P. Gouri and others v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 ``` ``` CRL.MC NO. 4959 OF 2013 ``` ``` [AGAINST CRIME NO.40/2013 OF THE MANJERI POLICE STATION, ``` ## **`MALAPPURAM DISTRICT]`** ## **`PETITIONERS/ACCUSED:`** - **`1 P.GOURI AGED 61 YEARS`** - **`W/O.DR A P APPUKUNJAN , KOVILAKAM, P B NO 32, MANJERI676121, MALAPPURAM DIST`** - **`2 P.PARVATHI AGED 39 YEARS`** - **`D/O.DR.A.P.APPUKUNJAN, KOVILAKAM,P B NO 32, MANJERI, 676121, MALAPPURAM DIST`** - **`3 P SAJINI AGED 34 YEARS D/O.DR.A.P.APPUKUNJAN, KOVILAKAM, P B NO 32, MANJERI676121, MALAPPURAM DIST`** ``` BY ADVS. R.LAKSHMI NARAYAN R.RANJANIE ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA REP BY THE PUBLIC PROSECUTOR ,HIGH COURT OF KERALA, ERNAKULAM-31`** - **`2 K C NIRMALA AGED 65 YEARS`** - **`W/O.LATE SREEDHARAN MENON, R/A.KOVILAKAM, MANJERI P O, EEARANDU TALUK, MALAPPURAM DIST, PIN-676121`** - **`3 ADDL.R3-K. BALACHANDRAN AGED 45 YEARS, S/O LATE SREEDHARAN MENON, RESIDING AT KOVILAKAM, MANJERI AMSOM DESOM, ERANAD TALUK, MALAPPURAM DISTRICT`** ``` CRL.MC NO. 4959 OF 2013 ``` ``` 2 ``` ``` IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 17.02.2016 IN CRL.M.A.NO.1402/2016 IN CRL.M.C.NO.4959/2013. ``` ``` BY ADVS. ``` ``` M.K PUSHPALATHA - GOVERNMENT PLEADER SRI.K.I.MAYANKUTTY MATHER SRI.T.K.AJITH KUMAR SRI.K.I.MAYANKUTTY MATHER SRI.P.P.RAMACHANDRAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4959 OF 2013 ``` ``` 3 ``` ## BECHU KURIAN THOMAS, J. =========================== Crl.M.C.No.4959 of 2013 ============================ Dated this the 8[th] day of August, 2022 ## ORDER A dispute between immediate family members had snowballed into a criminal offence as well as a civil dispute. The civil dispute ended in a decree in favour of the petitioners, while the criminal case still remains. When the matter came up for admission in 2013, this Court interdicted the investigation into the crime. 2. Petitioners alleged that the criminal case has been launched without any basis and with an ulterior motive and is hence, an abuse of the process of Court. They seek to quash the proceedings in FIR No.40/2013 of Manjeri Police Station, Malappuram, invoking the inherent jurisdiction of this Court. 3. Before considering the contentions, a brief reference to facts may be of relevance. Petitioners are the legal heirs of one Dr.Appukunjan, being his wife and two daughters. Petitioners claim ``` CRL.MC NO. 4959 OF 2013 ``` ``` 4 ``` the right in a property obtained by them by virtue of a partition deed as well as through the purchase of a Jenmom right. Petitioners claim to have been in possession of the property all along. 4. 1[st] petitioner’s father, who was the owner of the property which is the subject matter of the dispute, had gifted the property to his children, who later executed a partition deed No.393/1984 of Manjeri S.R.O., partitioning the property amongst themselves. On and from the date of partition, 1[st] petitioner became the owner of the property alloted to her and the defacto complainant’s son became the owner of the adjacent property. Thus a common boundary separated the 1[st] petitioner’s property from that of the son of the defacto complainant. 5. O.S.No.24/2013 of the Sub Court, Manjeri was a suit for injunction. 1[st] petitioner was the plaintiff while the defendant was the son of the defacto complainant. The suit was decreed in favour of the 1[st] petitioner by judgment dated 11.06.2015, wherein it was found that the compound wall put up by the plaintiff was on the ``` CRL.MC NO. 4959 OF 2013 ``` ``` 5 ``` correct boundary separating the property of the defendant therein, the demolition of which, when apprehended, resulted in the aforementioned suit. The Court specifically found that the plaintiff is in absolute ownership and possession of the property which was identified by the Advocate Commissioner on the basis of his inspection. Thus the compound wall put up by the plaintiff has been found by the Civil Court to be in the correct boundary separating the property of the plaintiff with the defendant in O.S.No.24/2013 in the Sub Court, Manjeri. 6. As mentioned earlier, the plaintiff in the aforementioned suit is the first petitioner, while the defendant therein is the son of the defacto complainant, who is arrayed as the 3[rd] respondent here. A perusal of the decree and judgment of the Sub Court in O.S.No.24/2013 reveals that the first petitioner had not trespassed or committed any illegal act, at least till the filing of the suit. 7. On 14.01.2013, the defacto complainant, who is now no more, filed the complaint alleging that accused 1 to 3 restrained the defacto complainant and abused her while the 4[th] accused assaulted ``` CRL.MC NO. 4959 OF 2013 ``` ``` 6 ``` her on 11.01.2013. Petitioners are accused 1 to 3 in the aforesaid crime. 8. Shri. Lakshmi Narayanan, the learned counsel for the petitioners contended that the offences alleged are not at all made out for various reasons and that continuance of investigation based upon the allegations in the FIR is an abuse of the process of Court. It was further pointed out that the defacto complainant expired as early as in 2015 and that no purpose would be achieved by the continuance of the investigation, other than waste of time and resources. It was also contended that in view of the finality achieved by the judgment of the Civil Court in O.S.No.24/2013 of Sub Court, Manjeri, no useful purpose would be achieved, especially since the findings are binding even against the defacto complainant and her son. 9. I have heard the learned Public Prosecutor also, who opposed the contentions of the petitioners. 10. As mentioned in the initial paragraphs of this judgment, the Civil Court decree concluded that the 1[st] petitioner had put up ``` CRL.MC NO. 4959 OF 2013 ``` ``` 7 ``` her compound wall correctly and inside her own property. The complaint does not specify any particular assault or abuse as having been carried out or hurled by the petitioners. The overt acts are specifically alleged only as against the 4[th] accused, who is not a party in this petition. Petitioners 1 to 3 who are accused 1 to 3 have not admittedly assaulted or participated in the alleged assault of the defacto complainant. Further, the allegations are made only against four persons despite which Section 149 I.P.C. has been incorporated. 11. It is trite law that for applying Section 149, minimum requirement is the participation of five or more persons. Since even according to the defacto complainant there were only four persons, the offence under Section 149 cannot be attracted. Similarly, in the absence of any specific overt act that can be attributed to the petitioners, the offence under Section 323 also will not lie. The offence alleged under Section 447, which is the offence of criminal trespass as well as the offences under Sections 434 and 427 which are the offences of mischief and Section 341 I.P.C. are obviously ``` CRL.MC NO. 4959 OF 2013 ``` ``` 8 ``` incorporated for the purpose of giving the colour of a criminal act to a property dispute. Time and again Courts have held that when a dispute is essentially civil in nature, giving the cloak of a criminal act for a civil dispute for the purpose of creating a criminal dispute ought not to be entertained. 12. In a recent decision of the Supreme Court in Prof.Vijayasarathi R.K. and Another v. Sudha Sitharam and Another[(2019) 16 SCC 739] , the Supreme Court had held that in the exercise of the jurisdiction under Section 482 of the Code of Criminal Procedure, High Court can examine whether a matter which is essentially of a civil nature has been given the cloak of a criminal offence. In the decision in State of Haryana v. Bajanlal, [(1992) 1 SCC 335] , also the Supreme Court had held, while laying down the principles for quashing the criminal proceeding under Section 482 of the Cr.P.C that, when there is an inherent impossibility for a proceeding to end up in a conviction or when the criminal proceedings are initiated with malafide purposes, or is launched with ulterior interests, the Court, in exercise of the power ``` CRL.MC NO. 4959 OF 2013 ``` ``` 9 ``` under Section 482 can quash the proceedings. 13. On an appreciation of the documents produced in the case, as well as the nature of offences and the averments in the complaint, I am satisfied that the criminal case has been launched by the 3[rd] respondent to give the civil dispute between them the colour of a criminal case. Continuing the proceedings in FIR No.40/2013 of the Manjeri Police Station is therefore, an abuse of the process of Court. 14. Hence I quash Annexure-B FIR in Crime No.40/2013, in so far as it is against the petitioners. This Crl. M.C. is allowed as above. **Sd/-** BECHU KURIAN THOMAS JUDGE ssa/ ``` CRL.MC NO. 4959 OF 2013 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 4959/2013`** ## **`PETITIONERS’ EXHIBITS`** ``` ANNEX.A:-TRUE COPY OF THE COMPLAINT ``` ``` ANNEX B:-TRUE COPY OF THE FIR IN CRIME NO 40/2013 OF MANJERI POLICE STATION ``` ``` ANNEX C:-TRUE COPY OF THE PLAINT IN OS NO 24/2013 OF THE SUB COURT, MANJERI ``` ``` ANNEX D:-TRUE COPY OF THE INTERIM ORDER IN OS NO 24/2013 OF THE SUB COURT, MANJERI ``` ``` ANNEX E:-TRUE COPY OF THE REPORT DTD 2/2/2013 SUBMITTED BY ADVOCATE COMMISSIONER ``` ``` ANNEX F:-TRUE COPY OF THE COMPLAINT DTD 11/1/2013 ``` ``` ANNEX G:-TRUE COPY OF THE REPRESENTATION DTD 14/1/2013 ``` ``` ANNEX G1:-TRUE COPY OF THE ACKNOWLEDGMENT ``` ``` ANNEX H:-TRUE COPY OF THE COMPLAINT FILED BY THE IST PETITIONER ```