IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 Crl.MC.No. 2073 of 2008() ------------------------- CRIME NO. 36/08 OF PANNIYANKARA POLICE STATION PETITIONER: ------------ ALI BARAMMY.B.B.,S/O. ABDUL KAHDER BARAMMY, AGED 49 YEARS, 11/420. AHIYANA, KURIYAL LANE, CHEROOTTI ROAD, KOZHIKODE. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE PANNIYANKARA POLICE STATION KOZHIKODE. 3. SULEKHA ABDU BARAMMY, 20/1326, BAITHUL BARAMY, THIRUVANNOOR ROAD, CALICUT-673 029. R1 & 2 BY PUBLIC PROSECUTOR SRI. K.C. SANTHOSH KUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/06/2008, A/W. CRMC 2077 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos. 2073 & 2077of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2008 O R D E R The common petitioner in these Crl.M.Cs. has come before this court with identical prayers in respect of two different crimes. He prays that Crime Nos. 19 and 36 of 2008 of Panniankara Police Station may be quashed invoking the extra ordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C. 2. What is the ground? The learned counsel for the petitioner submits that the dispute is between siblings. There was a partition of the family property. At the time of that partition a pathway has been provided for use by all the joint owners who executed the partition deed. Separate possession was given, but the pathway was kept common. According to the petitioner there was a gate at the time when the partition deed was executed, but later the said gate had been removed . On the dates of the alleged crimes, according to the petitioner, there was no gate at all. The petitioner laments that false allegations have Crl.M.C.Nos. 2073 & 2077of 2008 2 been raised against him of having demolished the gate, which allegedly stood in the pathway kept in common on the date of occurrence of these cases and he allegedly removed the gate. Thereby allegations of criminal trespass, mischief and theft are raised against the petitioner. According to the petitioner there was no gate at all on the relevant dates. It is in these circumstances prayed that the crimes may be quashed and the petitioner may be saved of the trauma of such unnecessary criminal investigation continuing against him. 3. I have heard the learned counsel for the petitioner. I have considered all the relevant inputs. 3. The question whether the gate was in existence on the relevant dates and whether such gate was demolished and removed by the petitioner cannot certainly be resolved by this Court in proceedings under Section 482 Cr.P.C. The matter will have to be investigated into. Truth will have to be ascertained. Of course even if it is found that the gate were there on the dates of occurrence and the same had been removed, the question will still have to be considered whether such conduct can amount to offences of trespass, mischief and theft. The learned counsel contends that in as much as the gate even allegedly Crl.M.C.Nos. 2073 & 2077of 2008 3 stood only in the property kept common for a pathway no offence can be attracted. 4. I have no reason to believe that the Investigator will not apply his mind to these crucial questions. Where did the gate stand? Did that stand in the common property? Was the gate removed long earlier as alleged by the petitioner? In having allegedly demolished and removed the gate has any crime been committed by the petitioner? These questions will certainly have to be considered in detail before the Investigating Officer before taking a final decision to file a charge sheet/refer report as the case may be. With the observation that the Investigator must address himself of these crucial concerns, I take the view that there is no warrant for the invocation of the powers under Section 482 Cr.P.C. to quash the proceedings. 5. These Crl.M.Cs. are accordingly dismissed, but with the above specific observations. (R. BASANT) Judge tm