IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Crl.MC.No. 2989 of 2009() ------------------------- CC.642/2008 of JUDL.MAGISTRATE OF FIRST CLASS , ETTUMANUR .................... PETITIONER(S): ACCUSED: ----------------------- 1. MATHEW THOMAS, S/O.THOMAS, PALLIKIZHAKKETHIL, KAIPUZHA, KOTTAYAM DISTRICT. 2. SABU, S/O.THANKAPPAN, PALLIPARAMBIL KOTTARATHIL HOUSE, KAIPUZHA, KOTTAYAM DISTRICT. 3. GOPALAKRISHNAN, S/O.NARAYANAN, VATTATHARA HOUSE, NEENDUR, KOTTAYAM DISTRICT. 4. MURALEEDHARAN, S/O.RAMANKUTTY, KARIKKATTUPURATHU, NEENDUR, KOTTAYAM DISTRICT. 5. SIVADAS @ KUNJUMON, S/O.NARAYANAN, SMART WOOD INDUSTRIES, KAIPUZHA, KOTTAYAM DISTRICT. 6. SUNIL, S/O.RAJAPPAN, PUTHANPARAMBIL HOUSE, NEENDUR, KOTTAYAM DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ADVOCATE GENERAL'S OFFICE, HIGH COURT OF KERALA. 2. ST.GEORGE FORONA CHURCH, KAIPUZHA REPRESENTED BY ITS KAIKKARAN SRI.P.C.JACOB, S/O.P.J.CHACKO, ONAMTHURUTH KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR SRI.M.J.THOMAS FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.2989 OF 2009 =========================== Dated this the 16th day of October,2009 ORDER Petitioners are the accused and second respondent the de facto complainant in C.C.642/2008 on the file of Judicial First Class Magistrate Court taken cognizance by the learned Magistrate for the offence under sections 143,149 and 188 of Indian Penal Code. Prosecution case is that when an order of the Appellate Authority, Alappuzha (Land Reforms) in A.A.91/2005 restraining first petitioner's mother from cutting or removing trees from 1 acre 22.75 cents in sy. No.264/1 R.S. No.124/10 was in force petitioners formed themselves into an unlawful assembly with the common object of removing the teak tree cut by the petitioners on 18.7.2005 and in furtherance of the common object removed the cut tree in KL5760/3 Van belonging to the fourth petitioner and thereby committed the offences. This petition is filed under section 482 of Code of Criminal Procedure to quash the case contending that subsequently entire disputes were settled with the second respondent and in such Crl.M.C..2989/2009 2 circumstances, it is not in the interest of justice to continue the prosecution. 2. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 3. Learned counsel appearing for the second respondent submitted that mother of the first petitioner had claimed tenancy right over 1 acre and 22.75 cents of land in resurvey No.124/10 and the order of the Land Tribunal was challenged before the Appellate Tribunal, Alappuzha in A.A.91/2005 and subsequently there was a settlement of all the disputes in between the second respondent and the mother of the first petitioner and in such circumstances, second respondent has no objection for quashing the proceedings. It is also pointed out that learned Magistrate could not have taken cognizance for the offence under section 188 of Indian Penal Code, without complying with the mandatory provisions of Section 195(1) of Code of Criminal Procedure. 4. In view of the settlement of the disputes with the second respondent and the fact that learned Magistrate could not have taken cognizance for the offence under section 188 IPC except on a complaint in writing of the public servant and no written complaint was filed by a public servant, it is not in the interest of justice to Crl.M.C..2989/2009 3 continue the prosecution. Petition is allowed. C.C.642/2008 on the file of Judicial First Class Magistrate Court, Ettumanoor is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006