Mohamed Yaseen and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935** ## **Crl.MC.No. 2034 of 2012 ()** **--------------------------CMP. NO.1935/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, TIRUR. CRIME NO. 324/2012 OF TIRUR POLICE STATION, MALAPPURAM DISTRCT.** **.......** ## **PETITIONERS/ACCUSED:** **-------------------------------------** **1. MOHAMED YASEEN, S/O. MOHAMED KUTTY, RESIDING AT MOULANA HOUSE, P.O. KUTTAYI, MALAPPUARAM DISTRICT.** **2. NADUKKANDI KUNHUKUTTI, S/O. MUHAMMEDKUTTY, P.O. KUTTAYI, MALAPPURAM DISTRICT.** **3. KATTIPARAMBIL REJI, S/O. VELAYUDHAN, CHENNARA AMSOM, PERUMTHIRUTHY DESOM, P.O. CHENNARA, MALAPPURAM DISTRICT.** **4. VALLIVALAPPIL SUBRAMANIAN, S/O. KARAPPAN, P.O. KUTTAYI, MALAPPURAM DISTRICT.** ## **5. AREEKKARA MANOJ,** **S/O. THAMI, CHENNARA AMSOM, PERUMTHIRUTHY, P.O. CHENNARA, MALAPPURAM DISTRICT.** ## **6. OTTAYIL AMEEN,** - **S/O. BAVA, P.O. KUTTAYI, MALAPPURAM DISTRICT.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE. ADVS. SRI.T.SIVADASAN, SRI.SAJU.S.A.** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** **-------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.** ## **Crl.MC.No. 2034 of 2012** ## **2. THE STATION HOUSE OFFICER,** ## **TIRUR POLICE STATION, TIRUR-1.** ## **3. RUKHIYA, D/O. KUNHIMOHAMMED,** **THOTTIYIL HOUSE, P.O. MEENADATHUR, THANALUR VIA, CHEMBRA, MALAPPURAM DISTRICT.** **R1 & R2 BY PUBLIC PROSECUTOR MR.REJI JOSEPH. R3 BY ADVS. SRI.K.RAMACHANDRAN, SMT.S.JAYASREE.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 2034 of 2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE 1 COPY OF THE PRIVATE COMPLAINT C.M.P. NO.1935/2012 FILED AGAINST THE PETITIONERS BY THE 3RD RESPONDENT BEFORE THE COURT OF JMFC-I, TIRUR. ANNEXURE 2 COPY OF THE FIR DATED 14/03/2012 IN CRIME NO.324/2012 OF TIRUR POLICE STATION. ANNEXURE 3 COPY OF THE INTERIM ORDER DATED 26/10/2010 IN I.A. NO.3832/2010 IN RFA NO.528/2005 PASSED BY THIS HON'BLE COURT. ANNEXURE 4 COPY OF THE RELEVANT PAGES OF THE PASSPORT NO.G 7230520 ISSUED ON 05/02/2008 TO THE 1ST PETITIONER.** ## **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.2034 of 2012 ---------------------------------------------Dated this the 25[th] day of February, 2014 ## **ORDER** Petitioners, who are accused in Crime No.324/2012 of Tirur Police Station, which was registered for the offences punishable U/s.448, 379, 341, 506(1) r/w 149 I.P.C, have approached this Court with this petition to quash the proceedings by invoking the inherent jurisdiction. 2. The 3[rd] respondent filed Annexure-I complaint before the Judicial First Class Magistrate Court-I, Tirur alleging that the petitioners formed themselves into an unlawful assembly, thereafter trespassed into her property, comprised in Re-Sy.No.13/8, 14/7, 14/8 of Perumthuruthy desom, Chennara amsom, Tirur Taluk, wrongfully restrained her and removed 3500 coconuts from her property and intimidated her. The above complaint was forwarded to Tirur Crl.M.C.No.2034/12 2 Police u/s.156(3) of Cr.P.C. for investigation. On the basis of the above complaint, Tirur Police registered the above crime. Aggrieved by that, the petitioners have approached this Court to quash the proceedings invoking the inherent jurisdiction. 3. The learned counsel appearing for the petitioners contended that there is a dispute between the petitioners and the 3[rd] respondent with regard to the above property. The above property is comprised of 5 acres belonging to the father of the 3[rd] respondent, who died on 28.5.1992. There was an agreement with the 1[st] petitioner, who is the nephew of the deceased Kunhi Mohammed and he is retaining the property as per sale agreement. 4. The learned counsel for the 3[rd] respondent contended that the sale agreement is false one and after the death of the 3[rd] respondent's father, she is taking usufructs from the property and a civil suit, O.S.No.22/1993 was filed by the 1[st] petitioner before Sub Crl.M.C.No.2034/12 3 Court, Tirur, which was dismissed by the judgment dated 31.3.2005. Aggrieved by that, R.F.a.No.528/2005 was preferred by the 1[st] petitioner, in which a status quo in relation to the property in question was passed by the appellate court. 5. The learned Public Prosecutor resisted the above contention and contended that the petitioners had trespassed into the property and committed the aforesaid offence and therefore, a prima facie case is made out against the petitioners. 6. The 3[rd] respondent's case in the trial court was that her father was in possession of 5 acres of land. After her father's death, she and other legal heirs are inheriting the property of her father. Now the 1[st] petitioner approached with a claim that during the life time of Kunhi Mohammed, there was a sale agreement between them and he paid sale consideration of Rs.2,50,000/- as advance to Kunhi Mohammed and therefore, he was Crl.M.C.No.2034/12 4 taking usufructs from the property during his life time itself. But, the 3[rd] respondent totally denied the above contention and contended that after the death of her father, she and other legal heirs are entitled to inherit the property and usufructs from the property. It is admitted by both parties that O.S.No.22/93, a civil suit pending before the trial court was dismissed and after that, in RFA filed by the 1[st] petitioner, a status quo order was passed by the appellate court. After dismissal of the above suit, this incident was occurred. It is true that the appeal is pending and the right of the 1[st] petitioner and 3[rd] respondent has not decided finally. In such a situation, I am of the view that it is a pure civil dispute and a fit case to invoke the inherent powers U/s. 482 Cr.P.C. In this context, relied decision of the Apex Court in _**State of Haryana** v_ . _**Bhajanlal**_ , [1992 SCC (Crl) 426] in which held as follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an Crl.M.C.No.2034/12 5 investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are 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 engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, 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 accuse with a view to spite him due to private and personal vengeance. Accepting the above legal verdict rendered by the Apex Court, I quash Annexure-1 complaint, Annexure-2 FIR and all proceedings in Crime No.324/2012 of Tirur Police Station. However, it is clarified that this will not affect the right of the 3[rd] respondent with regard to the disputed property and the petitioners cannot claim any further right, while quashing this criminal proceedings. The parties are Crl.M.C.No.2034/12 6 directed to maintain status quo ordered by the appellate court, till disposal of the appeal. The parties are at liberty to take all their contentions in the appellate court. Crl.M.C. is disposed of as above. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.2034/12 7