Kerala High Court
Rev.Fr.Freddy Solomon vs State Of Kerala on 15 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941
Crl.MC.No.248 OF 2019(A)
CRIME NO.496/2016 OF Pozhiyoor Police Station , Thiruvananthapuram
PETITIONERS/ACCUSED NOS.1 TO 7:
1 REV.FR.FREDDY SOLOMON, AGED 48 YEARS
VICAR, ST. PETER'S CHURCH,KOCHUPALLY,
KARUMKULAM VILLAGE, PULLUVILA DESOM,
NEYYATTINKARA 695 121.
2 ALBERT,
RESIDING AT PALLAMPURAYIDOM SAJITHBHAVAN,
POZHIYOOR DESOM, KULATHUR VILLAGE,
THE SECRETARY, CHURCH COMMITTEE,
ST. MARY MAGDALENCE CHURCH,
PARUTHIYOORTHURA NEYYATTINKARA 695 121.
3 RAJU @ JOHN,
RESIDING AT HOUSE NO. 114,
JOHN PAUL NAGAR, POZHIYOOR DESOM,
KULATHUR VILLAGE, THE TREASURER, CHURCH COMMITTEE,
ST. MARY MAGDALENE CHURCH, PARUTHIYOORTHURA ,
NEYYATTINKARA 695 121
4 FRANCIS,
RESIDING AT THYVILAKAMJINU HOUSE,
POZHIYOOR DESOM, KULATHUR VILLAGE,
NEYYATTINKARA 695 121.
5 ADV. CHRITHUDAS,
RESIDING AT PANIKKARTHOTTAM SAJITHANIVAS,
POZHIYOOR DESOM, KULATHUR VILLAGE,
PRESIDENT, CHURCH COMMITTEE,
ST. MARY MAGDALENE CHURCH,
PARUTHIYOORTHURA NEYYATTINKARA 695 121
6 CHISTADIMA,
RESIDING AT OOTTUKUDIKKARAVARSHA HOUSE,
POZHIYOOR DESOM, KULATHUR VILLAGE,
MEMBER, CHURCH COMMITTEE, ST. MARY MAGDALENE CHURCH
PARUTHIYOORTHURA, NEYYATTINKARA 695 121.
Crl.MC.No.248 OF 2019(A) 2
7 YESUDAS @ CHADAYAN,
RESIDING AT MULLASSERYVALLIVILAKAMPURAYIDATHIL,
POZHIYOOR DESOM, KULATHUR VILLAGE,
MEMBER, CHURCH COMMITTEE, ST. MARY MAGDALENE
CHURCH,
PARUTHIYOORTHURA, NEYYATTINKARA 695 121.
BY ADVS.
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SI OF POLICE,
POZHIYUR POLICE STATION,
REPRESENTED THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
2 THE DEPUTY SUPERINTENDENT OF POLICE, CBCID,
THIRUVANANTHAPURAM 695 001.
3 TITUS,AGED 56 YEARS
S/O. THIYONS, RESIDING AT RESHMA VILLA,
PANICKER THOTTAM VILLAGE, POZHIYOOR P.O,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 513.
R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
R3 BY ADV. SRI.K.B.PRADEEP
SRI. NICHOLAS JOSEPH,SPL G.P. (CRIMINAL CASES)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
15.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.248 OF 2019(A) 3
ORDER
This Crl.M.C is filed to quash the proceedings in Annexure A1-FIR in crime No.496/2016 of Pozhiyur police station, for the offences punishable under Sections 120B, 427, 447, 379, 188 r/w. Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC').
2. The petitioners herein are the accused in crime No.496/2016 of Pozhiyur police station. The 3 rd respondent is the defacto complainant. The 3 rd respondent herein was alleged to be a tenant who has been in occupation of a shop room owned by ST:Maty's Magdalene church, Paruthiyoor, Thiruvananthapuram. When the tenancy was expired, the 3rd respondent obtained an ad-interim injunction by filing O.S.No.461/2016, restraining the church authorities from evicting him forcibly from the shop room. The prosecution allegation is that on 10.04.2016, at about 10.30 am, the accused along with 30 unidentifiable persons violated the injunction order, trespassed into the leasehold premises wherein they stole fishing equipment worth Rs.8 lakh from the aforesaid shop room.
Crl.MC.No.248 OF 2019(A) 4
3. Heard the learned counsel for the petitioners, learned Public Prosecutor and the learned counsel for the 3 rd respondent.
4. As per Section 195(1)(a) of Cr.P.C , no court shall take cognizance of any offence punishable under Section 172 to 188 of the IPC, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. In the instant case, the bar under Section 195(1)(a) of the Cr.P.C interdicts the Court from taking cognizance of an offence under Section 188 as admittedly, there is no complaint filed by the public servant concerned. Hence, prosecution charge under Section 188 of the IPC is liable to be quashed. I do so.
5. So far as Section 120B, 427, 447, 379 r/w. Section 34 of the IPC are concerned, the learned Public Prosecutor, on instructions, submitted that investigation is almost complete and the police is ready to submit final report before the court having jurisdiction.
6. The allegation is that during the subsistence of a valid tenancy, in violation of the injunction order, church authorities trespassed into the alleged leasehold premises and Crl.MC.No.248 OF 2019(A) 5 stolen away the fishing equipments worth Rs.8,00,000/- from the aforesaid shop room. This is a matter to be investigated by the police. At this stage, it is not just and proper to interfere with the investigation of the offences punishable under Sections 120B, 427, 447, 379 r/w. Section 34 of IPC against the petitioners in exercise of power under Section 482 of the Cr.P.C. Hence the prayer is declined to the aforesaid extent.
7. The learned counsel for the petitioners submits that in case the police files a final report against the petitioners, the petitioners may be given an opportunity to challenge the final report in accordance with law. It is within the realm of the petitioners to take appropriate action, if so advised.
In view of the above, the Crl.M.C is disposed of as indicated herein above.
Sd/-
N.ANIL KUMAR
ajt JUDGE
Crl.MC.No.248 OF 2019(A) 6
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.
496/16 OF POZHIYUR POLICE STATION DATED 09- 06-2016 ANNEXURE A2 A TRUE PHOTOCOPY OF THE PRIVATE COMPLAINT DATED 23-05-2016 ANNEXURE A3 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 07-12-2016 BETWEEN THE INVESTIGATING OFFICER AND THE INSPECTOR OF POLICE PARASSALA ANNEXURE A4 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 09- 10-2018 IN WPC NO 40141 OF 2017 ANNEXURE A5 A TRUE PHOTOCOPY OF THE REFER REPORT DATED 24-03-2018 ANNEXURE A6 A TRUE PHOTOCOPY OF THE JUDGMENT OF THE JUDGMENT DATED 07-09-2018 IN W.A NO. 1399 OF 2018