Praveen, Rajappan and Sarala v. State of Kerala and Kavitha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940 Crl.MC.No. 7267 of 2016** **CC 539/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM CRIME NO. 327/2016 OF MULANTHURUTHY POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED NO.1 TO 3:** |**1**|**PRAVEEN, AGED 32 YEARS,**| |---|---| ||**S/O.RAJAPPAN,PAREKKATTIL HOUSE, AMABLLOOR**| ||**PO,KANJIRAMATTOM, ERNAKULAM.**| |**2**|**RAJAPPAN, AGED 65 YEARS,**| ||**S/O.KUNJU PILLAI, PAREKKATTIL HOUSE, AMBALLOOR**| ||**PO,KANJIRAMATTOM, ERNAKULAM.**| |**3**|**SARALA, AGED 60 YEARS,**| ||**W/O.RAJAPPAN,PAREKKATTIL HOUSE, AMABALLOOR**| ||**PO,KANJIRAMATTOM, ERNAKULAM.**| ||**BY ADVS.**| ||**SRI.S.RAJEEV**| ||**SRI.D.FEROZE**| ||**SRI.K.K.DHEERENDRAKRISHNAN**| ||**SRI.V.VINAY**| ## **RESPONDENTS/STATE/DE FACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031. (CRIME NO.327/2016 OF MULANTHURUTHY POLICE STATION, ERANKULAM DISTRICT).** - **2 KAVITHA, AGED 45 YEARS, D/O.DAMODARAN NAIR, NAVULLIL HOUSE, AMBALLUR, MULANTHURUTHY, ERNAKULAM.** ## **R1 SRI T R RENJITH, PUBLIC PROSECUTOR** **R2 BY ADVS. SRI.V.S.ABHISHEK** **Crl.MC.No. 7267 of 2016** **2** **SMT.LAKSHMI SREEDHAR SRI.P.VISWANATHAN SRI.SHIBU JOSEPH SRI.S.NITHIN GANESH SRI.SUNIL N.SHENOI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7267 of 2016** **3** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioners herein are accused Nos.1 to 3 in C.C.No.539 of 2016 pending on the files of the Judicial Magistrate of First Class, Piravom. In the aforesaid case, they are accused of having committed offences punishable under Sections 141, 143, 447, 427, 341, 294(b) and 506(ii) r/w. Section 149 of the IPC. 3. The 1[st] petitioner herein is the son of petitioners 2 and 3. The de facto complainant and the petitioners are immediate neighbors. A long standing dispute exists between them in respect of a pathway which leads to the Western Panchayat road. The records made available would reveal that the petitioners are having properties on the eastern most portion of a block of land and the only pathway leading to the Panchayat road passes through the middle of the property of the 2[nd] respondent and her siblings. It is also born out from the records that the 1[st] respondent had purchased the property in the year 2012 from the brother of the 2[nd] respondent. It is in the **Crl.MC.No. 7267 of 2016** **4** above background, the prosecution allegations as per the charge is to be appreciated. 4. The sequence of events are as follows: On 16.3.2016 at about 3 pm, a complaint was lodged by the 2[nd] respondent before the Sub Inspector of Police, Mulanthuruthy, wherein she alleges that the 1[st] petitioner along with several others had trespassed into her property and had hurled abuses. She further alleged that certain plants were cut and removed by those persons. When she intervened, she was criminally intimidated. They are alleged to have committed mischief by causing damage to a water pump. They are also alleged to have made attempts to alter the boundaries. She requested the police to initiate action against the 1[st] accused. In the said complaint, a copy of which is produced as Annexure-II, no reference is made to the petitioners 2 and 3, who are senior citizens. It appears from Annexure-III that the parties were summoned to the Police Station on 19.3.2016 and they were asked to approach the civil court to settle their property disputes. They were also asked to maintain peace and the complaint was closed. It appears that later the de facto **Crl.MC.No. 7267 of 2016** **5** complainant approached the jurisdictional Magistrate and lodged a complaint which was referred to the police under Section 156(3) of the Cr.P.C. Annexure-IV FIR was consequently registered on 4.4.2016. After completion of investigation, Annexure-V final report was laid under Sections 143, 447, 427, 341, 149, 294(b) and 506(ii) of the IPC. In the charge, the prosecution allegation is that on 16.3.2016 at about 3 p.m, the petitioners herein trespassed into the pathway earmarked for the use of the 2[nd] respondent and her siblings and cleared the same of all bushes in the course of which a softwood tree was allegedly cut and removed. The accused are alleged to have committed mischief by causing damage to a pipe line. When the de facto complainant and CWs 2 and 3 intervened, they were allegedly threatened and abused. 5. The learned counsel appearing for the petitioners would contend that the ingredients and factual content of the offence alleged against the petitioners are not made out. It is submitted that the criminal proceedings has been instituted to harass the petitioners for instituting a civil suit to protect their right of access. According to the learned counsel, the 1[st] petitioner **Crl.MC.No. 7267 of 2016** **6** herein had purchased property having an extent of 6 cents from one Chandrasekharan, the brother of the de facto complainant by Annexure-VI Sale deed registered on 5.3.2012. As per the provisions of the sale deed, the 1[st] petitioner had acquired right of way through a 3 metre wide pathway starting from his property which situates on the East to the Panchayat road which situates on the West. The said pathway bisects the properties of the 2[nd] respondent and her siblings. They also used the very same pathway for accessing the Western Panchayat road. The said pathway is the only access of the 1[st] petitioner and when objection was raised to the user of the said pathway, he approached the Munsiff Court, Ernakualm and filed O.S.No.487 of 2016 on 22.3.2016 and obtained Annexure-I order of injunction on 26.3.2016. By the said order, the de facto complainant and her siblings and others have been restrained from causing any obstruction to the 1[st] petitioner in using the said pathway and from taking vehicles to his property or in committing any act interfering with the user of the said pathway. The learned counsel points out that it was after instituting the civil suit and after getting an order of injunction in his favour that the 2[nd] respondent had approached the learned Magistrate **Crl.MC.No. 7267 of 2016** **7** and lodged the complaint based on which Annexure-IV Crime was registered on 4.4.2016. The learned counsel would further contend that a Commissioner was appointed by the learned Munsiff and he had visited the said property on 24.3.2016 to ascertain the nature and lie of the property. In the said report, he has clearly stated that except for the disputed pathway there is no way for the petitioners to access their respective properties. The learned counsel then points out that in the charge, the specific case of the de facto complainant is that the petitioners herein had trespassed into her pathway, cleared the same of all bushes and brought down a pathway. In view of the fact the petitioners herein had also right to use the pathway for their access as temporarily validated by the civil court, there was no question of attracting offence under Section 447 of the IPC. It is further submitted that the offence under Section 294(b) has also no application as the prosecution has no case that the applicant herein had uttered any obscene word in or near any public place. He would contend that Section 427 of the IPC will not have any application as the petitioners have every right to clear their pathway and use it fit for their access. According to the learned counsel, it is evident that the criminal **Crl.MC.No. 7267 of 2016** **8** proceedings have been initiated in a veiled attempt to pressurize the petitioners to withdraw the civil suit. 6. The learned counsel appearing for the 2[nd] respondent would contend that jurisdiction under Section 482 of the Code cannot be exercised as the evidence collected in support of the prosecution case do disclose the commission of the offence alleged in the charge. According to the learned counsel, when the final report prima facie constitutes various offence and in the absence of materials to show that the continuance of proceedings would be abuse of process of the court or would defeat the ends of justice the final report cannot be quashed. A legitimate prosecution cannot be stifled when it has reached the door steps of the criminal court is the argument advanced. 7. I have considered the submissions advanced and have gone through the final report. Annexure-VI sale deed would show that the 1[st] petitioner herein had purchased 6 cents of property on 5.3.2012 from one Chandrasekharan who incidentally is the brother of the 2[nd] respondent. The property which was sold to the petitioner was part of a larger extent of 48.20 Ares owned by the grandfather of the 2[nd] respondent, late **Crl.MC.No. 7267 of 2016** **9** Sri.Damodharan Nair. The property allotted to the 2[nd] respondent was also from a portion of the larger extent. Annexure-VI deed would show that the 1[st] petitioner had right to user of a pathway having a width of 3 metres to access the Western Panchayat road. Annexure-VIII is the plaint in a suit instituted by the 1[st] petitioner herein seeking declaration of his right of way through the very same pathway on the ground that he has acquired easement by way of grant and by way of necessity. The civil court after appreciating the facts and circumstances had granted an interim order in favour of the 1[st] applicant on 26.3.2016. 8. In the above back drop, when the allegations in the final report is appreciated, it would be evident that the case of the de facto complainant is that on 16.3.2016, the petitioners along with others had trespassed into the pathway and had committed mischief and criminal intimidation. It is evident from Annexure-II that the version of the de facto complainant in the initial stage was quite different from her version in the private complaint which was filed before the learned Magistrate after institution of the suit by the 1[st] petitioner herein. In Annexure-II **Crl.MC.No. 7267 of 2016** **10** complaint, there is no whisper with regard to the participation of the petitioners 2 and 3 who are the aged parents of the 1[st] petitioner. Furthermore, the entry of the petitioners in the pathway which is allotted to them as per the terms of the sale deed cannot amount to criminal trespass. They had equal right to use the said pathway to access the Panchayat road and it was owing to the said reason that the learned Munsiff had granted an injunction in their favour. To attract an offence under Section 447 of the IPC, the prosecution must have a case that the entry must be with the necessary intent envisaged under Section 441 of the IPC which contemplates three necessary ingredients: i) There must be entry into or upon a property in possession of another ii) Even if such entry is lawful, it may amount to criminal trespass, if the person entering there, unlawfully remains upon such property and iii) Such entry as aforesaid or unlawfully remaining as stated above must be with intent to (a) to commit an offence or (b) to intimidate, insult or annoy the person in possession of the property. Those elements are absent herein and there cannot be any **Crl.MC.No. 7267 of 2016** **11** doubt that offence under Section 447 of the IPC will not be made out. Similar is the case with Section 427 of the IPC. The only allegation is that the petitioners herein had cleared the pathway and removed a softwood tree without value which stood obstructing the pathway. 9. Insofar as Section 294(b) is concerned, nowhere in the charge or in the complaint has the 2[nd] respondent mentioned about the abusive or humiliating words used by the petitioners to attract the offence under the said section. In order to satisfy the test of obscenity to bring the offence within the ambit of Section 294(b) of the IPC, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of the hearers (See **Sangeetha Lakshmana v. State of Kerala** [2008 (2) KLT 745]; **Latheef v. State of Kerala** [2014 (2) KLT 987]. Insofar as Section 506(ii) of the IPC is concerned, there are no specific allegations in the final report that the petitioners herein had threatened the de facto complainant with death or grievous hurt with intent to cause alarm. **Crl.MC.No. 7267 of 2016** **12** 10. In **State of Karnataka** v. **L. Muniswamy and others** [(1977) 2 SCC 699], a three-Judge Bench of this Court referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report held as under : “7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object **Crl.MC.No. 7267 of 2016** **13** and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” ## 11. In **G. Sagar Suri and another v. State of U.P. and others** [(2000) 2 SCC 636], the Apex Court held as under: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” **Crl.MC.No. 7267 of 2016** **14** 12. After considering the entire facts, I am of the view that the allegations in the final report do not disclose the commission of the offence or make out a case against the accused. There are civil disputes between the parties concerning a pathway and after the institution of the suit, a criminal prosecution has been initiated. I am certain that the proceedings is manifestly attended with mala fide and has been instituted merely for harassing the petitioners. As held by the Apex Court, summoning the accused to the criminal court is a serious matter and the act of the de facto complainant is roping in the parents of the 1[st] petitioner whose involvement is not even mentioned in Annexure-II complaint would show her intentions. The veiled object behind the initiation of prosecution, the nature of the materials based on which the entire edifice of the prosecution case is propped up and the evident mala fides in approaching the criminal court after settling the entire disputes are some of the reasons which persuades this Court to quash the proceedings. In the result, this petition will stand allowed. Annexure-V final report and all proceedings pursuant thereto against the **Crl.MC.No. 7267 of 2016** **15** petitioners now pending as C.C. No.539 of 2016 on the file of Judicial First Class Magistrate Court, Piravom are quashed. Sd/- **RAJA VIJAYARAGHAVAN. V. JUDGE** **Crl.MC.No. 7267 of 2016** **16** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **ANNEXURE I** **TRUE COPY OF THE ORDER IN IA.NO. 2799/2016 IN OS.NO. 487/2016 PASSED BY THE MUNSIFF'S COURT III, ERNAKULAM** - **ANNEXURE II** - **TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE MULANTHURUTHY POLICE** - **ANNEXURE III** - **TRUE COPY OF THE DECISION RECORDED AND ACCEPTED BY PARTIES IN TEH PETITION REGISTER** ## **ANNEXURE IV** - **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 327/2016 OF MULANTHURUTHY POLICE STATION** ## **ANNEXURE V** - **CERTIFIED COPY OF THE FINAL REPORT IN CC.NO. 539/2016 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PIRAVOM** **ANNEXURE VI TRUE COPY OF THE SALE DEED NO.1-6912012** **DATED 05.03.2012.** **ANNEXURE VII TRUE COPY OF THE PLAINT IN OS NO.487/16** **SUBMITTED BY THE FIRST PETITIONER.** - **ANNEXURE VIII TRUE COPY OF THE COMMISSIONER'S REPORT DATED** - **02.04.2016 IN OS NO.487/2016.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **Crl.MC.No. 7267 of 2016 17**