THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.No.1313 of 2009 ORAL ORDER: This petition is filed under Section 482 Cr.P.C. seeking to quash proceedings in C.C.No.74 of 2008 on the file of the Judicial Magistrate of First Class-cum-Special Mobile Court at Kakinada, East Godavari district registered for offences punishable under Sections 447, 323 and 506 read with 34 IPC. The petitioners are A1 and A3 to A11 and the second respondent is the complainant in the calendar case. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the calendar case. The case of the complainant is as follows: The complainant filed suit O.S.No.743 of 1987 on the file of the Principal District Munsif, Kakinada and obtained permanent injunction against A2 in respect of the properties scheduled therein. A2 is the son-in-law of A1, A3 is the son of A2, A4 and A5 are the sons of A3, A6 is the son of A1, A7 is the son-in-law of A3, A8 and A9 are the brothers A7 and A10 is the grand son of A2. In view of the grant of permanent injunction, A1 to A9 who are inter-related with each other bore grudge against the complainant and trespassed into the property of the complainant at Kovur village on 31.7.2002 with a common intention to cause wrongful loss and hurt to the complainant and his family members and also tried to construct a wall fixing a gate to it, which the complainant obstructed and requested them not to do so. Then A1 to A9 pelted stones on the house of the complainant and bet the complainant with hands and also kicked him indiscriminately and caused him physical pain and they also threatened him with dire consequences of killing him for objecting their acts. Further, he gave a report to the concerned police at Indirapalem, but no action was taken by the police. Hence he lodged the complaint. It is contended on behalf of A1 and A3 to A11 that A2 is no more and in spite of that, he has been arrayed as such in the complaint and the property in question is only a common passage, for which all of them have right of passage and in fact the complainant filed E.P.No.148 of 2003 in the said suit on the file of the Court of I Additional Junior Civil Judge, Kakinada, in which the Court ordered the arrest of them and subsequently the complainant also filed C.R.P.No.5082 of 2007 to revise the order dated 15.9.2005 made in the said E.P. and it was accordingly allowed by order dated 14.3.2008, but that fact was suppressed by the complainant and the complaint was filed only for the purpose of arresting A1 and A3 to A11 and hence the complaint is not tenable. The point for consideration is whether there are sufficient circumstances to grant the relief as prayed for. It is pertinent to note her that a definite allegation of preventing the complainant from using the property in the said premises is made against A1 to A11. The order passed in C.R.P.No.5082 of 2007 dated 14.3.2008 by this Court reads as under: “On allowing the E.P. the judgment debtors filed C.R.P.No.3034 of 2004 before this Court under Article 227 of the Constitution wherein they have given an undertaking that they are prepared to file an affidavit to the effect that they would not interfere with the suit pathway in terms of the decree. In the light of the said undertaking that revision was disposed of permitting the petitioners therein (judgment debtors) to file an appropriate affidavit or memo on which the court below shall record the same and dispose of the execution petition itself. Accordingly, the judgment debtors filed a memo before the executing court. The learned executing court after recording the undertaking memo disposed of the E.P. without there being any direction to the judgment debtors to clear the pathway for the beneficial enjoyment of the decree holder as per the decree. In view of the same, the impugned docket order dated 15.9.2005 is set aside and the lower court shall pass appropriate orders for removing the encroachments if any, made by allowing the pathway for the beneficial enjoyment of the decree holder.” This order and other circumstances of the case amply provide that A1 to A11 involved in preventing the complainant from making use of the property, as per law and in the E.P. the arrest of them was ordered for violating the decree. Even supposing that it is a pathway and all of them including the complainant got right to make use of it, they (A1 to A11) got no right to prevent the complainant from making use of the pathway, particularly by virtue of the decree passed. Further, i n KISHAN SINGH v. GURPAL SINGH AND OTHERS[1], the Supreme Court held as follows: “Thus in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal case it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration.” So, when there is civil and criminal liability in respect of an issue, the party whose rights are infringed can file a criminal case or civil case or both as per law for the purpose of getting necessary reliefs and for punishing those who infringed his rights. Further, unless necessary trial of the case is conducted, the complicity of A1 and A3 to A11 cannot be decided in toto. Hence, there are no merits in the petition to quash the impugned proceedings. Further, if A2 died, necessary steps are to be taken for abatement insofar as A2 is concerned. For the foregoing reasons, the criminal petition is dismissed. ________________________ G.KRISHNA MOHAN REDDY, J Dated: 13-12-2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.No.1313 of 2009 13.12.2011 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.No.1313 of 2009 Date: 13th December, 2011 Between: Ithapudi Veera Venkanna and others. .. Petitioner/A1 & A3 to A11 And The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad and another. .. Respondents [1] AIR 2010 SC 3624