Kerala High Court
Sobhana vs State Of Kerala on 24 October, 2016
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938
Crl.Rev.Pet.No. 383 of 2009 ( )
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AGAINST CC 1882/2006 of J.M.F.C.-II, KOLLAM
REVISION PETITIONER(S)/COMPLAINANT:
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SOBHANA, D/O. SAROJINI, KUNNUVILA PUTHEN VEEDU,
EDAVATTATHU CHERI, CHIRAKKARA VILLAGE,, FROM VILAYIL
VEEDU,ASRAMAM CHERI,KOLLAM.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT(S)/STATE & 4TH ACCUSED:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
2. K.V.BHASKARAN NAIR, (LICENSEE)
ADHARAMAZHUTHU OFFICE, NO.QDA 94,KOLLAM,
SUB REGISTRAR OFFICE, (SOUTH)(A4)
FOR R2BYADVS. M/S.R.MOHANA BABU, M.AJITH (KARICODE)
ADV. PUBLIC PROSECUTOR SRI. C.K. PRASAD
AND ADV. SRI. S.K. DEVI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 24-10-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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CRL.R.P.No.383 of 2009
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Dated this the 24th day of October, 2016
O R D E R
The revision petitioner is the complainant in C.C. No. 1882 of 2006 in CMP 8412/2007 on the files of the Court of the Judicial Magistrate of First Class-II, Kollam, who in this revision petition challenges the order of discharge of the 4th accused passed by the court below under Section 245 (2) Cr.P.C.
2. Heard.
3. The prosecution allegation is that the revision petitioner purchased 1= cents of land with a building therein as per sale deed No.2248/86 and another 1 cent of land as per sale deed No. 3855/88 of the Sub Registry Office, Kollam, from the brother of the mother of accused Nos.1 to 3. The 4th accused was a Crl.R.P. No.383/2009
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document writer. The mother and the brother of the mother of accused Nos.1 to 3 obtained 2.5 cents and 4 cents of property respectively as per partition deed No.1182/86 of SRO, Kollam. The accused Nos.1 to 4 with the intention of trespassing into the property of the revision petitioner falsely created the partition deed and on the strength of the said deed, the accused tried to trespass into the property of the revision petitioner and got an injunction order from the court and thereby the accused persons committed the offences under Sections 188, 447, 193, 465 and 468 r/w 34 IPC.
4. The court below found that no offence under Section 188 IPC is attracted in this case. The court below further found that in view of the bar under Section 195 of Cr.P.C, the offence under Section 188 of IPC cannot be taken cognizance of by the court without having a complaint in writing as provided under Section 195 (1) (a) Cr.P.C. In this case, the complaint was not filed by the public servant as provided under Section 195 (1) (a) of Cr.P.C and in the said circumstances, the offence under Section 188 IPC cannot be taken cognizance of by the court as rightly held by the Court below. The court below also correctly found that the offence under Section 193 IPC is also not attracted against the 4th accused as there was no allegation that the 4th accused Crl.R.P. No.383/2009
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intentionally gave false evidence in any stage of the judicial proceeding or fabricated false evidence for the purpose of being used in any stage of a judicial proceeding. That apart, as there was no complaint in writing by the court or by any officer of the Court as mandated under Section 195(1) (b) Cr.P.C., the court cannot take cognizance of the offence under Section 193 IPC. The complaint is also silent regarding the aspect that the 4th accused had forged the partition deed for the purpose of being used it in any stage of judicial proceeding.
5. There is no allegation against the 4th accused that he criminally trespassed into the property. There is also no allegation that the 4th accused had any knowledge about the alleged trespass by the other accused. There is also no allegation that the 4th accused had shared common intention with regard to the alleged trespass by the other accused.
Therefore, the offence under Section 447 IPC is also not attracted against him as correctly held by the court below.
6. The court below further found that the 4th accused had only written the document as per the information furnished by A1 to A3. It is alleged that A4 had written the document. The court below found that the 4th accused was only a scribe, who was not expected to satisfy about the Crl.R.P. No.383/2009
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genuineness of a document like partition deed, apart from the assertion by the parties. In the said circumstances, the court below found that no offence under Sections 465 and 468 IPC was made out against the 4th accused. The court below after going through the averments in the complaint found that the charge on the basis of the averments in the complaint is groundless and in the said circumstances, the court below discharged the accused under Section 245 (2) Cr.P.C. Having gone through the relevant inputs, I do not find any reason to hold that the order impugned suffers from any illegality, impropriety or incorrectness, warranting interference by this Court.
In the result, the revision petition stands dismissed.
Sd/-B.SUDHEENDRA KUMAR, JUDGE al/ani /truecopy/ P.S. toJudge