Kerala High Court
Abu Faisal vs State Of Kerala on 23 February, 2015
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939
Crl.MC.No. 1992 of 2014
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CRIME NO. 26/2013 OF KADAKKAL POLICE STATION,
KOLLAM DISTRICT
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PETITIONERS/ACCUSED NOS. 1 TO 6 :
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1 ABU FAISAL, AGED 37 YEARS,
S/O.KASIM KUNJU, P K HOUSE, MANIYANMUKKU, ANAPPARA,
KADAKKAL P O, KOTTARAKKARA TALUK, KOLLAM DIST, PIN-691536
2 MUHAMMED IQBAL, AGED 39 YEARS,
S/O.KASIM KUNJU, P K HOUSE, VALAVUPACHA P O,
KOTTARAKKARA, KOLLAM DIST-691559
3 ABDUL GAFOOR, AGED 44 YEARS,
S/O.KASIM KUNJU, P K HOUSE, VALAVUPACHA P O,
KOTTARAKKARA, KOLLAM DIST-691559
4 SHAJAHAN, AGED 52 YEARS,
S/O.SHAMSUDHEEN, SHAN MANZIL, MOONUMUKKU P O, PANGODU,
THIRUVANANTHAPURAM DIST, PIN-695609
5 SALEENA, AGED 32 YEARS,
W/O.ABU FAISAL, P K HOUSE, MANIYANMUKKU , ANAPPRA,
KADAKKAL P O, KOTTARAKKARA TALUK, KOLLAM DIST, PIN-691536
6 SULAIHABEEVI, AGED 45 YEARS,
W/O.SHAJAHAN, SHAN MANZIL, MOONUMUKKU P O, PANGODU,
THIRUVANANTHAPURAM DIST, PIN-695609
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.MANOJ RAMASWAMY
SMT.SANJANA R.NAIR
RESPONDENTS/COMPLAINANT & STATE :
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1. STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM, 31
Crl.MC.No. 1992 of 2014 ()
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2. NIZARUDEEN, AGED 56 YEARS,
S/O.MUHAMMED MAIDEEN , ANI COTTAGE, VALAVUPACHA,
CHIRAVOOR, CHITHARA VILLAGE, KOTTARAKKARA-691559
R1 BY PUBLIC PROSECUTOR SRI.C.S.HRTHWICK
R2 BY ADV. SMT.M.R.JAYALATHA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 15-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
bp
Crl.MC.No. 1992 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES :
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ANNEX A1:- TRUE COPY OF THE PLAINT IN OS NO 321 OF 2012
ANNEX A2:- TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST
PETITIONER IN OS NO 321 OF 2012
ANNEX A3:- TRUE COPY OF THE PLAINT IN OS NO 47 OF 2013
ANNEX A4:- TRUE COPY OF THE FIR NO 26 OF 2013 DTD 5/1/2013
ANNEX A5:- TRUE COPY OF THE CHARGE SHEET NO 493 OF 2013
RESPONDENT'S ANNEXURES :
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ANNEXURE R2(a): COPY OF THE BASIC TAX RECEIPT DATD 5/5/2015.
ANNEXURE R2(b): COPY OF POSSESSION CERTIFICATE DATD 25/9/2012.
ANNEXURE R2(c): COPY OF THE RECEIPT ISSUED BY KUMMIL GRAMA PANCHAYATH
DATED 23/2/2015.
ANNEXURE R2(d): COPY OF THE RECEIPT ISSUED BY KERALA WATER AUTHORITY
DATED 5/5/2015.
ANNEXURE R2(e): COPY OF THE INVOICE ISSUED BY THE BHARATH SANCHAR
NIGAM LIMITED
ANNEXURE R2(f): COPY OF THE COMPLAINT SUBMITTED BY THE FIRST PETITIONER
TO THE SUPERINTENDENT OF POLICE RURAL KOLLAM DATED
27/10/2012.
ANNEXURE R2(g): COPY OF THE RELEVANT PAGES OF FIRST INFORMATION REPORT
IN CRIME NO. 1389/2012 5/11/2012.
ANNEXURE R2(h): COPY OF THE INFORMATION ISSUED TO THE PETITIONER UNDER
THE RIGHT TO INFORMATION ACT DATED 12/1/2016.
//TRUE COPY//
P.A. TO JUDGE
bp
[CR]
B. KEMAL PASHA, J.
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Crl.M.C.No.1992 of 2014
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Dated this the 15th day of February, 2018
ORDER
The petitioners are accused Nos.1 to 6 in C.C.No.1173/2017 of the Judicial First Class Magistrate's Court, Kadakkal, based on Annexure-A5 final report in Crime No.26/2013 of the Kadakkal Police Station, for the offences under Sections 143, 147, 451, 188 and 427 read with 149 IPC. Disputes were pending between the petitioners and the defacto complainant. According to the petitioners, the defacto complainant is a money lender. It is the case of the petitioners that the 1st petitioner happened to borrow an amount of Rs.15 Lakhs from the defacto complainant. Subsequently, just as an arrangement, the property and the building in question were transferred to the defacto complainant by the 1st petitioner, through a sale deed. Crl.M.C.No.1992 of 2014 :2 :
2. Challenging the sale deed, the 1st petitioner filed a civil suit before the Subordinate Judge's Court, Kottarakkara through Annexure-A3 complaint as O.S.No.47/2013. The defacto complainant had also filed O.S.No.321/2012 before the Subordinate Judge's Court, Kottarakkara against the 1st petitioner herein. An order of temporary injunction was passed in O.S.No.321/2012.
3. The allegation is that the defacto complainant was in possession of the building and property, and in his absence the petitioners formed themselves into an unlawful assembly and trespassed into the property and building by smashing the locks of the building. After committing house trespass, it is alleged that the locks of all the rooms in the building were also destroyed and forced open, which resulted in a wrongful loss of Rs.15,000/- to the defacto complainant.
4. According to the learned counsel for the petitioners, the offence under Section 188 IPC is not legally sustainable through the final report filed by the police. The argument seems to be correct in view of the specific bar contained in Section 195(1)(a)(i) Cr.P.C. The further Crl.M.C.No.1992 of 2014 :3 : argument is that when the other offences, which are shown as distinct offences, have been committed along with the offence under Section 188 IPC, the said offences are incorporated with a view to make devices for escaping from the clutches of Section 195(1)(a)(i) Cr.P.C., and therefore, all those offences also could not have been taken cognizance of by the court below, as decided in Basir-Ul-Huq v. State of West Bengal [AIR 1953 SC 293(A)].
5. The question to be considered here is whether the other offences alleged are dependent on the offence allegedly committed under Section 188 IPC. It is a mixed question of law and facts. The same has to be elicited through evidence. The present stage is too premature to conclude that the other distinct offences alleged are solely dependent on the offence under Section 188 IPC. Therefore, this is not a fit case wherein a premature termination of the prosecution proceedings can be ordered.
In the result, this Crl.M.C. is allowed in part and the offence under Section 188 IPC incorporated in Annexure-A2 final report is quashed. The petitioners are at liberty to take Crl.M.C.No.1992 of 2014 :4 : up all these contentions before the court below at appropriate stage, either at the stage of Section 239 Cr.P.C., if that stage is not over, or during trial, as the case may be. As far as practicable, the court below shall grant exemption to the petitioners from personal appearance.
Sd/-
B.KEMAL PASHA, JUDGE sd