Kerala High Court
Niranath Tomy @Thomas vs State Of Kerala on 12 March, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 12TH DAY OF MARCH 2014/21ST PHALGUNA, 1935
CRL.MC.NO. 2185 OF 2012 (C)
---------------------------------------
[IN C.C. NO.744/2011 ON THE FILE OF J.F.C.M. NO.II, PERAMBRA]
..............
PETITIONERS/ACCUSED:
------------------------------------
1. NIRANATH TOMY @THOMAS, AGED 43,
S/O. JOSEPH @ OUSEPH, NIRANATH HOUSE, KINALUR,
KOYILANDI, KOZHIKODE DISTRICT.
2. NIKHIL TOMY,
S/O. NIRANATH TOMY @ THOMAS, NIRANATH HOUSE, KINALUR,
KOYILANDI, KOZHIKODE DISTRICT.
BY ADVS.SRI.M.R.VENUGOPAL,
SMT.DHANYA P.ASHOKAN.
RESPONDENTS/COMPLAINANT :
-----------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-31.
2. MATHEW,
S/O. JOSEPH, NERANATH HOUSE, PADIKKAL VAYAL,
THALAYAD, KOZHIKODE-673 574.
R1 BY PUBLIC PROSECUTOR SRI. GITHESH.R,
R2 BY ADV. SRI.SUNNY MATHEW.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 12-03-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Prv.
CRL.M.C. NO.2185/2012- C:
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A: CERTIFIED COPY OF PRIVATE COMPLAINT C.M.P.NO.3324/11
DT. 15/09/11 FILED BEFORE J.F.C.M-II, PERAMBRA.
ANNEXURE B: CERTIFIED COPY OF THE F.I.R. DT. 27/09/11 IN
CRIME NO.523/2011 OF BALUSSERY POLICE STATION.
ANNEXURE C: CERTIFIED COPY OF CHARGE SHEET IN CRIME NO.523/11 OF
BALUSSERY POLICE STATION.
ANNEXURE D: CERTIFIED COPIES OF THE STATEMENTS OF THE WITNESSES
IN CRIME 523/11 OF BALUSSERY POLICE STATION.
ANNEXURE E: TRUE COPY OF THE JUDGMENT DT. 27/03/08 IN
R.S.A. NO.413/2006 OF HON'BLE COURT.
ANNEXURE F: TRUE COPY OF COMMISSION REPORT DT. 20/08/11 IN
O.S. 81/09 BEFORE THE SUB COURT, QUILANDY.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
P.D. RAJAN, J.
========================
Crl.M.C.No.2185 of 2012
--------------------------------------------
Dated this the 12th day of March, 2014
ORDER
Petitioners approached this Court by filing a petition under Section 482 of the Code of Criminal Procedure to quash Annexure B FIR in Crime No.523 of 2011 of Balussery Police Station which was filed under Sections 447, 427 and 506(1) read with Section 34 IPC and the final report (Annexure C) pending before the Judicial First Class Magistrate Court-II, Perambra invoking inherent jurisdiction.
2. Petitioners are first and second accused in a complaint which was filed by the first respondent in the Judicial First Class Magistrate Court-II, Perambra and the same was forwarded to Balussery police for investigation under Section 156 (3) Cr.PC. After getting Annexure A complaint, Balussery police registered Annexure B FIR and after investigation, filed Annexure C final report Crl.M.C.No.2185/12 -2- before the Judicial First Class Magistrate Court-II, Perambra. In the circumstance, petitioners approached this Court to quash Annexure A, B and C on the ground that since the possession of the property is not finally decided by the civil court and no offence under Section 447 IPC will attract. Petitioners have right in the disputed property and if trial is proceeded, it is only an abuse of process of court.
3. The allegation in Annexure A was that on 21.8.2011 at 4.00 p.m., petitioners trespassed into the property possessed by the second respondent and they destroyed the plastic shades of 250 rubber trees and intimidated them with a knife and thereby sustained a loss of 8000. In the circumstance, the second respondent filed Annexure A before Judicial First Class Magistrate Court-II, Perambra. In order to invoke inherent jurisdiction, petitioners have to prove that if the orders were not issued it will cause some violation of the Crl.M.C.No.2185/12 -3- right. According to Section 482 Cr.PC, the High Court has power to use inherent jurisdiction to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure ends of justice.
4. Apex Court in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] The following principles in relation to the exercise of the inherent power of the High Court have been followed ordinarily and generally, almost invariably, barring a few exceptions:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party.
(2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Crl.M.C.No.2185/12 -4-
5. The learned counsel appearing for the petitioner contended that Annexure A complaint was filed only on 15.9.2011. The incident was occurred on 21.8.2011. Annexure E shows that there was a civil case between the petitioners and the second respondent. The reason for the delay explained in Annexure A was that the second respondent waited for a compromise too. Therefore, he could not file such a complaint earlier. Annexure A, B & C show that prima facie a case is made out against the petitioners, it is admitted that there is a civil suit pending before court and the possession of the property is not finally decided by the civil court. Both parties claim title in their property as per the partition deed entered by them. If that be the position, the records with regard to the possession at the time of occurrence is very relevant.
6. In order to attract Section 447 IPC, the prosecution has to prove that whoever enters into or upon property in the possession of another with intent to Crl.M.C.No.2185/12 -5- commit an offence or to intimidate himself or to annoy any person in possession of such property or if any person having lawfully entered into or upon such property and unlawfully remains therewith intend thereby to intimidate himself or annoy any such person or with intent to commit any offence is said to commit criminal tresspass. The disputed property is the family property of the first petitioner and second respondent. The boundaries of the properties were not properly fixed. There arise the dispute between them. In such a situation, the possession at the time of the offence is more relevant which is a matter of evidence.
7. In the commission report, Annexure F in paragraph 6, it is observed that the present report of the Taluk Surveyor is essential to finally decide the possession of the property. For determine that aspect the lie of the property and the report of the Taluk Surveyor are also relevant documents for a civil court to Crl.M.C.No.2185/12 -6- decide the possession. That be the position, if the case is prolonged, it will create difficulty for the criminal court to decide the matter of possession at the relevant time. Therefore, in criminal case for deciding criminal tresspass the possession of the property at the relevant time is material. It is the responsibility of the prosecution to adduce evidence with regard to the possession of the property. That be the position, when prima facie case is made out, I am of the opinion that this is not a fit case to invoke inherent jurisdiction at this stage and to quash Annexure A, B & C.
8. The learned counsel appearing for the petitioner submitted two decisions - 2001 Crl.Law Journal 3464 and 1959 Crl. Law Journal 1093 in support of his argument. In both cases accused challenged the conviction under Sections 447, 441 and 427 IPC before higher courts. While considering Section 482 Cr.P.C., the observation made in those two cases are not applicable. On the other Crl.M.C.No.2185/12 -7- hand, the parameters mentioned under Section 482 Cr.PC. is relevant.
9. The State of Haryana v. Bajanlal (1992 SCC Crl.
426) are relevant accepting the principles laid down by the Apex Court. The dictum laids as follows:-
"(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-
cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155 (2). (5) Where the allegations are so absurd Crl.M.C.No.2185/12 -8- and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance."
10. The learned counsel appearing for the petitioner submitted that the second petitioner is a college going student. Since the matter is pending in the lower court for a long time, the learned Magistrate is directed to expedite the trial and dispose the case within six months Crl.M.C.No.2185/12 -9- after receiving a copy of this judgment. Petitioner is at liberty to take all defence in support of his case and if any application is filed, the learned Magistrate is directed to consider the same and dispose it in accordance with law.
There is no merit in this petition and dismissed accordingly.
Sd/-
P.D. RAJAN JUDGE kvr/ /True copy/ P.S. to Judge