IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 Crl.MC.No. 5023 of 2010() ------------------------- CC.666/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR,PALAKKAD .................... PETITIONER(S): ACCUSED ---------------------- 1. MARIA CHARLES, AGED 65 YEARS S/O. LATE GNANAMIRTHAM PILLAI, VKV COLONY, POLLACHI, TAMIL NADU. 2. G. ANTONY, SELVARAJ, AGED 70 YEARS, S/O. LATE GNANAMIRTHAM PILLAI, PAARI NAGAR, BYE PASS ROAD, OLD SUNGAM, COIMBATORE-45. (RTD. ADDL.SUPTD. OF POLICE TAMIL NADU.) 3. DR. PAARI SELVARAJ, AGED 35 YEARS, S/O. ANTONY SELVARAJ, CONSULTANT, ORTHOPEDIC SURGEON PAARI NAGARA, BYE PASS ROAD, OLD SUNGAM, COIMBATORE-45. 4. PUSHPARAJ AGED 60 YEARS, S/O. LATE ARPUTHASWAMY, ST.MARY'S ENGINEERING WORKS, CHATHRAM, PARISAKKAL, KOZHINJAMPARA, PALAKKAD. 5. BALRAJ, AGED 55 YEARS, S/O. LATE ANTHONIMUTHU PILLAI,(LANDLORD) CHATHRAM, PARISAKKAL,KOZHINJAMPARA, PALAKKAD. 6. ROBERT, AGED 45 YEARS, S/O. MICHAELSWAMY, CATHRAM, PARISAKKAL, KOZHINJAMPARA, PALAKKAD. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.RASHMI RAVINDRAN RESPONDENT(S): COMPLAINANTS --------------------------- 1. STATE OF KERLA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. Crl.M.C.No.5023/2010 2 2. SUB INSPECTOR OF POLICE, KOZHINJAMPARA POLICE STATION, PALAKKAD-678555. 3. VIJAYAKUMAR, SUB INSPECTOR OF POLICE, KOZHINJAMPARA POLICE STATION,PALAKKAD-678555. 4. AZEEZ, S/O. UNNIREPPA, IRITTIKKAD, THACHAMPARA, MANNARKKAD TALUK, PALAKKAD-678583. PUBLIC PROSECUTOR SHRI K.J.MOHAMED ANZARI FOR R1 & R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.5023 of 2010 -------------------------------------- Dated this the 3rd day of January, 2011. ORDER This petition is filed under Section 482 of the Code of Criminal Procedure (for short, “the Cr.P.C.”) to quash Annexures-A1, A9 and A11. Respondent No.4, claiming to be care taker of the property involved – 2.90 acres comprised in survey No.381/3 of Vadakarapathy village on behalf of its owner, one Ravoof filed Annexure-A1, complaint to the local police having jurisdiction over the area where the said property is situated alleging that on 30.08.2008 at about 2.45 p.m. while respondent No.4 and his workers were engaged in fencing the said property petitioners trespassed thereto, intimidated respondent No.4 and his workers with death and used obscene words against them. They were pushed down and the fence was demolished. The complaint further averred that there was an order of injunction passed by the learned Sub Judge, Palakkad on I.A.No.128 of 2008 in O.S.No.185 of 2007 against petitioner No.1 trespassing into the said property and that it is in violation of the said order that petitioners committed the above said acts. The police registered case as Crime No.373 of 2008 and after investigation submitted Annexure-A9, final report stating that petitioners committed offences punishable under Sections 143, 147, 447, 427, 294(b) and 506(1) read with Section 149 of the Indian Penal Code. Learned Magistrate took cognizance of the said offences and issued summons to the petitioners who appeared and filed Annexure-A10, application under Sections Crl.M.C.No.5023/2010 2 244 and 245 of the Cr.P.C. seeking their discharge on the ground that no prima facie case is made out. Learned Magistrate has dismissed the application as per Annexure-A11, order observing that on perusal of the first information statement, first information report and the connecting papers as well as the final report along with statement of the witnesses cited by the prosecution, a prima facie case is made out against petitioners for all the offences attributed to them and that there are sufficient materials to presume guilt of petitioners. Learned Magistrate observed that there are no cogent reasons or grounds to hold that charge against petitioners is groundless. Accordingly, Annexure-A10, application was dismissed by Annexure-A11, order. Petitioners seek to quash Annexures-A1 - complaint, A9 - final report and A11 - order referred to above. 2. Learned counsel for petitioners contend that Annexure-A1, complaint and the subsequent proceedings are nothing but an abuse of process of the court in that, there is no material on record to show that either Ravoof or respondent No.4 is in possession and enjoyment of the disputed property and on the other hand, documents produced along with this petition would show that petitioner Nos.1 and 2 have co-ownership right over the disputed property which has been found in favour by the civil court. According to the learned counsel, in the circumstances, allowing the criminal proceedings to continue is nothing but an abuse of process of court and hence intervention by this Court is required under Section 482 of the Cr.P.C. Learned Public Prosecutor submits that Crl.M.C.No.5023/2010 3 materials on record are sufficient to show that a prima facie case is made out against petitioners which alone is required to be considered at this stage. It is contended by learned Public Prosecutor that documents which petitioners might produce in defence in the course of trial are not required to be looked into in this proceeding to quash Annexures-A1, A9 and A11. 3. According to the petitioners, they filed O.S.No.214 of 1985 against one C.J.Jacob and others for partition and other reliefs while the said C.J.Jacob filed O.S.No.50 of 1991. Petitioners and others also filed O.S.No.324 of 1989. Those suits were for a decree for prohibitory injunction. It is contended by learned counsel that by Annexure-A3, judgment O.S.No.214 of 1985 was decreed and a preliminary decree for partition was passed in respect of the property involved in the present case as well as certain other items. That preliminary judgment and decree are under challenge at the instance of the said C.J.Jacob in this Court in A.S.No.593 of 2000. In the meantime the said C.J.Jacob also filed O.S.No.354 of 1989 against petitioner No.1, according to the learned counsel in respect of the said 2.90 acres claiming a decree for prohibitory injunction as if the said C.J.Jacob was in possession and enjoyment of the said property. The civil court passed Annexure-A5, order of temporary injunction, But, the suit was dismissed for default as seen from Annexure-A6, judgment. Annexure-A7 is the possession certificate issued by the Village Officer pressed into service to show that petitioners are in possession of the disputed property. Annexure-A8 is the receipt for payment of land revenue for the said Crl.M.C.No.5023/2010 4 property. 4. At this stage, this Court is concerned with the question whether materials on record revealed a prima facie case so that charge could be framed against petitioners for offences attributed to them. Except in exceptional circumstances, in a proceeding under Section 482 of the Cr.P.C., documents produced by the accused are not required to be looked into for, the said documents might provide a defence for the accused in the course of trial but, are not to be looked into for the purpose of deciding whether a prima facie case is made out against the accused. In the present case, there is the added difficulty that neither Ravoof nor respondent No.4 are parties to the civil suits between the petitioners and others on the one side and C.J.Jacob and others on the other side. It is also the position of law that the judgment of the civil court is not binding on the criminal courts (and vice versa) except for the limited purpose of Section 43 of the Indian Evidence Act. In Kishan Singh v. Gurpal Singh - 2010 (4) KLT SN.2(Case No.3-SC) the Supreme Court has held that criminal prosecution cannot be quashed basing on a finding of the civil court on an issue involved in the criminal proceeding. It is interesting to note that while petitioners relied on Annexure-A7, possession certificate issued by the Village Officer, the Investigating Officer has cited as witness No.11, Village Officer, Vadakarapathy to prove another possession certificate (obviously in support of the prosecution case). In these circumstances, documents pressed into service by the petitioners cannot be looked into at this stage. Crl.M.C.No.5023/2010 5 5. So far as the materials on record for framing charge is concerned, I have gone through Annexure-A9, final report and the exhibits appended thereto. It is based on the said materials as well as the documents produced by the prosecution that the learned Magistrate has concluded that a prima facie case is made out and that prayer for discharge cannot be allowed. Having heard learned counsel for petitioners and the Public Prosecutor and gone through the records I do not find illegality in learned Magistrate holding so. As such, the prayer to quash Annexures-A1, A9 and A11 cannot be accepted. Petition is dismissed. But it is made clear that the observations made in this order shall not in any way affect the defence that petitioners might set up in the trial of the case. THOMAS P.JOSEPH, Judge. cks