IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 Crl.MC.No. 3914 of 2009() ------------------------- CC.317/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER(S): ------------------------ K.P.LUKA, S/O. PATHROSE, AGED 61 YEARS, KUNNATHKALAYATHOLIL, MARANGATTUPALLY KARA, ELAYACKADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. MR.BIJU ABRAHAM RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY S.I OF POLICE, MARANGATTUPALLY, KOTTAYAM DISTRICT. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.3914 OF 2009 ------------------------------------------ Dated 5th January 2010 O R D E R Petitioner is the accused in C.C.317/2007 on the file of Judicial First Class Magistrate, Pala taken cognizance for the offence under Sections 447 and 379 of Indian Penal Code. Prosecution case is that 56.2 Ares in Elakkad village belonging to the petitioner was attached under the provisions of Revenue Recovery Act for non payment of the dues to the Government and with the intention to sell the trees petitioner approached second charge witness and made him believe that the property belonging to him absolutely and he could cut and remove the trees and on 9/2/2007 along with workers trespassed into Crmc 3914/09 2 the property and cut and removed three jack trees and sold them to second charge witness and thereby committed the offences under Sections 447 and 379 of Indian Penal Code. Petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that continuation of the proceedings is only an abuse of process of the court and even if, there is any violation of the order of attachment, remedy is only as provided under the Revenue Recovery Act and not to prosecute the petitioner for the offence under Indian Penal Code. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As rightly pointed out by the learned counsel appearing for the petitioner, Crmc 3914/09 3 property from where the trees were cut by the petitioner, admittedly belongs to the petitioner. It is the prosecution case that for non payment of the amount due to the Government, the property was attached by the Tahsildar under the Revenue Recovery Act and when the order of attachment was subsisting, on 9/2/2007 petitioner trespassed into the property and cut and removed three jack trees. Even if, there is an order of attachment, order of attachment will not disentitle the petitioner from possessing the property. It would not operate as divesting the rights of the petitioner to the property. The attachment will not even create an interest in the property attached. By the order of attachment, private alienation alone is barred. Even if after attachment under the provisions of Crmc 3914/09 4 Revenue Recovery Act, owner of the property had cut and removed the standing trees from the property attached, it would not amount to either a theft or a trespass into the property. Even if there is violation of the order of attachment by cutting and removing trees from the attached property and thereby reduced the value of the property, remedy is only to proceed, as provided under Revenue Recovery Act and not to prosecute for theft or trespass. 4. Position has been settled by this court in Ibrahim Haji v. State of Kerala (2007 (1) KHC 105). In an identical case where an accused was charged for the offence under Section 379 of Indian Penal Code, on the allegation that when the order of attachment under Revenue Recovery proceedings, pursuant to the order of execution in a petition filed Crmc 3914/09 5 under Section 125 of Code of Criminal Procedure was subsisting, this court held that alleged action on the part of the owner would not attract the definition of theft under the Indian Penal Code. In such circumstances, petition is allowed. C.C.317/2007 on the file of Judicial First Class Magistrate, Pala is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.