IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 Crl.MC.No. 2811 of 2011() ------------------------------------- CC.NO.156/2009 of JUDL.MAGISTRATE OF FIRST CLASS, HARIPAD CRIME NO.66/2007 OF THRIKKUNNAPUZHA POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------------------------- VINOD, S/O. SOMAN, MANGALASSERY VEETTIL, KIZHAKKEKARATHEKKUM MURIYIL, THRIKKUNNAPUZHA. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(S)/ DE-FACTO COMPLAINANT ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THRIKUNNAPUZHA POLICE STATION, THRIKUNNAPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031 2. V. BABU, AGED 55 YEARS, S/O. LATE VASUDEVAN, CHITHIRA, KIZHAKKEKARA SOUTH, VALIYAPARAMBU.P.O, KARTHIKAPALLY, ALAPPUZHA - 690 513. R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR R2 BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.T.A.ABDUL RASHEED SRI.K.H.ASHARAF THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/09/2011, ALONG WITH CRMC NO. 2691 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC NO.2811/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX 1 COPY OF THE FINAL REPORT IN CRIME NO.66/07 OF THE THRIKKUNNAPUZHA POLICE STATION (WITH ENGLISH TRANSLATION) ANNEX 2 COPY OF THE ORDER IN C.M.A.NO.14/2007 ANNEX 3 COPY OF THE FIR CRIME NO.65/07 OF THE THRIKKUNNAPUZHA POLICE STATION (WITH ENGLISH TRANSLATION) ANNEX 4 COPY OF THE REPLY FILED BY THE DE-FACTO COMPLAINANT IN THE PROSECUTION PETITION(WITH ENGLISH TRANSLATION) ANNEX 5 COPY OF THE STAY ORDER IN CRL.M.C.NO.2691/07 IN CRIME NO.65/07 OF THRIKKUNNAPUZHA POLICE STATION. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts N.K.BALAKRISHNAN, J ----------------------------------------- Crl.M.C. No. 2811 of 2011 & Crl.M.C. No. 2691 of 2007 ------------------------------------------ Dated this the 28th day of September, 2011. O R D E R Petitioner in Crl.M.C. No.2811/2011 is the accused in Crime No.66/07 which is now pending before JFCM - 1, Harippad as C.C. 156/09. The offences alleged against the petitioner are under Sections 441, 294(b), 506(ii) of IPC. The incident in that case was stated to have taken place at 14/04/2007. The allegation is that the accused committed tress pass in to the property of the de facto complainant at the time and place mentioned above by driving his maruti car bearing No. KL-29-949 through Mavelikkara - Thonikkadavu road. Further allegation is that when the de facto complainant therein (Baby, S/o. Vasudevan) shown as witness No.1 questioned the act of the accused, the accused threatened CW1 showing iron rod and abused him and also caused criminal intimidation putting him in fear of death. The learned counsel for the petitioner submits that Crl.M.C. No. 2811 of 2011 2 Crl.M.C. No. 2691 of 2007 the allegations are false and that there are sufficient materials to proceed against the accused. It is also seen from the records that there is a civil dispute between the de facto complainant and the accused and so further proceedings in C.C. 156/09 has to be quashed, it is argued. 2. It is true that there is a civil dispute between the parties. There is a counter case pending against de facto complainant mentioned above and two others which was the subject matter of Crime No.55/07. It is submitted that the final report in that case was not filed. Criminal M.C. No.2691/07 is the application filed by the accused in Crime No.65/2007 to quash the FIR in that crime. I have gone through the records in both cases. The submission made by the learned counsel for the petitioner that further proceedings in CC 156/09 has to be quashed is found to be unmerited. The acceptability or otherwise of all the materials collected by the investigating officer is to be considered by the learned Magistrate after trial of the case. Crl.M.C. No. 2811 of 2011 3 Crl.M.C. No. 2691 of 2007 Since there is a Counter Crime as Cr. No. 65/07 that case also has to be disposed of simultaneously along with this CC 156/07. 3. The learned counsel for the petitioners in Criminal M.C. No.2691/07 would argue with vehemence that the offence alleged against the petitioners in the FIR registered by the police as Crime No.65/07 is under Section 341 IPC. The allegation therein was that when the complainant therein was driving a car and when he entered the property, which is stated to be the subject matter of the civil suit, the car was restrained by the petitioners from proceeding further. The accused were stated to have obstructed the complainant from taking the car forward and thus he had to go back. 4. The learned counsel for the petitioner in the Crl.M.C. No.2691/11 would submit that the explanation to Sec.339 of IPC makes it clear that the obstruction of a private way over a land or water which a person in good Crl.M.C. No. 2811 of 2011 4 Crl.M.C. No. 2691 of 2007 faith believe himself to have a lawful right to obstruct is not an offence within the meaning of Section 339. It is true that if the petitioners have lawful right to obstruct then it may not attract the offence of wrongful restraint which is punishable under Section 341 IPC. The complainant therein contends that he has got the right to take his vehicle through the way/property and the petitioners have no right to obstruct the same. That is a question of fact to be decided in the trial after the evidence is adduced by the parties. It is contended by the complainant there that the suit was decreed in his favour. Therefore the argument advanced by the learned counsel for the petitioners that further proceedings in Crime No.65/07 has to be quashed also is found to be devoid of merit. In view of what is stated above, both these Criminal. M.C's are dismissed. Since the case and the counter case are to be tried and disposed of simultaneously by the same court, the investigating police officer shall see that the final Crl.M.C. No. 2811 of 2011 5 Crl.M.C. No. 2691 of 2007 report is filed in Crime No.65/2011 at the earliest as otherwise the disposal of CC. No.156/09 will remain stalled. N.K. BALAKRISHNAN, JUDGE smvd