Kerala High Court
Latha Mohanan vs State Of Kerala on 8 August, 2017
Author: B. Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939
Crl.MC.No. 6444 of 2014 ()
---------------------------
CC 1360/2012 of J.M.F.C., THIRUVALLA
--------------
PETITIONER(S)/ACCUSED:
---------------------
1. LATHA MOHANAN
D/O.CHELLAMMA, AGED 45 YEARS, VADAKKEKKOOTTU VEEDU,
THALAYAR, KUTTOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT.
2. SANIL KUMAR V.K., AGED 44 YEARS,
S/O.LATE KESAVA KURUP, VADAKKEKOOTTU VEEDU, THALAYAR,
KUTTOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.SANTHOSH G. PRABHU
SRI.S.KANNAN
SMT.A.ASWATHY
SRI.K.JANARDHANA SHENOY
RESPONDENT(S)/COMPLAINANT AND DE-FACTO COMPLAINANT:
---------------------------------------------------
1. STATE OF KERALA
REPRESENTED BY THE SI OF POLICE,
THIRUVALLA POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
2. BALAKRISHNA KURUP, AGED 65 YEARS,
S/O.C.N.KUTTAN PILLAI, VALLITHOTTATHU ROAD,
THALAYAR, KUTTOR, THIRUVALLA-689101.
R2 BY ADV. SRI.M.T.SURESHKUMAR
R1 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 6444 of 2014 ()
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE 1 : TRUE COPY OF THE PLAINT DT.21-5-2012 IN OS 63/2012 ON
THE FILES OF HONOURABLE SUB COURT, THIRUVALLA.
ANNEXURE 2 : TRUE COPY OF THE REPORT DT.4-6-2012 OF ADV.COMMR.IN IA
590/2012 IN OS 63/2012 ON THE FILES OF THE
HONOURABLE SUB COURT, THIRUVALLA.
ANNEXURE 3 : TRUE COPY OF THE FIR DT.20-11-2012 IN CC 1360/2012 ON
THE FILES OF JFCM, THIRUVALLA.
ANNEXURE 4 : TRUE COPY OF THE FINAL REPORT DT.30-11-2012 IN CC
1360/2012 ON THE FILES OF HONOURABLE JFCM,
THIRUVALLA.
ANNEXURE 5 : TRUE COPY OF THE SITE MAHAZER DT.20-11-12 OF THE SUB
INSPECTOR OF POLICE, THIRUVALLA POLICE STATION
FILED BEFORE THE JFCM, THIRUVALLA IN CC 1360/12.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
STK
B. SUDHEENDRA KUMAR, J.
--------------------------------
Crl.M.C. No.6444 of 2014
----------------------------------
Dated this the 8th day of August, 2017
O R D E R
The petitioners are accused in C.C.No.1360/2012 on the files of the court below. The offences alleged are the offences under Sections 447, 294(b) and 427 r/w Section 34 IPC.
2. The prosecution allegation can be briefly stated as follows:-
On 19.11.2012 at about 2 pm, the petitioners trespassed into the property in which the defacto complainant was cultivating colocasia and banana and cut one bunch of banana and uprooted 30 colocasia plants. On seeing the incident, the wife of the defacto complainant questioned the petitioners. Then the petitioners uttered abusive words against the wife of the defacto complainant. They had also taken the banana and colocasia to their house.
Crl.M.C. No.6444 of 2014 -: 2 :-
3. The petitioners have filed this Crl.M.C. praying for quashing the final report and further proceedings against the petitioners in the above said case.
4. Heard both sides.
5. The learned counsel for the petitioners has submitted that the property under dispute is still in possession of the second petitioner and that the defacto complainant had absolutely no possession over the said property and in the said circumstances, the offence under Section 447 and 427 IPC would not be attracted. The learned Public Prosecutor has fairly conceded that no document could be produced by the defacto complainant to prove the possession of the defacto complainant over the property from where the banana and colocasia were taken by the petitioners.
6. The second respondent, who is the defacto complainant, had a contention that the said property is in possession and ownership of the sister of the mother of the second respondent. However, no material is available Crl.M.C. No.6444 of 2014 -: 3 :- before the court to prove that the said property is in the possession of the sister of the mother of the second respondent. It has been admitted that civil case is pending before Sub Court, Thiruvalla as O.S.63/2012 for a declaration that the sale deed executed in favour of the sister of the mother of the second respondent is null and void and for consequential injunction. The Sub Court granted an interim order of injunction in favour of the petitioners, submitted at the Bar. It has been submitted by both sides that the petitioners also produced tax receipt in respect of the property before the Sub Court in O.S.63/2012. There is absolutely no material before the court to show that the second respondent is having any manner of possession over the property involved in this case. Since there is no material before the court to indicate that the second respondent has possession over the property, there cannot be any criminal trespass as provided under Section 441 Cr.P.C. and consequently, the offence under Section 447 IPC is not attracted. Crl.M.C. No.6444 of 2014 -: 4 :- Admittedly, the property does not belong to the second respondent. There is also no material to indicate that the second respondent is in possession of the said property. In view of the above reasons, the offence under Section 427 IPC is not attracted in this case. Since there is no material to prove that the petitioners caused damage to the property of the second respondent, the offence under Section 427 IPC is not attracted.
7. In order to attract the offence under Section 294
(b) IPC, the words must be lascivious or appeal to the prurient interest or its effect or the effect of any one of its items, if taken as a whole, must be to tend to deprave and corrupt persons as provided under Section 292 IPC. Since the words used were not specifically stated by the second respondent and the said words are not available with the materials collected by the prosecution, it cannot be said that the petitioners used any obscene word as provided under Section 292 IPC, so as to attract the offence under Section 294(b) IPC.
Crl.M.C. No.6444 of 2014 -: 5 :-
8. In view of the above reasons, no successful prosecution against the petitioners can be sustained. Therefore, no purpose will be served even if the prosecution against the petitioners is permitted to be continued. In the said circumstances, I am inclined to quash the final report and further proceedings against the petitioners in C.C.No.1360/2012 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. Accordingly, I order so.
In the result, this Crl.M.C. stands allowed.
Sd/-
B. SUDHEENDRA KUMAR, JUDGE STK //TRUE COPY// //P.A. TO JUDGE// //True co