IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.MC.No. 2270 of 2009() ------------------------- CC.21/2009 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER(S): ACCUSED: ------------------------------------------ N.M.VARKEY, AGED 66 YEARS, S/O.MATHEW, NADUVILEDAM HOUSE, PERUMBALOOR KARA, ARAKKUZHA VILLAGE, MUVATTUPUZHA TALUK. BY ADVS. MR.T.A.UNNIKRISHNAN, MR.P.P.BIJU, MR.NITHIN JACOB. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CHERIAN, S/O.KURIAN, AGED 74 YEARS, VADAKKAYIL HOUSE, THALAMATTOM KARA, MUTTOM P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK. R1 BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2270 of 2009 -------------------------- ORDER Petitioner is the accused in C.C.No.21/2009 on the file of Chief Judicial Magistrate's Court, Thodupuzha. Learned Magistrate took cognizance of the offence under Sections 447, 434 and 427 of Indian Penal Code on Annexure-I final report. Prosecution case is that petitioner, with intention to reduce the property in the possession of brother of the second respondent, trespassed into 4.128 cents of land in Sy.No.325/5 of Thodupuzha Village and destroyed the pineapple cultivation and the compound wall and thereby committed the offences. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case as against the petitioner contending that under Annexure-II judgment in O.S.No.293/2006 dated 9.1.2009, civil court has already found in favour of the petitioner and in any case, the dispute is only a civil CRMC 2270/09 2 dispute and therefore, continuation of the proceedings is only an abuse of process of the court. 2. Learned Public Prosecutor pointed out that prosecution case is that petitioner committed trespass into 4.128 cents of land in the possession of the brother of the second respondent and even in the civil suit, this fact was not found against and in such circumstances, based on Annexure-III judgment, the case as against the petitioner cannot be quashed. 3. On hearing the learned counsel, I find that while considering this petition under Section 482 of Code of Criminal Procedure, a factual finding on the disputed rival contentions cannot be entered into with regard to title, right or possession of 4.128 cents of land in Sy.No.325/5 of Thodupuzha Village involved in this case and based on such finding, the case as against the petitioner cannot be quashed. Petitioner is at liberty to file an CRMC 2270/09 3 application for discharge under Section 239 of Code of Criminal Procedure before the Magistrate. If petitioner files an application, learned Magistrate is to consider the application and pass orders in accordance with law. If petitioner files an application to dispense with his presence for the purpose of hearing the application for discharge, learned Magistrate may grant permission. 22nd July, 2009 (M.Sasidharan Nambiar, Judge) tkv