Kerala High Court
Aneesh vs State Of Kerala on 2 December, 2019
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941
Crl.MC.No.8505 OF 2019(C)
AGAINST THE ORDER/JUDGMENT IN CC 70/2018 OF JUDICIAL MAGISTRATE OF
FIRST CLASS ,KOLENCHERRY
CRIME NO.2197/2017 OF Puthencruz Police Station , Ernakulam
PETITIONER/FIRST ACCUSED:
ANEESH
AGED 36 YEARS
S/O MATHAI, POOTHAKUZHIYIL HOUSE,
VADAVUCODE.P.O, ERNAKULAM DISTRICT.
BY ADVS.
SRI.V.PHILIP MATHEW
SRI.E.RADHAKRISHNAN
SRI.JEPH JOSEPH
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 THOMAS T PETER,
S/O.THOMAS, THOMMANKUDIYIL HOUSE,
PANCODE, IRUPPACHIRA BHAGOM, PUTHENCRUZ, ERNAKULAM
DISTRICT-682310.
OTHER PRESENT:
SRI C. S. HRITHWIK SR. P.P
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
02.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC 8505/2019
-2-
O R D E R
Dated this the 2nd day of December 2019 Petitioner is the first accused in CC No.70/2018 on the files of the Judicial First Class Magistrate's Court, Kolencherry for having allegedly committed offences punishable under Section 435 read with Section 34 IPC. The second accused is no more and the case against him has abated.
2. The learned counsel appearing for the petitioner submits that the overt act attributed to the petitioner is that he had poured some liquid and consequent to that, the second accused is the one who had set fire to a carpet on a stage in their Church premises, erected for Christmas celebrations. It is also submitted by the learned counsel for the petitioner that the pouring of the liquid alone would not ignite the carpet resulting an offence under Section 435 IPC. It is only to the specific overt act of the second accused who had set fire to the carpet, an offence under Section 435 IPC is attracted. Therefore, the petitioner is entitled to get the proceedings against him quashed under Section 482 Cr.PC.
3. It is further submitted by the learned counsel Crl.MC 8505/2019 -3- for the petitioner that there was a factional fued between the Orthodox and Jacobite factions of the Church and a civil suit was pending. Second accused is the plaintiff in that suit. That suit has been allowed by the civil court vide Annexure-4 judgment. Taking all these circumstances into consideration, the learned counsel for the petitioner attempts to impress upon this Court that no offence under Section 435 IPC for committing mischief would lie against the petitioner.
4. Heard both sides.
5. The allegation is that the petitioner had poured some liquid on the carpet consequent to which it was ignited by the second accused. Offence alleged is under Section 435 IPC read with Section 34 IPC. It is in furtherance of common intention that the alleged act of mischief by fire is committed by the petitioner and the second accused. Even if the role of the petitioner is limited to pouring of some liquid and the actual ignition of fire was done by the second accused, by virtue of Section 34, act done in furtherance of common intention would rope in both the accused, irrespective of the overt acts on their part. However, this is too early to decide whether there is evidence of common intention and whether the act of the petitioner by itself would constitute an offence under Section 435 Crl.MC 8505/2019 -4- IPC. The petitioner is at liberty to take all these defences available to him before the trial court at the time of trial or even at the time of framing of charge, and even pray for a discharge.
6. I find that this is not a case fit for exercise of the extra ordinary jurisdiction of this Court to quash the proceedings under Section 482 Cr.PC, for the reasons mentioned above.
7. The learned counsel for the petitioner also prays that he may be exempted from personal appearance. Such prayer for exemption from personal appearance is to be considered by the trial court and not by this Court. The trial court can consider whether he is entitled to be exempted from personal appearance, on such application being made.
The Criminal M.C. is dismissed with the above observations.
Sd/-
ASHOK MENON JUDGE jg Crl.MC 8505/2019 -5- APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 COPY OF FIR IN CRIME NO.2197/2017 ANNEXURE 2 COPY OF THE FINAL REPORT IN CRIME NO.2197/2017 ANNEXURE 3 COPY OF PLAINT IN O.S.NO.20/2013 ANNEXURE 4 COPY OF THE JUDGMENT DATED 28.09.2019 PASSED IN O.S.NO.20/2013.