Thayambath Narayani and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **Crl.MC.No.3394 OF 2012** **CC 436/2010 DATED 22-08-2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYANNUR** ## **PETITIONERS/ACCUSED:** |**1**|**THAYAMBATH NARAYANI**| |---|---| ||**AGED 64 YEARS**| ||**W/O. NARAYANAN, PANAPPUZHA AMSOM, KAITHAPPURAM,**| ||**CHENGALAM, KANNUR DISTRICT.**| |**2**|**THAYAMBATH CHANDRAN**| ||**AGED 44 YEARS**| ||**S/O. NARAYANAN, PANAPPUZHA AMSOM, KAITHAPPURAM,**| ||**CHENGALAM, KANNUR DISTRICT.**| |**3**|**THAYAMBATH SASIKUMAR**| ||**AGED 41 YEARS**| ||**NARAYANAN, PANAPPUZHA AMSOM, KAITHAPPURAM,**| ||**CHENGALAM, KANNUR DISTRICT.**| |**4**|**THAYAMBATH PRAKASAN**| ||**AGED 42 YEARS**| ||**S/O. NARAYANAN, PANAPPUZHA AMSOM, KAITHAPPURAM,**| ||**CHENGALAM, KANNUR DISTRICT.**| **BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER** **Crl.M.C.No.3394 of 2012** ## **:-2-:** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** - **1 STATE OF KERALA (SUB INSPECTOR OF POLICE, PAYANNUR POLICE STATION, CRIME NO. 83/2009) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 ARAYAMBATH GANGADHARAN S/O. SREEDEVI, PANAPPUZHA AMSOM, KAITHAPPURAM DESOM, MATHAMANGALAM BAZAR P.O., PAYYANNUR VIA, KANNUR DISTRICT-680014.** - ***ADDL SAVITHRI E.V.** - **R3 AGED 51 YEARS, W/O. DECEASED ARAYAMBATH GANGADHARAN, ARAYAMBATH HOUSE, CHENGALAM, P.O. MATHAMANGALAM, KANNUR, PIN-670306** - ***ADDL SAGAR E.V** - **R4 AGED 29 YEARS, S/O. DECEASED ARAYAMBATH GANGADHARAN, ARAYAMBATH HOUSE, CHENGALAM, P.O. MATHAMANGALAM, KANNUR,PIN-670306** - ***ADDL GOKUL.E.V** - **R5 AGED 24 YEARS, S/O. DECEASED ARAYAMBATH GANGADHARAN, ARAYAMBATH HOUSE, CHENGALAM, P.O. MATHAMANGALAM, KANNUR. PIN-670306** **(*ADDITINOAL R3 TO R5 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R2, AS PER ORDER DATED 5.8.2020 IN CRL.MA 1/20)** **BY ADV. SRI.V.N.RAMESAN NAMBISAN BY ADV. SRI.S.S.ARAVIND R3-5 BY ADV. M.V.AMARESAN ADV.SRI.K B UDAYAKUMAR, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.M.C.No.3394 of 2012** ## **:-3-:** ## **Dated this the 10[th] day of August, 2020** ## **O R D E R** The petitioners are accused Nos.1 to 4 in Annexure-3 final report in C.C.No.436/2010 on the file of JFCM-Payyannur, charge sheeted for offences punishable under Sections 188, 447, 506(i) read with Section 34 of IPC. During the course of the trial of the case, the second respondent who is the de facto complainant filed C.M.P.No.3161/2012 before the learned Magistrate seeking an order directing further investigation in the crime under Section 173(8) of Cr.P.C. contending that the investigation conducted was defective and unfair. 2. The petitioners took strong exception to the request and contended that the de facto complainant has no locus standi to file a petition seeking further investigation and further there was no justifying reason also for making such a ## **Crl.M.C.No.3394 of 2012** ## **:-4-:** request. The learned Magistrate after considering the contentions of both sides was of the view that interest of justice demanded further investigation into the matter and accordingly impugned Annexure-6 order was passed on 22.8.2012 allowing C.M.P.3161/2012. This order is challenged in this Crl.M.C. invoking the inherent power of this Court under Section 482 of Cr.P.C. 3. I heard the learned counsel for the petitioners, the learned counsel for additional respondents 3 to 5 who were impleaded as the legalheirs of the second respondent who died during the pendency of this proceeding and also the learned Public Prosecutor. 4. The contention of the learned counsel for the petitioners is that the de facto complainant has no locus standi to ask for further investigation though the court in justifiable circumstances may be empowered to exercise suo motu ## **Crl.M.C.No.3394 of 2012** ## **:-5-:** power in this regard. In this respect, he canvassed a decision reported in **Amrutbhai Shambhubhai Patel** - **v. Sumanbhai Kantibhai Patel & ors. (AIR 2017 SC** **774)** . On facts also, it is contended that ordering of further investigation was quite unnecessary inasmuch as the investigation was conducted in a fair and proper manner. 5. On the other hand, the learned counsel for the respondents 3 to 5 submitted that the persons who witnessed the incident of trespass and criminal intimidation were not cited as witnesses in Annexure-3 final report. Though persons who were eye witnesses to the incident were questioned, they were suppressed. In short, the submission is that Cws.2 and 3 cited in the final report are actually eye witnesses to the occurrence but they were cited only to prove the scene mahazar. This contention found favour with the learned Magistrate and further investigation was accordingly ordered. ## **Crl.M.C.No.3394 of 2012** ## **:-6-:** 6. While examining the legality of the impugned order, the very maintainability of the prosecution in respect of offence punishable under Section 188 of the IPC cannot be lost sight of. The petitioners are accused of offence under Section 188 on the premise that they violated the order of status quo passed by the learned Munsiff, Payyannur, in O.S.No.106/2008, by committing trespass upon the disputed property on 26.1.2009. Even accepting the allegation to be true also, the prosecution under Section 188 IPC cannot lie in the light of the legal bar under Section 195 of the Cr.P.C. This provision provides that no court shall take cognizance of an offence punishable under Section 188 of IPC except on a complaint in writing made by the concerned court or the officer. Indisputably, no complaint has been lodged by the concerned court seeking initiation of prosecution under Section 188 of IPC. Therefore, if at all the ## **Crl.M.C.No.3394 of 2012** ## **:-7-:** allegation of trespass is proved also, prosecution under Section 188 IPC is quite unsustainable under law. 7. I do not agree with the proposition canvassed before me that a de facto complainant has no locus standi to move for further investigation of the crime under Section 173(8) of the Cr.P.C. in any circumstance. It was held by the Honourable Apex Court in **Vinubhai Haribhai Malaviya v. State of Gujarat (2019(5) KHC 352)** that in appropriate cases where the investigation is faulty or is alleged to be unfair, the court has power to order further investigation suo motu in exercise of power under Section 173(8) of the Cr.P.C. despite there being no request made by the Investigating Officer. This power of the Court could be justifiably exercised when a legitimate grievance is brought to the notice by a complainant in a criminal case. Therefore, the view taken by the learned Magistrate ## **Crl.M.C.No.3394 of 2012** ## **:-8-:** that she has necessary power to order further investigation under law, cannot be said to be wrong. 8. The prosecution case presented in Annexure- 1 complaint against the petitioners is that on 26.1.2009 at 10 a.m., they criminally trespassed into the property in the possession of the de facto complainant and dumped soil etc. When the de facto complainant interfered and sought to prevent the mischief, he was subjected to criminal intimidation. It is stated that the trespass was committed in breach of an order of status quo which was in force in O.S.No.106/2008 instituted by the second respondent before Munsiff's Court, Payyannur. 9. The grievance of the de facto complainant is to the effect that the persons who witnessed the trespass and criminal intimidation, were not cited as witnesses and further, the persons who really ## **Crl.M.C.No.3394 of 2012** ## **:-9-:** witnessed the occurrence were cited only as mahazar witnesses. I am not inclined to examine this contention on merits. The sustainability of charge under Section 447 IPC, so far as the present case is concerned, largely depends on the question whether the status quo order in force was violated or not. The violation itself is a disputed question which is to be determined by the civil court where the dispute is pending adjudication. Generally speaking, when the parties raise rival claims over possession of a land under dispute in a civil suit, a bona fide claim of right to possession is a good defence to an accused to a criminal charge under Section 447 IPC. This aspect does not appear to have struck the mind of the lower court when it chose to order further investigation. As regards the offence of criminal intimidation, the learned counsel for the petitioners submitted that the allegations in Annexure-1 complaint as well as the ## **Crl.M.C.No.3394 of 2012** ## **:-10-:** statements of the witnesses are not sufficient to make out offence punishable under Section 506(i) IPC. It is contended that the statement of the de facto complainant is not sufficient to make out the alleged act of intimidation as punishable since intention to cause alarm to him cannot be read from the allegation. I am not going into the merit of this contention since any view if expressed by me, is likely to prejudice the parties. 10. After having heard both sides and also having examined the materials on record, I am of the opinion that this is not a fit case where further investigation of the crime ought to have been ordered. The impugned Annexure-6 order dated 22.8.2012 is therefore liable to be set aside. In the result, this Crl.M.C. is allowed quashing the impugned order of the learned Magistrate directing further investigation. The learned Magistrate will proceed with the trial of ## **Crl.M.C.No.3394 of 2012** ## **:-11-:** C.C.No.436/2010 and decide the case on merits in accordance with law untrammelled by any of the observations made by me above. It is made clear that any discussion made in this order by me was solely intended for the limited purpose of deciding the legality of order dated 22.8.2012 passed by the learned Magistrate. The learned counsel for the additional respondents 3 to 5 made a request that right to examine witnesses invoking Section 311 of the Cr.P.C. may be reserved to them during the course of the trial of the case. I also make it clear that I have not expressed anything in this order intending to foreclose any such right of the respondents, if it is so available to them in the facts of the case. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/ **Crl.M.C.No.3394 of 2012** ## **:-12-:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE-1 A TRUE COPY OF THE COMPLAINT DATED 21.2.2009 BY THE 2ND RESPONDENT ANNEXURE-2 A TRUE COPY OF THE FIR IN CRIME NO.83/2009 OF PAYYANNUR POLICE STATION ANNEXURE-3 TRUE COPY OF THE CHARGE SHEET DATED 24.3.2010 AND MEMO OF EVIDENCE ANNEXURE-4 A TRUE COPY OF CMP NO.3161/2012 FILED BY THE 2ND RESPONDENT ANNEXURE-5 A TRUE COPY OF THE COUNTER FILED BY THE ACCUSED ANNEXURE-6 A TRUE COPY OF THE ORDER DATED 22.8.2012 IN CMP NO.3161/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR ANNEXURE-7 TRUE COPIES OF THE STATEMENT MADE BY THE 2ND RESPONDENT BEFORE THE INVESTIGATING OFFICER.**