THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2208 of 2008 Date: 02.11.2011 Between: Ch.S.K.D.V.S.Prasad and others. ..... Petitioners/accused 1 to 3. AND The State of A.P. rep by its Public Prosecutor, High Court of A.P., Hyderabad and another. .....Respondent/Defacto-complainant. The Court made the following : THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.2208 of 2008 JUDGMNET: The petitioners are A1 to A3. They seek for the quashing of proceedings in Crime No.63 of 2008 on the file of Chintalapudi Police Station. 2. A complaint was lodged against A1 to A3 on 12-04-2008 by the 2nd respondent. The accused statedly have committed the offences under Sections 447, 352, 424 and 506 (2) read with Section 34 IPC on 22-03-2008. Contending that the offence was prima facie not made out, Sri Nimmagadda Satyanarayana, learned counsel for the accused contended that further proceedings in the case deserve to be quashed. 3. It is the case of the 2nd respondent that on 22-3-2008, the accused trespassed into the lands owned by the 2nd respondent in Survey Nos.53/1, 59/1 and 59/2- B, removed the fencing and took away as many as 9 boundary stones. The complaint subsequently was lodged on 12-04-2008, which was registered as F.I.R in Crime No.63 of 2008. 4. The learned counsel for the accused drew my attention to the orders of the learned Junior Civil Judge, Chintalapudi in I.A.No.417 of 2008 in O.S.No.193 of 2007. It is a petition under Order 39 Rules 1 & 2 laid by the 1st accused against R2 and three others. Through orders dated 20-09-2007, exparte ad-interim injunction was granted in favour of the 1st accused. Inter alia, the learned Junior Civil Judge, Chintalapudi considered that the 1st accused prima facie established his possession apart from his title to the property. 5. It is the contention of the learned counsel for the accused that the possession of the 1st accused thus was recognized by a competent Civil Court and that the question of the accused including A1 trespassing into the lands in the possession of A1 would not arise. He further submitted that the offence under Section 447 IPC was the main offence and the other offences alleged against the accused under Sections 352, 434 and 506(2) IPC read with Section 34 IPC are ancillary to the main offence under Section 447 IPC. His contention is that once the accused are found not guilty for the offence under Section 447 IPC, they are bound to be acquitted for the offences under the remaining sections as well. I am wholly in agreement with the contention of the learned counsel for the accused to the extent that the main offence alleged against the accused is under Section 447 IPC. I also agree that if the accused are found not guilty for the offence under Section 447 IPC, the remaining offences alleged against them would not stand. Consequently, the question whether the second respondent and the prosecution prima facie made out the offence under Section 447 IPC arises for consideration. 6. A competent Civil Court granted exparte ad-interim injunction in favour of the accused on 20-09-2007 considering that the accused established prima facie case. The offence in the present case occurred on 22-03-2008. The question of the accused trespassing into the lands when they are in possession would not arise. The offence against the accused would not be prima facie made out in this background. 7. However, the exparte ad-interim injunction obtained by the accused did not have a quietus before the learned Junior Civil Judge, Chintalapudi. Sri K. Chidambaram, learned counsel for the 2nd respondent drew my attention to the orders in CMA No.38 of 2008, dated 06-10-2009 on the file of the Principal District Judge, West Godavari District at Eluru. The learned Principal District Judge, West Godavari passed orders in CMA.No.38 of 2008 arising from the orders in I.A.No.418 of 2007 in O.S.No.193 of 2007 on the file of the Junior Civil Judge, Chintalapudi. The learned Principal District Judge allowed the appeal and dismissed the temporary injunction granted by the trial Court in favour of the 1st accused herein. The learned Principal District Judge held that A1 has failed in establishing his prima facie possession over the disputed property. Thus the orders in I.A.No.418 of 2007 in O.S.No.193 of 2007, dated 20-09-2007 were reversed by the orders in CMA No.38 of 2008, dated 06-10-2009. 8. The question is which order takes precedence in determining the prima facie case against the accused. Indeed, A1 obtained exparte ad-interim injunction. The learned trial Judge inter alia held that A1 established prima facie possession. However, the learned Principal District Judge subsequently held that A1 prima facie failed in establishing his possession. Thus, the order of the learned trial Judge dated 20-09-2007 and subsequent order of the learned trial Judge in granting temporary injunction in favour of the 1st accused stood merged with the orders of the learned Principal District Judge, West Godavari in CMA No.38 of 2006, dated 06-10-2009. The effective order consequently is that the Court held that the 1st accused failed to establish his prima facie possession. 9. Once it is pointed out that the 1st accused did not prima facie establish his possession, the accusations that the accused trespassed into the lands of the 2nd respondent and committed acts of violence becomes a question of fact and not ipso facto improbable circumstances. The basic contention of the accused is that as the accused were enjoying the interim order, they could not have trespassed into the lands of the second respondent. Hence this interim order stood vacated, the complaint after second respondent takes primacy over the interim order in favour of A1 which subsequently stood vacated. 10. It is also contended by the learned counsel for the accused that the very complaint is inherently improbable. I am afraid that it is a question of fact which can be decided by the trial Court. I, therefore, do not consider that the compliant resulting into Crime No.63 of 2008 was not so improbable as to quash the same. It is for the accused to establish their innocence before the trial Court, after full pledged trial. So far as this petition is concerned, it is found to be devoid of merits and is accordingly dismissed. _________________________ JUSTICE K.G.SHANKAR Date:02.11.2011 mrb