IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 Crl.MC.No. 263 of 2011 ------------------------ (CC.106/2006 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM) .................... PETITIONERS/ ACCUSED 1 & 2 -------------------------------- 1. AJITH, S/O.N.APPU PILLAI, N.G.O.QUARTERS NO.E3, HARIHAR NAGAR, NANTHENCODE, THIRUVANANTHAPURAM. 2. SEENA AJITH, W/O.AJITH, N.G.O.QUARTERS NO.E3, HARIHAR NAGAR, NANTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS/ COMPLAINANTS & STATE: ----------------------------------------------- 1. MOHANDAS, S/O.JANARDHANAN THAMBI, T.C.15/584, UDARASIROMANI ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. 2. ANANDAMAYI, W/O.MOHANDAS, T.C.15/584, UDARASIROMANI ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014. 3. ASSISTANT COMMISSIONER OF POLICE, CANTONMENT POLICE STATION, THIRUVANANTHAPURAM- 695 001. 4. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY PUBLIC PROSECUTOR ADV. MR. K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.263 of 2011 -------------------------------------- Dated this the 27th day of January, 2011. ORDER Petitioners are husband and wife. It is stated that petitioner No.2 is the owner in possession of 2.721 cents in survey No.586/2-2 of Sasthamangalam Village as per document No.1519 of 2005. Respondent No.2, according to the petitioners has ten cents on the north and east of the said property, demarcated by compound walls. While so, respondent Nos.1 and 2 attempted to demolish the northern and eastern compound walls of property of petitioner No.2 and she was constrained to file O.S.No.756 of 2005. In that case vide order on I.A.No.917 of 2005 respondent No.1 was restrained from demolishing the northern and eastern compound walls. While that order was in force on 14.04.2005 respondent Nos.1 and 2 are said to have demolished the eastern compound wall of petitioner No.2 and to escape from proceedings for dis- obeyance of the order of injunction, respondent No.1 is said to have preferred a complaint against petitioners at Museum Police Station, Thiruvananthapuram. Police registered Crime No.122 of 2005 against petitioners alleging that petitioners demolished the southern and northern compound walls. Petitioners are said to have committed offences punishable under Sections 143, 147, 148, 447 and 427 read with Section 149 of the Indian Penal Code (for short, “the IPC”). After investigation Police submitted final report against petitioners in the court of learned Chief Judicial Magistrate, Thiruvananthapuram. Learned Chief Judicial Magistrate took cognizance of the said offences and filed C.C.No.106 of 2006. Petitioners filed Crl.M.C.No.500 of 2007 in this Court to quash the Crl.M.C.No.263/2011 2 proceedings against them. But this Court disposed of that case observing that the dispute cannot be resolved under Section 482 of the Code of Criminal Procedure (for short, “the Code”) and that petitioners can claim relief of premature stoppage of proceedings under Section 258 of the Code or acquittal at a later stage. Grievance of petitioners is that to thwart any move on the part of petitioners for premature stoppage of proceedings under Section 258 of the Code respondent No.1 filed application to set aside the exparte decree which petitioners obtained in O.S.No.756 of 2005. Respondent No.1 has withdrawn the suit (Annexure-5) filed against petitioners. It is contended that in the circumstances proceedings before the learned Chief Judicial Magistrate are to be quashed or, proceedings before the learned Chief Judicial Magistrate are to be stayed till final disposal of O.S.No.756 of 2005. 2. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned counsel submitted that in the circumstances stated above, proceedings before learned chief Judicial Magistrate is nothing but an abuse of process of law and it is to be quashed. Alternatively it is prayed that trial of C.C.No.106 of 2006 is to be stayed until the dispute is resolved by the civil court. 3. So far as the request to quash the proceedings is concerned, it is seen that even when disposing Crl.M.C.No.500 of 2007 this Court refused to interfere on the ground that the dispute cannot be resolved under Section 482 of the Code and leaving it open to the petitioners to seek premature stoppage of proceedings under Section 258 of the Code or acquittal at a later stage. It is Crl.M.C.No.263/2011 3 in the meantime O.S.No.756 of 2005 was decided exparte in favour of petitioners. If law permits it is within the power of respondent Nos.1 and 2 to seek reopening of the said decree and judgment. For the said reason the criminal proceedings cannot be quashed. 4. Nor am I impressed by the contention that until the dispute is resolved in the civil court, criminal proceedings are to be stayed. The Supreme Court in Kishan Singh v. Gurpal Singh (2010(4) KLT SN 2 (Case No.3)) has held that judgment of civil courts has no bearing on the criminal court except for the limited purpose provided Section 41 of the Evidence Act. The Constitution Bench in M.S.Sheriff and another v. State of Madras and others (AIR 1954 SC 397) has held that in situations where criminal and civil proceedings are pending, the criminal matter should be given precedence. In the light of above position of law as well request to stay the proceedings cannot be accepted. It is open to petitioners to take appropriate defence before the learned Chief Judicial Magistrate as are available to them. With the above observation this petition is dismissed. THOMAS P.JOSEPH, Judge. cks