P. P. Raveendran v. State of Kerala and Balakrishnan

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 CRL.MC NO. 534 OF 2020 ST NO.1347/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM ## PETITIONER/2ND ACCUSED: P.P.RAVEENDRAN AGED 55 YEARS S/O.M.S.NAIR,ROHINI NIVAS,NEAR NETAJI NAGAR COLONY, KOTOOLI,KOZHIKODE-673016. BY ADVS. K.N.CHANDRABABU K.RAJESWARY ## RESPONDENTS/COMPLAINANT: 1 STATE OF KERALA (KUNNAMANGALAM POLICE STATION)REP.BY PUBLIC PROSECUTOR,HIGH COIURT OF KERALA,ERNAKULAM, KOCHI-682031. 2 BALAKRISHNAN, S/O.LATE BAPPU,KRISHNAKRIPA HOUSE, KRISHNAKRIPA,MOOLAMVELLIYIL,KOTTULLY P.O,CALICUT-673016. BY ADVS. R1 BY SRI. SUDHEER GOPALAKRISHNAN R2 BY ADV.K.M.FIROZ THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.11.2021, THE COURT ON 17.11.2021 PASSED THE FOLLOWING: CRL.MC No.534 of 2020 2 ## O R D E R The petitioner is the accused in S.T. No.1347/2019 on the file of the Judicial First Class Magistrate Court, Kunnamangalam. The aforesaid case was registered on the basis of Annexure A1 private complaint submitted by the 2[nd] respondent herein alleging offences under Sections 449 and 506 of the Indian Penal Code (IPC). The prayer sought for by the petitioner in this case is to quash the aforesaid complaint and all further proceedings pursuant thereto. 2. The allegations against the petitioner is as follows: The petitioner is constructing a new house in the property owned by him. The 2[nd] respondent herein is the owner of the property situated on the northern boundary of the petitioner’s property. The petitioner had approached some of the neighbours who was having property on the CRL.MC No.534 of 2020 3 southern side of this property for creating a pathway leading to his residence. However, they did not agree for the same. Thereafter, in order to create a pathway, the petitioner has continuously threatening the 2[nd] respondent. Accordingly, on 25.8.2018 at 5.30 p.m., the petitioner encroached into the property of the 2[nd] respondent and threatened him that unless the 2[nd] respondent removed the southern boundary of his property(on the northern side of the petitioner’s property), he will do away with the 2[nd] respondent and his son. Thereafter on 6.2.2019 at 9 a.m. also, the petitioner trespassed into the property of the 2[nd] respondent and threatened him that unless the compound wall is removed within two days, he will assault the 2[nd] respondent and his family and the compound wall will be demolished by using a J.C.B. On the basis of the said allegation that Annexure-A1 private complaint was submitted by the 2[nd] respondent for the offences punishable under Sections 449 and 506 of IPC. It is CRL.MC No.534 of 2020 4 understood that the Judicial First Class Magistrate Court, Kunnamanglam has taken cognizance of the said complaint for the offences punishable under Sections 447 and 506 of IPC. 3. Heard the learned counsel for the petitioner, the learned Public Prosecutor for the 1[st] respondent and the learned counsel for the 2[nd] respondent. 4. The learned counsel for the petitioner would contend that going by the contents of Annexure-A1 complaint, no case is made out for attracting the offences under Sections 449 and 506 of IPC. The basic dispute between the parties is civil in nature and the said dispute is pertaining to the right of a pathway. According to the petitioner, the 2[nd] respondent has encroached into the pathway illegally and in order to prevent the petitioner from initiating any proceedings against him for removing the same, a false complaint has been foisted against him. As the dispute is in civil nature, the entire proceedings is an abuse CRL.MC No.534 of 2020 5 of process of law and hence the entire proceedings pursuant to the said proceedings is to be quashed by invoking the powers under Section 482 of the Code of Criminal Procedure(Cr.PC). 5. Per contra, the learned counsel for the 2[nd] respondent would seriously dispute the above contentions. It was pointed out that, the subject matter of Annexure-A1 is with respect to an criminal trespass of the petitioner into his property and also the act of threatening him. Even though there are civil disputes between the parties, that is not a justification warranting interference of this Court in Annexure-A1 proceedings at this juncture as the contents of Annexure-A1 would clearly attract the offences mentioned therein. In such circumstances, the learned counsel for the 2[nd] respondent pressed for dismissal of Crl.M.C. The Learned Public prosecutor supported the contentions of the learned counsel for the 2[nd] respondent. 6. The basic question that arises is as to CRL.MC No.534 of 2020 6 whether the offences of Section 447 and 506 of IPC are attracted from the allegations contained in Annexure-A1 private complaint. However, it is learned that, the learned Magistrate has taken cognizance only under Section 447 of IPC and hence, the 1[st] contention raised by the petitioner with regard to lack of materials to attract the offence under Section 449 is no longer has any significance. 7. As regard to the allegations for constituting the offences under Section 447 and 506 of IPC, it is to be noted that in the aforesaid complaint it is specifically mentioned about the act allegedly committed by the petitioner by trespassing into the property of the 2[nd] respondent and threatening him with dire consequences. Since Annexure-A1 complaint specifically contains allegations of committing criminal trespass into the property of the 2[nd] respondent and also placing threats upon him, it cannot be concluded that no prima facie case is CRL.MC No.534 of 2020 7 made out. As directed by this Court, the petitioner has also produced the sworn statement of the 2[nd] respondent recorded by the Judicial First Class Magistrate Court. On perusal of the said document also, it is evident that the contents of Annexure-A1 complaint is reiterated therein also. The learned counsel for the petitioner would rely upon the judgment of the Hon’ble Supreme Court in Joshi v. State of Haryana [2003(2)KLT 1062(SC)] and a Full Bench decision of this Court in Moosa v. Sub Inspector of Police [2006(1)KLT 552(FB)]. The reliance placed on the said judgments was to highlight legal principles regarding the circumstances under which the power of this Court under Section 482 of Cr.PC can be invoked. By relying upon the principles laid down, it is argued that, if the ingredients of the offences are not made out, from the examination of the contents of the complaint in its entirety, the proceedings can be quashed by invoking powers under Section 482 of Cr.PC. However, in this case, CRL.MC No.534 of 2020 8 as mentioned above, on going through the contents of Annexure-A1 complaint and also the sworn statement of the 2[nd] respondent recorded by the learned Magistrate as part of inquiry under S.202 of Cr.P.C, it can be seen that the ingredients for attracting the offences under Section 447 as well as 506 are clearly mentioned therein. In such circumstances, I do not think at this juncture that any interference can be made in the aforesaid proceedings. 8. Another contention put forward by the learned counsel for the petitioner is that, the dispute is basically civil in nature and the intention of the 2[nd] respondent by submitting the aforesaid complaint is to get an undue advantage in the said proceedings. It was also pointed out that a civil case in connection with the said dispute is pending with the Munsiff Court, Calicut as O.S.No.85/2019 between the parties. It is true that there exists some civil dispute between the parties with regard to the right of a pathway. CRL.MC No.534 of 2020 9 However, the acts alleged in Annexure-A1, even though stems up from a civil dispute, cannot be treated as a civil dispute by itself, merely because of the same. If the allegations discloses a criminal offence, the same can be proceeded with. I have already found that the allegations in Annexure-A1 discloses a criminal offences punishable under Sections 447 and 506 of IPC. 9. On analysis of the totality of the facts and circumstances of the case, I am of the view that, considering the nature of the allegations contained in Annexure-A1 complaint, I do not think that this is a fit case where the powers of this Court under Section 482 of Cr.PC can be invoked at this stage. It is a well settled position of law that, the jurisdiction under Section 482 of Cr.PC has to be invoked very sparingly and on rare occasions. The contentions as to the sustainability of the allegations in Annexure-A1 are basically a question of fact which must be decided on evidence to be adduced in the trial. CRL.MC No.534 of 2020 10 There is no scope for appreciation of evidence in this proceeding. 10. In such circumstances, I am of the view that, this Crl.M.C. is devoid of any merits and, accordingly, it is dismissed. However, it is clarified that the dismissal of this Crl.M.C. will not preclude the petitioner from raising any contentions before the trial court and those contentions shall be considered by the trial court untrammeled by any of the observations contained in this order. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.534 of 2020 11 ## APPENDIX OF CRL.MC 534/2020 PETITIONER ANNEXURE ANNEXURE A1 A TRUE COPY OF THE PRIVATE COMPLAINT NUMBERED AS ST.1347/19 OF JUDICIAL FIRSTCLASS MAGISTRATE COURT,KUNNAMANGALAM ANNEXURE A2 A TRUE COPY OF THE WRIT PETITION NO.22497/2019 DATED 17/8/2019. ANNEXURE A3 A TRUE COPY OF THE PRIVATE COMPLAINT S.T.223/18 DATED 05/01/2017 ANNEXURE A4 A TRUE COPY OF THE PRIVATE COMPLAINT CMP NO.5893/18 DATED 15/12/18 BEFORE THE KUNNAMANGALAM JFCM ANNEXURE A5 TRUE COPY OF THE PLAINT IN O.S.NO.85/19 DATED 19/12/2019. ## //TRUE COPY// SD/- P.S. TO JUDGE