.505OF2020 ``` ``` 3 ``` ## **ORDER** The petitioners herein are the accused Nos. 1 and 2 in S.T. No. 1540/2019 on the files of the Judicial Magistrate of the First Class-I, Pala. In the aforesaid case, they are facing prosecution for having committed offences punishable under Sections 323, 294(b), 506(i), 447, 427 r/w Section 34 of the IPC. 2. Short facts are as under: The de facto complainant is the President of the Perunthanam Kuzhavayal Irrigation Committee. There is a dispute between the Committee and the accused with regard to the property wherein a pond is situated. The de facto complainant in his capacity as the President, submitted a request to the Taluk Surveyor to measure out the property. The complainant states that a report was submitted by the Surveyor reporting that the accused had no right over the pond. Owing to the enmity that the accused had towards the de facto complainant, it is alleged that on 8.2.2019 at about 11 am, the accused in furtherance of their common intention, is alleged to have trespassed into the property and assaulted the de facto complainant. It is further alleged that on 10.2.2019, the accused trespassed into the property again and committed ``` CRL.MCNO.505OF2020 ``` ``` 4 ``` mischief by removing the pipes and thereby causing loss to the tune of Rs.10,000/-. 3. Sri. P Chandrasekhar, the learned counsel appearing for the petitioners, submitted that a false case has been foisted against the petitioners. According to the learned counsel, there is a civil dispute pending between the parties and the report of the Commissioner in the said suit would disclose that the disputed pond is actually in the ownership of the 1st petitioner. It is submitted that no independent witnesses have been cited by the prosecution to prove the occurrence. 4. In response, it is submitted by the learned counsel appearing for the party respondent that specific overt acts have been alleged against the accused and that, being the case, this Court will not be justified in interfering with the criminal prosecution. According to the learned counsel, the records placed before this Court cannot be adverted to at this stage. 5. The learned Public Prosecutor has also opposed the submissions. Reliance is placed on the witness statement and other prosecution records, and it is argued that the materials collected clearly point to the involvement of the petitioners. ``` CRL.MCNO.505OF2020 ``` ``` 5 ``` 6. I have considered the submissions advanced and have gone through the materials made available. 7. It is well-settled by now that when a plea for quashing a prosecution in its nascent stages is made, this Court is entrusted with the responsibility of ascertaining whether the uncontested allegations outlined in the complaint or the charge constitute an offense. In exercise of jurisdiction under Section 482 of the Code, this Court is not justified in minutely scrutinizing the materials that are yet to be presented and evaluated in their proper context. Jurisdiction under the provision must be exercised sparingly, reserving it for exceptional circumstances, and should not be exercised to stifle a legitimate prosecution. At this juncture, only a prima facie case ought to be considered, in accordance with the legal principles enunciated by the Supreme Court in landmark cases such as **R.P. Kapur vs. State of Punjab** (AIR 1960 SC 866), **State of Haryana vs. Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar vs. PP Sharma** (1992 SCC (Cr.) 192), **Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haq and another** (2005 SCC (Cr.) 293), and more recently in **Neeharika Infrastructure Pvt Ltd v. State of Maharashtra and Others** [2021 SCC Online SC 315]. ``` CRL.MCNO.505OF2020 ``` ``` 6 ``` 8. Upon careful examination of the available materials and evaluation of the records in the factual backdrop of the present case, I am of the view that it would be premature to deduce that no offense has been established against the petitioners at this stage. Upon perusal of the entirety of the charge sheet, it becomes evident that specific allegations have been leveled against the petitioners, invoking specific offenses under the Indian Penal Code. The arguments put forth by the learned counsel concerning purported contradictions in the witnesses' statements, absence of serious injuries, and other related matters fall within the domain of consideration by the Trial Court at the appropriate stage. This Court will not be justified in assessing the appropriateness, veracity, or accuracy of the allegations mentioned in the charge at this juncture based on the CD statements; rather, these aspects are to be deliberated upon by the trial court at the opportune stage after evaluating the evidence adduced before court. It would be prudent for this court to abstain from expressing any opinion regarding the merits of the allegations at this stage so as to prevent any prejudice to either the prosecution or the accused. ``` CRL.MCNO.505OF2020 ``` ``` 7 ``` ## In the facts and circumstances, I find no reason to interfere, this petition will stand dismissed. **Sd/-** # **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.505OF2020 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 505/2020`** ## **`PETITIONER ANNEXURES`** ``` ANNEXUREA1TRUECOPYOFTHEFIRINCRIMENO.0238OF2019 OFKURAVILANGADPOLICESTATION. ANNEXUREA2TRUECOPYOFTHESTATEMENTOFTHE2ND RESPONDENT,DEFACTOCOMPLAINANTBASEDONWHICH ANNEXUREA1FIRWASREGISTERED. ANNEXUREA3SCENEMAHASSARDATED14.02.2019INCRIMENO. 0238/2019OFKURAVILANGADPOLICESTATION. ANNEXUREA4TRUECOPYOFTHECOMPLAINTWHICHHASBEEN NUMBEREDASSTNO.3612OF2019BEFORETHE JUDICIALFIRSTCLASSMAGISTRATECORUT-1,PALA ANNEXUREA5TRUECOPYOFTHECOMMISSIONREPORTANDSKETCH DATED06.06.2019INOS252OFREPORTANDSKETCH DATED06.06.2019INI252OF2018BEFORETHE MUNSIFFCOURT,PALA. ANNEXUREA6TRUECOPYOFTHEPASSPORTOFTHE1ST PETITIONER. ANNEXUREA7TRUECOPYOFTHEGREENCARDISSUEDBYUNITED STATESOFAMERICAINFAVOUROFTHE1ST PETITIONER. ANNEXUREA8ATRUECOPYOFTHEREGISTEREDGIFTDEEDDATED 10.05.2017. ANNEXUREA9CERTIFIEDCOPYOFTHEFINALREPORTDATED 02.03.2019INCRIMENO.238/2019OFTHE KURUVILANGADPOLICESTATION. ```