Sathiya Prakash and Sreekandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **FRIDAY, THE 28TH DAY OF NOVEMBER 2014/7TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 1592 of 2004 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN Crl.Appeal No.279/2001 of Ist ADDITIONAL SESSIONS COURT, TRIVANDRUM DATED 09-03-2004.** **AGAINST THE JUDGMENT IN CC 367/1997 of J.F.C.M-II,NEDUMANGAD DATED 15-06-2001.** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **-----------------------------------------------------------------------** ## **1. SATHIYA PRAKASH, S/O SIMON,** **CONVENOR, CITU, KANCHANI BRANCH NEDUMANGAD.** **2. SREEKANDAN, S/O.VELAYUDHAN, SECRETARY, KACHANI BRANCH, COMMITTEE NEDUMANGAD.** ## **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR.** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT AND STATE.:** **--------------------------------------------------------------------------------------** ## **1. K.SULOCHANA, AMIN, SUB COURT, NEDUMANGADU.** **2. STATE OF KERALA, REP. BY THE** - **PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, ERNAKULAM, KOCHI -31.** **R1 BY ADVS. SRI.K.K.VIJAYAN SRI.SUMAN CHAKRAVARTHY R2 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.R.P No.1592 of 2004 -----------------------------------------------Dated this the 28[th] day of November, 2014.** ## **O R D E R** Aggrieved by conviction of the revision petitioners by the trial court and lower appellate court for offences punishable under Sections 452 r/w Section 34 I.P.C, 506(ii) r/w Section 34 I.P.C, 189 r/w Section 34 I.P.C and Section 341 r/w Section 34 I.P.C, the accused persons have come up in this revision. The case was instituted on a private complaint by an Amin attached to the Sub Court, Nedumangad. Allegations set out in the complaint can be stated shortly are follows : The complainant was an Amin of Sub Court, Nedumangad and she was entrusted with the duty to deliver the property in O.S No.40/1981 of the Munsiff's Court, Nedumangad. On 01-08-1997, when she reached in the decree scheduled property, she was obstructed by the accused and other persons from carrying out delivery of property. One Nazir, who was one of the defendants in the above suit was also present. The accused **Crl.R.P No.1592 of 2004 2** persons and about 400 people gathered there resisted delivery. They criminally intimidated the complainant. Therefore, she sought police assistance. Thereafter, she again visited the decree scheduled property at about 4.15 p.m on the same day with police. Again, she was obstructed and criminally intimidated by the mob and she could not execute the decree. On the next day, i.e on 02-08-1997, till noon it was a holiday being 'Karkidaka vavu'. When she reached at the court at 1.30 p.m, the revision petitioners/accused and the defendant in the suit, Nazir, were waiting for her. They told her that she should report the matter as directed by them and should also furnish a copy of the report to them, otherwise, she would be killed. She felt fear of death and rushed to Nazerate section. The accused persons followed her and in front of the Nazerate section, she was again intimidated by the accused. Therefore, she reported the matter to the court and filed a complaint to the learned Sub Judge, Nedumangad who in turn forwarded the same to the Judicical **Crl.R.P No.1592 of 2004 3** First Class Magistrate Court - II, Nedumangad. 2. Learned Magistrate took cognizance of the case without examining the complainant. Witnesses alone were examined. The trial court examined four witnesses on the side of the complainant and DW1 on the side of the accused. Exts.P1 to P3 series and Exts.D1 and D2 are the documents produced and marked. 3. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. 4. Learned counsel for the revision petitioners mainly raised three contentions. The prime contention is that the accused cannot be found guilty for the sole reason that the proposed act of the complainant was illegal, as she was attempting to deliver two houses in the decree scheduled property against the terms of the decree and which could have been resisted lawfully by the accused and also by the person affected by wrong delivery. For exercising a lawful right, they **Crl.R.P No.1592 of 2004 4** cannot be prosecuted in a criminal case. Second contention is that the learned Magistrate faulted in not examining the complainant as a witness finding that the the complainant is a public servant acting or purporting to act in discharge of her official duty. Third contention is that there are vital contradictions between the averments in the complaint and Ext.P2 report. 5. I shall deal with the first contention. Ext.D1 is the decree in O.S No.40/1981 on the file of the Munsiff's Court, Nedumangad. Admittedly, PW1, the complainant went to deliver the property included in B schedule to Ext.D1 decree. The descriptions in Ext.D1 decree would show that 7 cents of property with all improvements, building and well thereon were to be delivered to the decree holder from the possession of the judgment debtors. Ext.P2 report submitted by the complainant to the executing court would show that she attempted to deliver two houses in the decree scheduled property. That act was **Crl.R.P No.1592 of 2004 5** resisted by the defendants in the suit and others. 6. Ext.D2 is the judgment passed by this court in Crl.R.P No.1008/1998 filed at the instance of the person residing in one of the houses in B scheduled property to Ext.D1 which was sought to be evicted and delivered. She is 5[th] additional judgment debtor in the above suit. This court considered the contention of the resister in detail and found that apprehension of the resister that she was staying in a building not included in the decree schedule and there was every likelihood of that building being demolished in execution of the decree. After considering the rival contentions, this Court found that there cannot be any basis for the apprehension of the resister insofar as the plot ABFG noted by the Commissioner in the plan is to be delivered to the decree holders. In this matter also, it has been decided that only one building need be delivered in execution of the Ext.D1 decree. Learned counsel for the revision petitioners contended that the act of attempting to deliver two **Crl.R.P No.1592 of 2004 6** houses purported to be included in B schedule property to Ext.D1 was an illegal act on the part of the complainant, which was lawfully resisted by the judgment debtors and the occupants of the house. 7. Resistance to delivery of possession of property to decree holder is dealt with in Order XXI Rule 97(1) and Rule 106 C.P.C. Order XXI Rule 97 C.P.C provides a right of a person to make an application complaining resistance or obstruction to the delivery of property. Order XXI Rule 98 C.P.C deals with the orders to be passed after adjudication. It can only be seen that PW1, the complainant should have reported the matter to the executing court and sought clarification as to whether she was expected to deliver both houses in obedience to the order of delivery of property. This court in _**Vellakutty v. Karthiyani (1967 KLT 667)**_ has categorically stated that rights in immovable property cannot be left to the mercy of an Amin deputed to carry out a delivery order of the court. They can be **Crl.R.P No.1592 of 2004 7** affected only by judicial determinations. Without resorting to that remedy, PW1 insisted to deliver both the houses, which resulted in the untoward incidents. Therefore, I find that resistance offered by the accused, if at all, is lawful and they cannot be prosecuted for that reason. 8. Learned counsel for the revision petitioners submitted that though PW1 stated that she submitted a report to the Nazerite detailing all the facts, the said report was not produced or proved at the time of trial. Ext.P1 is the submission given by PW1 to the learned Sub Judge, Nedumangad. She has stated that when she attempted to deliver property on 01-08-1997, a mob tried to attack her and they abused her. After returning, she went to the property again at 4.15 p.m on the same day. Then also, the mob attempted to attack and criminally intimidated her. It is her version that PW's 2 and 3 were witnesses to the incident which happened in the court from where also she was threatened. **Crl.R.P No.1592 of 2004 8** 9. PW1's testimony is not in complete harmony with recitals in Ext.P1. PW3 turned hostile to the prosecution. PW2 supported the testimony of PW1 to some extent. He feigned ignorance about the identity of the defendant in the suit. There is a suggestion by the defence that he is a relative of the decree holder in the suit. On going through the evidence of PW's 1 and 2, I find that there are material deviations from the averments in the complaint. Therefore, I am unable to accept that the accused persons had criminally intimidated PW1 while she attempted to discharge her duty. 10. Next contention is regarding the illegality committed by the learned Magistrate in registering a case without examining PW1 at the time of enquiry under Section 200 Cr.P.C. Section 200 Cr.P.C says that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing. The **Crl.R.P No.1592 of 2004 9** complainant and the witnesses and also the Magistrate shall sign the statement. Proviso to Section 200 Cr.P.C makes it clear that when a complaint has made in writing by a public servant acting or purporting to act in discharge of his official duty, the Magistrate need not examine the complainant and the witnesses. In this case, Ext.P1 report submitted by the Amin was forwarded by the learned Sub Judge to the Magistrate, which was treated as a complaint. Learned counsel for the revision petitioner would submit that this procedure is not proper. The court should have filed a complaint through its chief ministerial officer. Then only, the benefit of not examining the complainant could have been taken. Learned counsel for the complainant relied on a decision in _**K.Krishna Warrier v. T.R.Velunny (1960 KLT 588)**_ and _**Rajan v. National Small Industries Corporation Ltd. (2008(1) KLT 310)**_ , wherein two learned single Judges of this Court had held that it is not sufficient that that the person filing a complaint is a public servant and that he was acting in discharge **Crl.R.P No.1592 of 2004 10** of his duty; his official duties must also include preferring complaints in accordance with the provisions of law by which he is empowered to file a complaint. In this case, the procedure adopted by the courts below and non examination of PW1 at the stage of enquiry under Section 200 Cr.P.C is also improper. I find that there is some force in the submission. Reckoning the entire facts and circumstances, I find that there are procedural irregularities affecting the prosecution. In the result, the revision petition is allowed. Conviction of the petitioners by the trial court which was confirmed by the lower appellate court is hereby set aside. The accused are acquitted. All pending interlocutory applications will stand dismissed. Sd/- **A.HARIPRASAD,** amk **JUDGE.** **//True copy//** **P.A to Judge**