IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 2672 of 2009 ------------------------------- (CRIME NO. 644/2008 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERRY) PETITIONER(S): PETITIONER ------------------------------------------- SURESH,S/O.PADMANABHAN H.NO.VI/49 7, THERKIL, THEKKUKMKARA, MANALITHARA PO, THRISSUR,KERALA, PIN 680 589. BY ADV. SRI.P.RADHAKRISHNAN ( 1) RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. 2. ASSISTANT ENGINEER IRRIGATION SECTION, VAZHANI. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tga M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2672 OF 2009 ------------------------------------------ Dated 24th September 2009 O R D E R Petitioner is the first accused in crime No.644/2008 of Wadakkancherry police station registered for the offence under Section 379 read with Section 34 of Indian Penal Code. As seen from Annexure-A2 FIR, case was registered, based on Annexure-A1 complaint filed by second respondent Assistant Engineer, Irrigation Section wherein, it is alleged that petitioner is the owner of the property and the trees were cut by the second accused. This petition is filed under Section 482 of Code of Criminal Procedure contending that when Annexure-A1 complaint filed by second respondent, based on which the case was registered shows that the disputed trees were cut from the property of the petitioner, he cannot be prosecuted for an offence under Section 379 of Indian Penal Code. Petitioner also contended that petitioner was not in India at the relevant time and therefore ,in any case he cannot be prosecuted. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRMC 2672/09 2 3. Learned counsel relying on Annexure-A1 complaint argued that when the trees were cut from the property of the petitioner, he cannot be prosecuted for an offence under Section 379 of Indian Penal Code. Learned counsel also argued that Annexure-A3 copy of the passport establish that petitioner was not in India on 6/10/2008, the day on which the trees were allegedly cut and he came to India on 5/9/2008 and he left on 1/10/2008 and in such circumstances, case is to be quashed. 4. Learned Public Prosecutor submitted that reference in Annexure-A1 complaint that trees were cut from the property of the petitioner is only a clerical mistake committed by the second respondent and it is the specific case that trees were cut from the property of the Irrigation Department and in such circumstances, based on the clerical mistake the case cannot be quashed. Learned Public Prosecutor also pointed out that question whether petitioner was in India and whether he instigated the second accused to cut the trees are all matters for investigation and therefore, investigation may not be axed at the initial stage. 5. Annexure-A1 complaint shows that allegation is that six teak trees were cut from the property of the Vazhani Irrigation Department as it is CRMC 2672/09 3 stated that trees standing on the Vazhani Irrigation main canal were unlawfully cut and removed by the second accused. The only case alleged as against the petitioner is that he is the owner of the property and they were cut by second accused. Prima facie, Annexure-A3 copy of passport shows that petitioner was not in India at the time when the trees were cut and removed. In such circumstances, I find no material to proceed against the petitioner at this stage especially when, Annexure-A1 shows that the property belongs to the petitioner. If the property belongs to the petitioner, there cannot be an offence under Section 379 of Indian Penal Code as against the owner of the property. 6. In such circumstances, Annexure-A2 FIR as against the petitioner is quashed. But it is made clear that if, in the course of investigation of the case, any material is received as against the petitioner, the order will not prevent the investigating officer to proceed against the petitioner in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.