IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.MC.No. 2396 of 2008(F) -------------------------------------- (CRIME NO.395/2007 DTD. 04/11/2007 OF MARARIKULAM POLICE STATION) .............. PETITIONERS/ACCUSED: ------------------------------------ 1. JOSEPH , ARACKAL HOUSE, POLLATHAI,ALAPPUZHA. 2. STEPHEN, ARACKAL HOUSE, POLLATHAI,ALAPPUZHA. 3. JANAMMA, ARACKAL HOUSE, POLLATHAI,ALAPPUZHA. 4. THAMPI, ARACKAL HOUSE, POLLATHAI,ALAPPUZHA. 5. PONNAPPAN, ARACKAL HOUSE, POLLATHAI,ALAPPUZHA. BY ADV. SRI.T.M.ABDUL LATHEEF. RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, MARARIKKULAM POLICE STATION, ALAPPUZHA. 3. UMAYAMMA, D/O.HARIDAS, THAZCHATHAYIL VEEDU, KALAVOOR VILLAGE, ALAPPUZHA. CRL.M.C. NO. 2396/2008-F: 4. HARIDAS, S/O.VAVA CHELLAPPAN, NADUVILECHIRA (THATZHTHAYIL), POLLETHAI, KALAVOOR VILLAGE, ALAPPUZHA. R3 BY ADV. SMT.SHERLY S.A. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2396 OF 2008 =========================== Dated this the 27th day of October,2010 ORDER Petitioners are the accused and respondents 3 and 4 the de facto complainants in C.C.281/2008 on the file of Judicial First Class Magistrate Court-I, Alappuzha, taken cognizance for the offence under section 341 read with section 34 of Indian Penal Code on Annexure A5 final report. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that respondents 3 and 4 have no right to pass through the property of the petitioners and the allegations raised in the final report do not constitute the ingredients of an offence under section 341 of Indian Penal Code and in such circumstance, continuation of the proceedings is only an abuse of process of the court. Crl.M.C.2396/2010 2 Petitioners contended that respondents 3 and 4 instituted O.S.806/2007 before Munsiff Court, Alappuzha claiming a right of way and by Annexure A7 judgment, the said suit has already been dismissed and in such circumstances, continuation of proceedings is only an abuse of process of the court. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Annexure A5 final report shows that prosecution case is that petitioners in furtherance of the common intention, closed the way available to respondents 3 and 4 at about 8 p.m. on 2.11.2007 and thereby wrongfully restrained them from using the way. Annexure A7 judgment with Annexure II copy of the plaint shows that in O.S.806/2007, respondents 3 and 4 set up a right of easement by prescription over the disputed way in this case. After recording the evidence, learned Munsiff found that respondents 3 and 4 did not establish a right of way. Therefore it is clear that respondents 3 Crl.M.C.2396/2010 3 and 4 have no right of way through the property of the petitioners. 4. The only prosecution case is that petitioners in furtherance of the common intention caused obstruction to that way by blocking the way. When respondents 3 and 4 have no right to use the property of the petitioners and have no right of way, petitioners cannot be prosecuted for the offence under section 341 of Indian Penal Code. The continuation of the proceedings is only an abuse of process of court. Petition is allowed. C.C.281/2008 on the file of Judicial First Class Magistrate-I, Alappuzha is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006