Shafeeq M.K. v. State of Kerala & Mubeena

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** ## **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** ## **CRL.MC NO. 812 OF 2021** **CC 1406/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEDUMANGAD** ## **PETITIONER/ACCUSED** SHAFEEQ M.K. AGED 47 YEARS S/O. MOIDEENKHAN, PUNNAVEEDU VILAKATH VEEDU, MUKKOLA, ARUVIKKARA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SALIM V.S. SMT.A.M.FOUSI ## **RESPONDENTS/COMPLAINANT** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 MUBEENA, W/O. NAZIMUDHEEN, CHARUVILAKATH VEEDU, MARUTHOOR, VATTAPPARA, THIRUVANANTHAPURAM-695028. BY ADV T.RAJASEKHARAN NAIR PP SANAL.P.RAJ ## **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **21.1.2022, THE COURT ON 31.01.2022 DELIVERED THE FOLLOWING:** Crl.M.C.No.812 of 2021 2 ## **O R D E R** The petitioner is the accused in C.C.No.1406/2019 on the file of the Judicial First Class Magistrate Court-II, Nedumangad charged under Sections 447, 341, 427, 379 and 506(ii) of IPC. 2. It is alleged that on 07.07.2016 at about 8 a.m the petitioner/accused (hereinafter be referred as the petitioner) trespassed into the property having an extent of 11.07 Ares in possession and enjoyment of the 2[nd] respondent/defacto complainant (hereinafter be referred as the defacto complainant) claiming that it belongs to the petitioner and put up a barbed iron fencing and added it to the property of the petitioner and cut and removed anjili tree worth Rs.24,000/- standing in the said property without the permission or consent of the defacto complainant and destroyed the boundaries and uprooted the rubber trees and caused loss of about Rs.1 lakh to the defacto complainant. It is further alleged that when the defacto complainant and her husband reached the spot knowing about the incident, they were wrongfully restrained from entering into their property and intimidated and thereby committed the offence aforementioned. Crl.M.C.No.812 of 2021 3 3. According to the learned counsel for the petitioner, the property actually belongs to him and there is also a civil suit pending as O.S.No.500/2016 before the Munsiff Court, Nedumangad with respect to the ownership of the property and he has sought for permanent prohibitory injunction for restraining the defacto complainant herein from trespassing into the property and committing waste therein. Defacto complainant also filed O.S.No.552/2016 seeking for a permanent prohibitory injunction for restraining the petitioner from trespassing into the property and committing waste before the Munsiff Court, Nedumangad. A temporary injunction has already been granted in O.S.No.500/2016 in favour of the petitioner. It is the case of the petitioner that the defacto complainant claims right over the property based on a Will which alleged to have been executed by the mother when she was not mentally fit to execute it. So the ownership of the property in question could be determined only after the adjudication of the above civil suits. Hence the criminal proceedings initiated by the defacto complainant is a clear abuse of process of law and hence he seeks for quashing the proceedings in C.C.No.1406/2019. 4. Notice was issued to the respondents. Learned Public Crl.M.C.No.812 of 2021 4 Prosecutor appeared for the first respondent-State. Adv.Sri.T. Rajasekhan Nair, appeared for the 2[nd] respondent. Heard both sides. 5. Now the point for determination is whether the proceedings in C.C.No.1406/2019 is liable to be quashed ? 6. The inherent power vested with this Court under Section 482 Cr.P.C. can be exercised to prevent an abuse of process of court or otherwise to secure the ends of justice. The situations in which this Court can exercise the said jurisdiction is no more res integra. In **R.P. Kapur v. State of Punjab [AIR 1960 SC 866]** while dealing with the inherent power of the High Court it has been held that inherent power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is also held that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. Crl.M.C.No.812 of 2021 5 7. In **CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872]** , it has been held that the inherent jurisdiction is to be exercised carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. In **State of Karnataka v. L. Muniswamy [AIR 1977 SC 1489]** that 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 it. In **Gorige Pentaiah v. State of A.P [(2008) 12 SCC 531]** it has been held while dealing with Section 482 that if any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 8. The main contention of the learned counsel for the petitioner in this case is that civil suits are pending in connection with the right, possession and ownership of the property where the anjili tree alleged to have been felled was standing So without settling the issues by a competent civil court, where the case is pending, criminal court cannot enter into a finding with respect of the right, ownership or possession of the property. So Crl.M.C.No.812 of 2021 6 the initiation of the proceedings in C.C.No.1406/2019 will not serve any purpose and will be a mere abuse of process of court. It is also his contention that it is after filing the civil suit O.S.No.500/2016 by the petitioner that the law was set in motion by the 2[nd] respondent by filing a private complaint before the Judicial First Class Magistrate Court-II, Nedumangad. 9. The copy of the FIR which is produced as Annexure AI would go to show that though the incident alleged to have taken place on 07.07.2016 the FIR has been lodged on 05.08.2016. Annexure A1/3 the copy of the complaint in CMP No.10140/2016 would show that it is after filing the civil suit by the petitioner seeking injunction against trespass with respect to the properties including the property comprised in re-survey No.506/6 that this private complaint has been filed by the defacto complainant and based on which the FIR was registered. 10. Admittedly the petitioner is none other than the brother of the defacto complainant. It is the specific contention of the petitioner that the property was bequeathed by the parents in his favour as per the Will dated 17.01.2002 before the father proceeded for Haj during 2002 and the respective parties were put in actual possession of the properties and have been in Crl.M.C.No.812 of 2021 7 enjoyment of the properties. The property where the disputed anjili tree was standing is in the property allotted to him. 11. Annexure A3, copy of the plaint in O.S.No.552/2016 filed by the defacto complainant would show that she is claiming right over the property as per a Settlement Deed executed by the mother on 03.06.2016. But she has also alleged that though the parents had executed a Will No. 1/2002 on 17/01/2002 with respect to the properties including the property comprised in resurvey No.506/6 of Aruvikkara Village on 23.10.2009 they jointly cancelled the Will No.1/2002 by a cancellation deed No.73/2009 of the Vellanad SRO. According to her, Will No.1/2002 has not come into force and the petitioner has not obtained any ownership or possession with respect to any of the properties scheduled under Will No.1/2002 and that fact is wellknown to the petitioner and that was purposefully suppressed in O.S.No.500/2016. 12. At the time of argument as well as in the Criminal M.C. the petitioner was specifically contending about the Will executed by the parents in the year 2002. But on looking at Annexure A2, the plaint in O.S.No.500/2016, it is seen that the copy of the said Will has not been produced. Only the Sale Deed Crl.M.C.No.812 of 2021 8 No.1407/1978 and death certificate of the father are produced. So it appears prima facie that though the petitioner herein filed O.S.No.500/2016 on 12.07.2016 before the registration of the FIR the averments in the plaint prima facie would go to show that he suppressed the execution of cancellation deed by the parents in the year 2009. He did not produce the alleged Will of 2002 executed by the parents, whereas, the defacto complainant produced along with the plaint apart from the Sale Deed No.1407/1978 and also of the settlement deed executed in favour of the petitioner as well as the defacto complainant and the other brother and the photocopy of the cancellation of will deed No.73/2009. 13. It is true that the learned counsel for the petitioner drew my attention to the statement of charge witness No.3 (CW3) in Annexure A4 Final Report wherein he has given a statement that the petitioner was looking after the property and the property of petitioner and defacto complainant are lying together. On verifying the statement of CW3 it could be seen that he is the driver of the petitioner whenever he comes down to India. It is also to be noted that he has given a statement that at the time of cutting the tree the property was lying together. Crl.M.C.No.812 of 2021 9 14. Charge witness No.2 is a person who is doing the work of erecting barbed iron fencing on contract basis. His statement that he along with four workers went to the property of the petitioner and when the work was over by three fourth, police from Aruvikkara Police station came and directed them to stop the work. It is stated that while erecting the barbed iron fencing he enclosed the anjili tree in the property of the petitioner and further stated that the property lying near the place where barred iron fencing was erected belonged to the sister of the petitioner and further that he was not aware of the actual boundary. Now crime has been registered against the petitioner and others for criminal trespass, theft as well as criminal intimidation. So if at all the properties were settled by the mother in the year 2016 and the Will jointly executed by the parents in the year 2002 was cancelled by a subsequent cancellation deed in the year 2009 prima facie at this stage this Court cannot come to a conclusion that the property was being enjoyed by the petitioner in pursuance of the Will executed by the parents in the year 2002. The allegation that the mother was not capable of taking decisions and executing the Settlement Deed during 2016 also cannot be accepted at this stage without Crl.M.C.No.812 of 2021 10 any material. None of the charge witnesses has given such a statement also. Though the petitioner's counsel attempted to convince this Court that the dispute between the parties is purely civil dispute with respect to the right and ownership of the property between the petitioner and the defacto complainant in view of the specific contention of the defacto complainant with regard to the execution of the settlement deeds by the mother in the year 2016 and cancellation of the Will in the year 2009 and especially filing of the civil suit by the petitioner after cutting and removing the anjili tree which alleged to have been allotted to the share of the defacto complainant, at this stage, it will not be proper on the part of this Court to come to a conclusion that the dispute between the parties are purely civil in nature and no criminal offence would be attracted. In this context the learned counsel for the defacto complainant would also contend that the petitioner had filed Crl.M.C to quash the FIR and no stay was granted by this Court and after investigation Final Report has also filed and thereafter the present Crl.M.C has been filed to quash the proceedings. 15. The learned counsel for the defacto complainant also placed reliance on M/s. Indian Oil Corporation v. M/s. NEPC Crl.M.C.No.812 of 2021 11 India Ltd & Ors. [AIR 2006 SC 2780 : 2006 (6) SCC 736: 2006 KHC 1202]. It is relevant to extract paragraph No.9, which reads as follows: ## “9. Re: Point No.(i): The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan v. Vijay Kumar, JT [2001 (8) SC 540], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are : (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. Crl.M.C.No.812 of 2021 12 For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil Crl.M.C.No.812 of 2021 13 law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 16. So there is no bar in taking recourse by civil proceedings and criminal proceedings for the same cause of action and that is not a ground to quash the criminal proceedings. Here in this case it is true that immediately after the alleged incident on 07.07.2016 the petitioner filed O.S.No.500/2016 on 12.07.2016 and obtained an exparte injunction. But the defacto complainant who is none other than the sister of the petitioner has got a specific contention that she is residing away from the property allotted to her. It is also alleged that taking advantage of that situation the petitioner trespassed into her properties and removed the survey stone, destructed the boundary which separated the defacto complainant's property from the property owned by the petitioner and cut and removed the big anjili tree aged more than 100 years standing in her allotted share. So the facts and Crl.M.C.No.812 of 2021 14 circumstances would prima facie show that after cutting and removing the anjili tree the petitioner approached the civil court and obtained an interim ex parte injunction by suppressing the cancellation of the gift deed executed by the parents in the year 2009. So the fact that the civil suits have been filed by the petitioner subsequent to the alleged act and it is after that the defacto complainant who is the sister of the petitioner filed private complaint and FIR was registered and Final Report was filed cannot be taken as a reason to come to a conclusion at this stage that the entire issues between the parties are purely civil in nature and criminal prosecution would be an abuse of process of court. In the result, the Crl.M.C. is found to be devoid of any merit and hence dismissed. Sd/- **M.R.ANITHA** **JUDGE** shg Crl.M.C.No.812 of 2021 15 ## **APPENDIX OF CRL.MC 812/2021** PETITIONER ANNEXURES ANNEXURE A1 ANNEXURE A2 ANNEXURE A3 ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.670/2016 OF ARUVIKKARA POLICE STATION ALONG WITH CMP 10140/2016. ANNEXURE A2 TRUE COPY OF OS NO.500/2016 OF MUNSIFF COURT, NEDUMANGAD FILED BY THE PETITIONER. ANNEXURE A3 TRUE COPY OF OS NO.552/2016 OF MUNSIFF COURT, NEDUMANGAD FILED BY THE 2ND RESPONDNET AND HER SISTER, MUMTHAS. ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.670/2016.