IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.MC.No. 460 of 2011() ----------------------------------- CRRP.40/2006 of I ADDL. SESSIONS COURT, KOLLAM CC.224/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM .................... PETITIONER(S): COMPLAINANT ---------------------------------------------- SHOUKATHAIL, S/O. ALIYARUKUNJU, NIZAR MANZIL, MALAVATTOOR.P.O, VARKALA FROM MULMOOTTIL VEEDU, THAZHUTHALA CHERRY, ADICHANALLUR, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): STATE / ACCUSED 1 TO 4 ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KHALID, S/O. ALIYARKUNJU, MULMOOTTIL VEEDU, THAZHUTHALA CHERRY, ADICHANALLUR, KOLLAM - 691 530. 3. KAMARDUHEN, S/O. ALIYARKUNJU, MULMOOTTIL VEEDU, THAZHUTHALA CHERRY, ADICHANALLUR, KOLLAM - 691 530. 4. SALIM, S/O. ALIYARKUNJU, MULMOOTTIL VEEDU, THAZHUTHALA CHERRY, ADICHANALLUR, KOLLAM - 691 530. 5. SHARAFUDHEEN, S/O. ALIYARKUNJU, MULMOOTTIL VEEDU, THAZHUTHALA CHERRY, ADICHANALLUR, KOLLAM - 691 530. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.460 of 2011 -------------------------------------- Dated this the 4th day of March, 2011. ORDER The complainant in C.C.No.224 of 2002, according to the courts below was not able to make out a case against respondent Nos.2 to 5 which if un- rebutted would warrant their conviction has approached this Court with this petition under Section 482 of the Code of Criminal Procedure (for short, “the Code”) to quash the order passed by the trial and revisional court. Petitioner filed a private complaint in the court of Judicial First Class Magistrate-I, Kollam on 27.01.1999 alleging that on 22.01.1999 at about 7.45 p.m. respondent Nos.2 to 5 with the assistance of the local Sub Inspector (he was discharged for want of sanction under Section 197 of the Code) trespassed into the shoprooms where he was running stationary business as a tenant under his father, Aliyar Kunju, evicted him forcibly and locked the said room. Respondent Nos.2 to 5 are said to have removed all articles belonging to the petitioner from the said rooms on 27.01.1999. Petitioner alleged that respondent Nos.2 to 5 and the Sub Inspector committed offences punishable under Sections 380, 427 and 447 of the Indian Penal Code. Learned Magistrate took cognizance of the offences alleged against respondent Nos.2 to 5 and recorded evidence under Section 244 of the Code. PWs 1 to 3 were examined and Exts.P1 to P10 were marked on the side of petitioner. Respondent Nos.2 to 5 also marked their documents. Learned Magistrate found that no case is made out against respondent Nos.2 to Crl.MC No.460/2011 2 5 which if un-rebutted would warrant their conviction. Learned Magistrate also referred to the civil dispute which existed between the petitioner and his father and held that petitioner was not able to show that he was in possession of the shoprooms on the date of alleged trespass. Respondent Nos.2 to 5 were discharged under Section 245(1) of the Code. Petitioner challenged that order in revision before the learned Additional Sessions Judge, Kollam in Crl.R.P.No.40 of 2006. Learned Sessions Judge while concurring with the view taken by learned Magistrate observed that petitioner did not produce his licence to show that he was in possession of the shoprooms as on the date of alleged incident. Learned Sessions Judge accepted the conclusion arrived at by the learned Magistrate and dismissed the revision. Hence this petition. It is argued by the learned counsel that the materials produced by the petitioner in the trial court are sufficient to show that a case has been made out against respondent Nos.2 to 5 which if un-rebutted would warrant conviction. It is contended by learned counsel that at this stage what is required is only a prima facie satisfaction. I have heard learned Public Prosecutor in this regard. 2. The allegation being one of trespass, mischief and theft, petitioner had to show prima face that as on the date of alleged incident he was in possession of the shoprooms. It is not disputed that respondent Nos.2 to 5 and the petitioner are the children of Aliyar Kunju to whom the shoprooms belonged. Crl.MC No.460/2011 3 It is the case of petitioner that as a tenant under his father he was conducting stationary business in the said shoprooms and that on 22. 01.1999 respondent Nos.2 to 5 with the assistance of the Sub Inspector forcibly trespassed, evicted him and locked the room. Ext.D7 is the release deed executed by the petitioner in favour of his father relinquishing his share in the property and Ext.D8 is an agreement executed by petitioner stating that he received `.90,000/- by way of consideration from his father for execution of the release deed. Learned counsel contends that even as per Ext.D7, petitioner could continue his business in the shoprooms. 3. It is not disputed that there was civil litigations between petitioner and his father. Ext.P1 is the copy of complaint filed by the petitioner and Ext.P2, copy of written statement by respondent Nos.2 to 5 and others. Exts.P5 and P6 are copy of the reports prepared by the Advocate Commissioner. Learned counsel would contend that the Advocate Commissioner inspected the shoprooms on 15.01.1999 and found petitioner engaged in business in the said rooms. Ext.P9 is the photograph of the shoprooms (photographer was not examined). It has come in evidence that petitioner's father filed a civil suit against petitioner on 21.01.1999 and obtained interim order of injunction against petitioner trespassing into the shoprooms. That order was passed on 22.01.1999. Ext.D3 is the copy of order of injunction. Ext.D2 is the copy of written statement filed by the petitioner in that case. It is not disputed that the Crl.MC No.460/2011 4 exparte interim order of injunction was made absolute by the civil court on 16.02.1999 after hearing petitioner also. According to the learned counsel the order of injunction was confirmed for the reason that petitioner did not ask for repossession. From the above materials, trial court found that case of the petitioner that as on 21.01.1999 he had physical possession of the shoprooms cannot be accepted. 4. It is true that petitioner has produced in this proceeding his licence obtained on 12.01.1999 and certain other documents. But those documents are prior to 21.01.1999, the alleged date of trespass. That, the father filed a suit against petitioner on 21.01.1999 claiming that he is in possession of the shoprooms, petitioner is attempting to trespass into it and that on 22.01.1999 accepting that contention the civil court passed an interim order of injunction which was confirmed on 16.01.1999 after hearing petitioner, that the said order is not shown to be under challenge prima facie shows that petitioner was not in possession of the shoprooms on 21.01.1999. 5. According to the learned counsel the Sub Inspector had no business to interfere with the order of injunction in the absence of any order passed by the civil court directing him to render assistance. Assuming so, the Sub Inspector is not a party to the present proceeding since he has already been discharged for want of sanction under Section 197 of the Code. Trial court found and revisional court confirmed that petitioner did not show a case which if un- Crl.MC No.460/2011 5 rebutted would warrant conviction of respondent Nos.2 to 5. Having heard learned counsel for petitioner and considering the relevant circumstances of the case I do not find reason to interfere under Section 482 of the Code. Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks