Subramonia Kaimal and others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **Crl.Rev.Pet.No.110 of 2019** **CC NO.995/2013 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, ALAPPUZHA** **CRIME NO.206/2012 OF MARARIKULAM POLICE STATION, ALAPPUZHA** ## **REVISION PETITIONERS/ACCUSED NO.1,3 AND 4:** - **1 SUBRAMONIA KAIMAL, AGED 65 YEARS, S/O VASU MENON, VARAKADI CHITRA BHAVAN, PERUNNER MANGALAM MURI, MARARUKULAM NORTH VILLAGE, S.L.PURAM P.O., ALAPPUZHA DISTRICT-688 523.** - **2 SUJATHA, AGED 59 YEARS, W/O. SUBRAMONIA KAIMAL, VARAKADI CHITRA BHAVAN, PERUNNER MANGALAM MURI, MARARUKULAM NORTH VILLAGE, S.L. PURAM P.O, ALAPPUZHA DISTRICT-688523.** - **3 SUMITHRA, AGED 36 YEARS, D/O. SUBRAMONIA KAIMAL, VARAKADI CHITRA BHAVAN, PERUNNER MANGALAM MURI, MARARUKULAM NORTH VILLAGE, S.L.PURAM, P.O, ALAPPUZHA DISTRICT-688523.** **BY ADVS. SRI.M.P.KRISHNAN NAIR JOSEPH THEKKEKURUVANAL SMT.RAJESWARI KRISHNAN SMT.SEEMA KRISHNAN SUSMITH KUMAR T.D** ## **RESPONDENTS/COMPLAINANT/DE FACTO COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 THE SUB INSPECTOR OF POLICE, MARARIKULAM NORTH POLICE STATION, S.L.PURAM, P.O, ALAPPUZHA DISTRICT-688523.** 2 Crl.Rev.Pet.No.110 of 2019 **3 MADHU V.D, S/O.DAMODARAN PILLAI,SOPANAM,PERUNNER MANGALAM, MARARIKULAM NORTH VILLAGE, S.L.PURAM, P.O, ALAPPUZHA DISTRICT-688523.** **4 RAJESH, AGED 35 YEARS, S/O.RAJAN PILLAI, THAYYIL HOUSE, EAST OF SN COLLEGE, CHERTHALA, ALAPPUZHA DISTRICT688523. (DELETED) (R4 IS DELETTED FROM THE PARTY ARRAY AS PER ORDER DATED 11/01/2019 IN CRL.MA.02/2019)** **BY ADVS. SRI.C.V.MANUVILSAN SHRI.SHANIL P.C. SMT.K.VIDYA SMT.SREELEKSHMI SANALKUMAR SRI.VINODE V. LUKA** **SMT.M.K.PUSHPALATHA SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 Crl.Rev.Pet.No.110 of 2019 ## **ORDER** The 3[rd] petitioner herein is the daughter of the petitioners 1 and 2. They have been arrayed as accused Nos.1, 3 and 4 in C.C.No.995 of 2013 on the file of the Judicial First Class Magistrate Court-I, Alappuzha, for having committed offences punishable under Sections 447, 294(b), 420 r/w. Section 34 IPC. They have approached this Court challenging the proceedings before the learned Magistrate and the order framing charge. 2. The factual background of the proceedings under challenge can be set out as under. According to the 3[rd] respondent, at whose instance the case happened to be registered, he was on the lookout for a piece of property to put up a residential home. The 1[st] petitioner was the owner of property having an extent of 23.722 cents situated within the limits of Mararikulam village. He offered to assign the property to the 3[rd] respondent. During negotiations, the 1[st] petitioner is alleged to have stated that the access to the property would be through a pathway having a width of 3 metres lying on the western side of his property and he and others were having absolute right over the same. The 3[rd] respondent was also told that he could take motor cars through the said pathway. After ascertaining the nature and lie of the property, the 3[rd] respondent purchased the 4 Crl.Rev.Pet.No.110 of 2019 property on 9.2.2009 for a total consideration of Rs.1,03,000/-. Thereafter, with a view to construct a residential home, he attempted to bring construction equipment. This was obstructed by the petitioners and others. On further investigation, he came to understand that the pathway stands in the name of Saraswathy Amma, the sister of the 1[st] petitioner. According to him, he was deceived by the accused and was made to part with a sum of Rs.1,03,000/- by falsely misrepresenting that the 1[st] petitioner was the absolute owner of the pathway. A complaint was lodged on these allegations before the learned Magistrate, which was forwarded to the police under Section 156(3) of the Cr.P.C and a crime was registered under Section 420 r/w Section 34 of the IPC. After investigation, police filed a final report adding Sections 294 (b) and 447 of the IPC in addition to the other offences. 3. Sri.M.P.Krishnan Nair, the learned counsel appearing for the petitioners, submitted that the allegations in the final report will not make out any offence against the petitioners. The 1[st] petitioner, as the owner of the assigned property, had the right to use the pathway lying on the western side as per an agreement entered into by him and his sister. While assigning the property to the 3[rd] respondent, he had assigned the said right as well, as it runs with the land. In the assignment deed, this aspect was specifically mentioned. Later, when the 3[rd] respondent attempted to take heavy motor vehicles through 5 Crl.Rev.Pet.No.110 of 2019 the pathway, disputes arose between the parties, which led to the institution of O.S.No.536 of 2011 by the 1[st] petitioner on 28.11.2011 before the Munsiff Court, Cherthala. He had sought to restrain the defendant from taking any vehicle through the pathway or in trespassing into his property or from widening the pathway. The learned Munsiff as per order dated 6.12.2011 had passed an interim injunction in favour of the 1[st] petitioner. However, after conclusion of trial, by judgment dated 24.01.2015, which is produced as Annexure-A12, the said suit was dismissed. The learned counsel would further contend that O.S.No.551 of 2011 was filed by the 3[rd] respondent before the Munsiff Court on 09.12.2011 seeking a relief of injunction and to restrain the petitioners from interfering with his right over the pathway. The said suit was decreed by judgment dated 14.06.2013. Relying on these judgments, it is submitted that the right which was conferred by the petitioners to the party respondent to use the pathway was declared by the Civil Court and in that view of the matter, the allegation that the petitioners had deceived him cannot be sustained. He would also contend that the petitioners also have a right to use the pathway and hence, the offence of criminal trespass will not lie. Finally, it is submitted that the ingredients of the offence under Section 294(b) of the IPC are not made out. 4. Sri.Manuvilsan, the learned counsel appearing for the 3[rd] respondent, has strenuously opposed the prayer. The learned counsel took great 6 Crl.Rev.Pet.No.110 of 2019 pains to point out that at the time of execution of the sale deed, the 1[st] petitioner had claimed that he was the absolute owner of the pathway and that the 3[rd] respondent could use the same for his ingress and egress. However, later it was revealed that the said assertion was false. He had only a right to use the pathway and had no absolute right. He would refer to the decision of the Apex Court in **Sau.Kamal Shivaji Pokarnekar v. State of Maharashtra and Others** [2019(3) SCALE 277] and it was argued that when prima facie case is disclosed, this Court should refrain from interfering with the criminal proceedings and leave it to the trial court to adjudicate the same as per law. 5. I have considered the submissions advanced and have gone through the materials made available. The entire disputes revolve around the recitals of the assignment deed executed by the 1[st] petitioner in favour of the 3[rd] respondent. The same is extracted below for easy reference. “പട്ടികവസ്തൂവിന്റെ പടിഞ്ഞാറെ അതിരിന ോടുച്ഛെ ർന്നു എന്റെ വകയായുള്ള 3 മീറ്റർവീതിയിൽഞാൻഇട്ടിരിക്കുന്നപൂഴിരരോഡിൽക്കൂടിഞാൻ അവകാശം സഞ്ചരിക്കുന്നതുപപോലെ താങ്കൾക്കും സഞ്ചരിക്കുന്നതിനുള്ള ഉണ്ടായിരിക്കുന്നതാണന്നുഞാൻഇതിനാൽപൂർണമായിസമ്മതിച്ചിരിക്കുന്നു.” 6. What is discernible from the above is that the 1[st] petitioner was having the right of usage over a pathway lying on the western side of his property. While assigning the property to the 3[rd] respondent, the right of usage of the pathway was also transferred. The recital clearly shows that the 7 Crl.Rev.Pet.No.110 of 2019 petitioners were also using the same pathway for their ingress and egress. The 3[rd] respondent has no case that there is any legal embargo in him using the said pathway for his ingress and egress. From the judgments passed by the Civil Court, the right of the 3[rd] respondent to use the pathway without any obstruction has been declared. To attract an offence under Section 420 of the IPC, it has to be shown that the 1[st] petitioner had a dishonest intention at the inception. 7. Now what remains are the offences under Sections 294(b) and Section 447 of the IPC. There is no question of the offence under Section 447 of the IPC being attracted as the 1[st] petitioner is having equal right over the said pathway. The 3[rd] respondent has no case that the pathway is in his exclusive possession and that the petitioners had no legal right to enter into the same. In order to attract the offence under Section 294(b), it is essential that the words alleged to have been uttered are capable of arousing sexually impure thoughts in the minds of its hearers. In the case on hand, the alleged words used by the petitioners are not disclosed in the statement or in the final report. As has been held by the Apex Court in **Indian Oil Corporation v. NEPC India Ltd.** [2006 (6) SCC 736], there is a growing tendency on the part certain litigants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature. This is with a view to apply pressure on the accused to force them to come to a settlement. The criminal courts are to 8 Crl.Rev.Pet.No.110 of 2019 ensure that proceedings before it are not used for settling scores or to pressurize parties to settle disputes. In the result, this petition is allowed. Annexure-A22 charge sheet and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.995 of 2013 on the file of the Judicial First Class Magistrate Court-I, Alappuzha are quashed and the petitioners will stand discharged. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** IAP 9 Crl.Rev.Pet.No.110 of 2019 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**TRUE COPY OF THE CMP NO.644/12 FILED BY THE**| ||**3RD RESPONDENT BEFORE JFCM, ALAPPUZHA.**| |**ANNEXURE A2**|**TRUE COPY OF THE FIR NO.206/12 DATED**| ||**04.4.2012 OF MARARIKULAM POLICE STATION.**| |**ANNEXURE A3**|**TRUE COPY OF THE ORDER DATED 18.6.2012 IN**| ||**BA NO.3005/2012**| |**ANNEXURE A4**|**TRUE COPY OF THE ORDER DATED 06.7.2012 IN**| ||**BA.NO.4601/2012.**| |**ANNEXURE A5**|**TRUE COPY OF THE NOTICE DATED 25.2.2012**| ||**SUBMITTED BY THE COUNSEL FOR THE PETITIONER**| ||**TO THE SUB INSPECTOR OF POLICE MARAIKULAM.**| |**ANNEXURE A6**|**TRUE COPY OF THE JUDGMENT DATED 12.3.2012**| ||**IN WPC.NO.5686/12.**| |**ANNEXURE A7**|**TRUE COPY OF THE JUDGMENT DATED 27.01.2016**| ||**IN WPC.NO.10621/12**| |**ANNEXURE A8**|**TRUE COPY OF THE LETTER DATED 29.3.2017**| ||**ISSUED BY THE DIG OF POLICE TO THE COUNSEL**| ||**FOR THE PETITIONERS.**| |**ANNEXURE A9**|**TRUE COPY OF THE OS.NO.536/2011 FILED BY**| ||**THE 1ST PETITIONER BEFORE THE MUNSIFF**| ||**COURT, CHERTHALA.**| |**ANNEXURE A10**|**TRUE COPY OF THE OBJECTION FILED BY THE**| ||**DEFENDANT IN IA.NO,3573/2011**| |**ANNEXURE A11**|**TRUE COPY OF THE INJUNCTION ORDER DATED**| ||**19.1.2012 IN IA.NO.3573/11**| |**ANNEXURE A12**|**TRUE COPY OF THE JUDGMENT DATED 24.1.2015**| ||**IN OS.NO.536/2011**| |**ANNEXURE A13**|**TRUE COPY OF THE JUDGMENT DATED 14.6.2013**| ||**IN OS.NO.551/2011**| |**ANNEXURE A14**|**TRUE COPY OF THE LETTER DATED 05.3.2015**| ||**WITH ORDER OF THE INSPECTOR OF POLICE.**| 10 Crl.Rev.Pet.No.110 of 2019 **ANNEXURE A15** **CERTIFIED COPY OF THE FINAL REPORT DATED 10.4.2013 SUBMITTED BY THE SUB INSPECTOR OF POLICE, MARARIKULAM POLICE STATION.** **ANNEXURE A16 TRUE COPY OF THE STATEMENT OF RAJESH RECORDED BY THE POLICE.** **ANNEXURE A17 TRUE COPY OF THE STATEMENT OF SARASWATHY AMMA RECORDED BY POLICE.** **ANNEXURE A18 TRUE COPY OF THE STATEMENT OF PAVITHRAN RECORDED BY THE POLICE. ANNEXURE A19 TRUE COPY OF THE SALE DEED NO.413/2009 DATED 09.2.2009 OF MARARIKULAM SRO.** **ANNEXURE A20 TRUE COPY OF THE CONSENT GIVEN BY SARASWATHY AMMA TO THE 1ST PETITIONER REGARDING RIGHT OF WAY.** **ANNEXURE A21 TRUE COPY OF THE PROCEEDINGS OF ORDER SHEET IN CC.NO.995/13.** **ANNEXURE A22 CERTIFIED COPY OF CHARGE FRAMED BY THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA IN CC.NO.995/2013 WITH TYPED COPY.**