IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.MC.No. 500 of 2007() ------------------------ CC.106/2006 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER: ACCUSED: -------------------- 1. SEENA AJITH, W/O.AJITH KUMAR, AMBUJALAYAM VEEDU, MUTTADA, KESAVADASAURAM, THIRUVANANTHAPURAM. 2. AJITH KUMAR, S/O.APPU PILLAI, AMBUJALAYAM VEEDU, MUTTADA, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SMT.SHIRMILA. C.S. SRI.MAHESH ANANDAKUTTAN RESPONDENTS: ------------- 1. MOHANDAS, S/O.JANARDHANA THAMPI, T.C.15/584, UDARASIROMANI ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. ANANDAMAYI, W/O.MOHANDAS, T.C.15/584, UDARASIROMANI ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. 3. STATE OF KERALA REPRESENTED BY PUBLIC PRROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R.1,2 SRI.PIRAPPANCODE V.S.SUDHIR FOR R.1,2 PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.500 of 2007 ------------------------------------- Dated this the 21st day of August, 2008 ORDER Petitioners face indictment as accused 1 and 2 in a prosecution for offences punishable under Sections 143, 147, 148, 427 and 447 r/w 149 I.P.C. The crux of the allegations against the petitioners, a couple, is that they, on 14.04.05, along with 10 others, who have not been identified, trespassed into the property of the wife of the defacto complainant in Trivandrum city situated on the east of the Udarasiromani road and bounded by all sides by compound walls. It is alleged that the petitioners along with others had trespassed into the property which was in the settled possession of the defacto complainant with culpable and contumacious intention to assert a right over a portion of the property over which the defacto complainant allegedly had exclusive title and possession. 2. A crime was registered as Crime No.122 of 2005 on the basis of the complaint promptly lodged by the 1st respondent, who is the husband of the 2nd respondent, who in turn, is the owner in possession of the property. Investigation was conducted by the police and final report has been filed by the Investigating Officer. Cognizance has been taken and Crl.M.C. No.500 of 2007 2 proceedings are pending as C.C.No.106 of 2006 before the Chief Judicial Magistrate, Trivandrum. 3. The petitioners have come to this Court with a prayer that powers under Section 482 Cr.P.C may be invoked to quash the prosecution against them. It is prayed that the extraordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C may be invoked to bring to premature termination the undeserved, vexatious and mala fide prosecution initiated against the petitioners. 4. According to the learned counsel for the petitioners, the petitioners have exclusive title and possession over a portion of the property which the defacto complainant claims, the 1st accused having acquired title over that property under Annexure-1 sale deed dated 31.03.2005. It is the case of the defacto complainant that the 1st accused has derived no title under that document and that it is a document created for the purpose of vexatious assertion of a right over the property exclusively in the possession of the defacto complainant bounded on all sides by compound walls. 5. Investigating Officer conducted a detailed investigation. The scene mahazar prepared indicates that the defacto complainant was in exclusive possession of an item of Crl.M.C. No.500 of 2007 3 property bounded on all 4 sides by compound walls. It was further seen by the Investigating Officer that there were factual details available at the scene perceived by him and reported in the scene mahazar that there was an attempt to demolish partly the boundary wall on the north and south of the property. It is the case of the defacto complainant that the attempt of the petitioners was to bring into existence with mala fide intent an eastern compound wall to make it appear that the petitioners had rights over a portion of the property in the possession of the defacto complainant. The attempt to put up such an eastern boundary wall was resisted by prompt intervention of the defacto complainant and other persons of the locality and that is why the petitioners had to beat a hasty retreat. There is no compound wall on the east at all. The assertion of the existence of the compound wall on the east which was made earlier is now not made at all. Parties have approached the civil court and O.S.No.756 of 2005 filed by the 1st petitioner on 11.04.05 and O.S.No.647 of 2005 filed by the defacto complainant on 18.05.2005 are pending before the civil court. 6. I have heard the learned counsel for the petitioners and the defacto complainant as also the learned Public Prosecutor. I have anxiously considered all the relevant inputs Crl.M.C. No.500 of 2007 4 available. At this early state of the proceedings, I shall not embark on a detailed discussion on the acceptability of the allegations or the credibility of the data collected. Assertions and counter assertions have been made by the rival contestants in this proceedings as also in the civil proceedings which are pending between the parties before the civil court. I need only mention that I am not persuaded to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C to quash the proceedings against the petitioners. In coming to this conclusion, I take note of the crucial inputs available from the scene mahazar which shows that there is no eastern compound wall in existence which allegedly separates the property in the possession of the defacto complainant from the property over which the 1st accused claims to have acquired possession and title recently as per Annexure-1 document dated 31.03.2005. This crucial input persuades me to hold that, at any rate, it is not necessary now to quash the proceedings against the petitioners. The court below in the course of proceedings before it will have to consider all relevant inputs and come to an authentic conclusion on the basis of the materials, if any, present as to whether the defacto complainant was in possession of the entire property bounded on all sides by the compound walls or whether Crl.M.C. No.500 of 2007 5 the petitioners herein were in actual possession of any portion of the property bounded by such compound walls as per Annexure- 1 document dt.31.03.05. That crucial and vital question cannot, at any rate, be attempted to be resolved now at the present stage and with the available inputs in this proceedings under Section 482 Cr.P.C. 7. This Crl.M.C is, in these circumstances, dismissed. I may hasten to observe that I have not intended to express any final opinion on the acceptability of the rival assertions and claims of the contestants. I have only chosen to take the view that powers under Section 482 Cr.P.C do not now deserve to be invoked. At the appropriate stage, the petitioners can claim relief of premature stoppage of proceedings under Section 258 Cr.P.C or acquittal at later stages. (R.BASANT, JUDGE) rtr/-