PRADEEP THAMBAN v. STATE OF KERALA AND VARGHESE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936** ## **Crl.MC.No. 2780 of 2012** **----------------------------------** **AGAINST ORDER PASSED BY SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA UNDER SECTION 145 OF THE CODE OF CRIMINAL PROCEDURE DATED 03.08.2012 IN PROCEEDINGS A6-5640/12** **------------** **PETITIONER/B-PARTY:** **---------------------------------** **PRADEEP THAMBAN, SECRETARY, KSHETHRA SAMRAKSHANA SAMITHY, NEDUNGAPRA SAKHA, S/O.THAMBAN, KARATTUKUDY HOUSE, NEDUNGAPRA VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** **RESPONDENTS/STATE/A-PARTY:** **------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY SUB INSPECTOR OF POLICE, KURUPPAMPADY POLICE STATION, KURUPPAMPADY P.O., ERNAKULAM DISTRICT, PIN-683 545.REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. VARGHESE,** **S/O.OUSEPH, PUNNERPPILLY HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683 545.** **R1 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH R2 BY ADVS. SRI.P.BENJAMIN PAUL SRI.SAJI VARGHESE KAKKATTUMATTATHIL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 2780 of 2012** ## **----------------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' ANNEXURES:** - **ANNEXURE A1: TRUE COPY OF THE ORDER PASSED BY THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA DATED 03.08.2012.** **ANNEXURE A2: TRUE COPY OF THE IRREVOCABLE POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE PETITIONER & OTHERS DATED 26.03.2003.** - **ANNEXURE A3: TRUE COPY OF THE JUDGMENT IN O.S.NO.231/2007 PASSED BY THE MUNSIFF COURT, PERUMBAVOOR, DATED 30.11.2009.** - **ANNEXURE A4: TRUE COPY OF THE JUDGMENT IN A.S.NO.2/2010 PASSED BY THE SUB COURT, PERUMBAVOOR, DATED 14.11.2011.** - **ANNEXURE A5: TRUE COPY OF THE JUDGMENT IN R.F.A.NO.3/2012 PASSED BY THIS HONOURABLE COURT DATED 22.06.2012.** - **ANNEXURE A6: TRUE COPY OF PLAINT IN O.S.NO.199/2012 ON THE FILE MUNSIFF COURT, PERUMBAVOOR.** - **ANNEXURE A7: TRUE COPY OF THE ORDER IN I.A.NO.1250/2012 IN O.S.NO.199/2012 PASSED BY THE MUNSIFF COURT, PERUMBAVOOR DATED 30.06.2012.** - **ANNEXURE A8: TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.199/2012 ON THE FILE PASSED BY THE MUNSIFF COURT, PERUMBAVOOR DATED 06.07.2012.** - **ANNEXURE A9: TRUE COPY OF THE PETITION IN W.P.(C)NO. 16731/2012 ON THE FILE OF THIS HONOURABLE COURT DATED 16.07.2012.** - **ANNEXURE A10: TRUE COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT IN W.P.(C)NO.16731/2012 DATED 28.07.2012.** ## **RESPONDENT(S)' ANNEXURES:** **ANNEXURE R2(A): TRUE COPY OF JUDGMENT IN W.P.(C)NO.16731/2012 DATED 10.08.2012.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## P.D.RAJAN, J ......................................... Crl.M.C.No.2780 of 2012 ......................................... Dated 31[st ] March, 2014 ## ORDER This petition is filed under Section 482 Cr.P.C to quash Annexure A1 order passed by the Sub Divisional Magistrate, Muvattupuzha under Section 145 Cr.P.C. Petitioner is the Secretary, Kshethra Samrakshana Samithy, Nedungapra sakha, Perumbavoor representing the Samithy. The second respondent, the neighbour of the disputed property, is claiming as owner of the property. The above order was passed by the Sub Divisional Magistrate on the basis of a police report and on the basis of a complaint filed by the second respondent. Petitioner contended that a civil suit is pending before Munsiff Court, Perumbavoor and in the circumstance, Annexure A1 amounts to a mere abuse of the process of court. Therefore it is prayed that inherent jurisdiction of this court may be invoked. 2. The allegation of the second respondent before the Sub Divisional Magistrate was that he is the owner in Crmc 2780/12 2 possession of five cents of property comprised in survey No.55/33 and 55/34 in block No.13 of Vengoor Village and he got possession and ownership through his predecessor-in-interest. Petitioner, who is also Secretary of Kshethra Samrakshana Samithy, is trying to construct a temple in the disputed land, on the basis that his predecessors were performing pooja and other activities in the kavu and it is their hereditary right to perform pooja. In the circumstance, petitioner and his activists assembled in the property for constructing a temple there on 1.7.2012 and on getting information, S.I of Police, Kuruppampady Police Station intervened and in order to avoid a communal violence, S.I intervened and he reported the matter to the Sub Divisional Magistrate having jurisdiction over the disputed area and the Sub Divisional Magistrate directed the Village Officer, Vengoor to take possession of the disputed property by virtue of order A6-5640/12 dated 03.08.2012. In the circumstance, petitioner who is the Secretary of the Samithy, approached this court with this petition. Crmc 2780/12 3 3. Learned counsel for the petitioner contended that no law and order problem was reported by S.I to issue Annexure A1 order by Sub Divisional Magistrate, Muvattupuzha. Two civil suits are pending between the petitioner and second respondent before Munsiff Court, Perumbavoor, O.S.199 of 2012 and O.S.271 of 2004. In the absence of such law and order problem, interference by Sub Divisional Magistrate is unwarranted. The possession of the property is vested with the petitioner and civil disputes are pending before court. Petitioner relied on the decisions reported in **Ram Sumer Puri Mahant V, State of U.P and others** ( AIR 1985 SC 472), **Amresh Tiwari V. Lalta Prasad Dubey and another** (2000 KHC 1147), **St.George Syrian Church V. Revenue Divisional Officer** ( 2013(1) KLT 163) and **Mathuralal v. Bhanwarlal and another** (AIR 1980 SC 242). 4. Learned counsel appearing for second respondent admitted that there are civil disputes pending before civil court. He also admitted that Annexure A1 was issued Crmc 2780/12 4 when there was a dispute with regard to possession of the property between the local people and second respondent. The disputed property is their family property and in order to solve the breach of peace at the locality, such interference was necessary. 5. Now the question that arise for consideration is whether this is a fit case to invoke the inherent jurisdiction under Section 482 Cr.P.C. The inherent jurisdiction can be exercised to quash proceeding in a proper case for the grounds mentioned in the section to prevent abuse of process of any court or to secure ends of justice. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. This inherent power can be exercised sparingly, carefully and with caution only when such exercise is justified by the specific tests laid down in the Code. 6. In this case, the dispute is with regard to possession of the property. Petitioner contended that the Samithy is possessing the property and petitioners' predecessors were performing pooja and other offerings Crmc 2780/12 5 in the kavu for a pretty long time. But there was some interruption for such pooja and now they wish to proceed with the pooja and other activities. Petitioners also claimed that they are in possession and owners of the property since their forefathers were inheriting the property by virtue of valid title. 7. Section 145 of Cr.P.C deals with the dispute concerning land or water which is likely to cause breach of peace. Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute is likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within the local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The Magistrate shall communicate the information by serving a summons upon the person Crmc 2780/12 6 and publish one copy by affixing to some conspicuous place at or near the subject of dispute. The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. 8. Therefore, petitioner and his members were not dispossessed but the Sub Divisional Magistrate took possession of the property through the Village Officer by virtue of Annexure A1 and in the meantime it was stayed by this court. Therefore, there is no such dispossession as such. Apex Court in **Ram Sumer Puri Mahant'** s case (supra) held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal Crmc 2780/12 7 proceeding under S. 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. In **Amresh Tiwari '** s case (supra) it was held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e S.145 proceedings should not continue. 9. In this case, there was no communal riot reported from the locality. The report of the police officer did not disclose such interference by two communal Crmc 2780/12 8 groups is warranted. No criminal case is registered by the the S.I of police, Kuruppampady against both parties. Therefore, the decision reported in **St.George Syrian Church** 's case is not applicable to the facts of this case. Hence it is directed that if any communal disputes arise between both parties, they are at liberty to approach the appropriate forum. Since status quo was issued by the Munsiff's court, Perumbavoor, it is better to continue the status quo until further orders. In the circumstance, Annexure A1 order is quashed. Crl.M.C is disposed of as above. P.D.RAJAN, JUDGE lgk