IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 16TH DAY OF OCTOBER 2009/24TH ASWINA 1931 Crl.MC.No. 1187 of 2006 (C) --------------------------- CC.1016/2005 of J.M.F.C.-I,KOTTAYAM CRIME NO.209/2004 OF KOTTAYAM EAST POLICE STATION PETITIONERS: ------------- 1. REV.T.O.UMMAN, SECRETARY, C.S.I. MADHYA KERALA MAHA IDAVAKA ASSOCIATION COUNCIL, KOTAYAM. 2. DAVID MATHEW, CHURCH WORKER, C.S.I. CHURCH, KOLLADU. BY ADV. SRI.V.K.SUNIL RESPONDENTS:COMPLAINANTS: ---------------------------- 1. STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. DR.SHIBU JAYARAJ, SREEVILASOM HOUSE, THIKKUNNAPPUZHA VILLAGE, KARTHIKAPPALLY. BY ADV. PUBLIC PROSECUTOR SRI.B.VINOD – FOR R1 BY ADV. SRI.R.PREM SANKAR BY ADV. SRI.B.PREMOD- FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------- Crl.M.C.No.1187 of 2006 ---------------------------------- Dated this the 16th day of October, 2009 ORDER This petition is filed to quash Annexure-I complaint filed against the petitioners as accused Nos.1 and 2 and 4 others by the second respondent herein. 2. As per the allegations in the complaint, all the accused committed offence under Sections 143, 147, 447 and 149 of the Indian Penal Code (for short 'the I.P.C.') and also under Section 3(1) (v) and (ix) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 ('the Act' for short). According to the complainant, he is a member of the Scheduled Caste and he and his brother own certain property (6.21 + 6.22 ares). He is working as a doctor in the Community Health Centre, and is a Government Servant. A property is in the possession of the complainant and the family for the past more than 100 years. 3. But, accused trespassed into the property, destroyed the boundary and took away the boundary stones and erected some stones after measuring the property, without notice to the Crl.M.C.No.1187 of 2006 2 complainant. By acts the accused have committed various offences stated above. A complaint was lodged before the Dy.S.P. by the complainant and an investigation was conducted, on registration of crime as crime No.209/04. The notice was received stating that the said case was referred and hence this complaint is filed. 4. The learned counsel for the petitioner submitted that the allegation in the complaint will not constitute any offence under Sections 143, 147, 447 and 149 of the I.P.C. and also under Section 3(1) (v) and (ix) of the Act. It is argued that the complainant has no exclusive right over the property claimed by him. A civil suit was filed by the complainant, in respect of the same property against the second petitioner and another, seeking prohibitory injunction in respect of the same property and the same was dismissed. 5. It is also submitted that the property was measured and the boundary was fixed by the authorities concerned on an application filed by the Church authorities and no question of trespass is involved in this case. The property was measured and the boundary was fixed in accordance with law and hence Crl.M.C.No.1187 of 2006 3 the complaint is to be quashed. It is also pointed out that a complaint was lodged by complainant before the Dy.S.P. in respect of the same matter and a copy of the complaint is Annexure-VII. On the basis of the said complaint, F.I.R. was registered as Annexure-VIII (Crime No.209/04). The said complaint was referred after investigation (As per Annexure-IX). It is reported therein that the case is of a civil nature. The complaint is filed only to harass the petitioner and wreak vengeance against the petitioner, since the complainant has lost the suit filed by him. The judgment in O.S.No.572/03 by the complainant is produced as Annexure-X. 6. Learned counsel for respondents submitted that there are specific allegations in the complaint, which will constitute trespass, and other offences, which are alleged in the complaint. Therefore, it cannot be said that the court had wrongly taken cognizane of the said offences. It is also submitted that there is no declaratory suit in respect of the property and no declaration is granted showing that the petitioners have any right in the property claimed by the complainant. Therefore, merely on the basis of Annexure-X which is only a suit for prohibitory Crl.M.C.No.1187 of 2006 4 injunction, the petitioners cannot claim any right or title over the complainant’s property. The petition is only to be dismissed, it is submitted. 7. On hearing both sides and on going through the complaint and various other documents produced I find that several offences are alleged and those are under Sections 143, 147, 447 and 149 of the I.P.C. and also under Section 3(1) (v) and (ix) of the Act. On the basis of the allegations made, offence under Section 3(1) (v) and (ix) of the Act is not even prima facie made out. It is not alleged in the complaint that the accused committed the offence not being the members of Scheduled Caste/Scheduled Tribe. 8. To attract offences under this Act, it is not sufficient that the complainant is a member of a Scheduled Caste. Therefore in the absence of averment that accused committed offence not being member of Schedule Caste or Tribe cognizance ought not to have been taken for offence under the said Act. While taking cognizance of any offence under the Act, the court has to be very careful, since there is even a bar even for granting anticipatory bail to an accused for the offences Crl.M.C.No.1187 of 2006 5 falling under the Act. 9. The offences under Sections 143 and 147 are also not prima facie made out from the allegations made. For offence under Sections 143 and 147 to apply, there must be allegation that the offence was committed in prosecution of the common object of an unlawful assembly. But there is absolutely no allegation in the complaint that there was formation of an unlawful assembly or that the offence was committed in prosecution of the common object or such assembly. 10. Whether there was existence of a common object also is not revealed from the complaint. Therefore, the court ought not to have proceeded against the petitioners under Sections 143, 147 and 149 of the I.P.C. There is also no allegation that the offence was committed in furtherance of common intention and therefore Section 34 of the I.P.C. is also not attracted in this case. 11. Now the only offence left is the one under Section 447 of the I.P.C. There is a general allegation in the complaint that the accused have trespassed into the property, which is in joint possession of the complainant and the family for the past, Crl.M.C.No.1187 of 2006 6 more than 100 years and that accused destroyed the boundary and also took away the boundary stones. But there is no dispute that Annexure -X judgment was rendered in respect of the same property, which is alleged in this complaint. Admittedly, it was passed in a suit instituted by the complainant in respect of the same property. In the said case, though petitioner claimed possession and title over the entire extend of property, the civil court found there was no evidence to show that petitioner was in possession of the entire extend of the property measuring 8.64 ares. 12. On the other hand, the defendants in the suit disputed that the extent of the property which is in possession of the complainant is much lesser and there is a continuing dispute with respect to the boundary which is not finalized even as on the date of the judgment, Annexure-X. When there is a civil dispute in respect of possession over a property and it relates to the right of the accused and the complainant, no offence under Section 447 of the I.P.C. will be attracted. It is only a person is in exclusive possession of a property, offence of criminal trespass can be committed in respect of such property. Crl.M.C.No.1187 of 2006 7 13. It also appears from the documents produced that this is a case in which the property was measured and the boundary was fixed by the authorities concerned and this fact is revealed from the original complaint filed by the complainant before the Dy.S.P., which is marked as Annexure-VII. Taluk Surveyor visited the property, measured it, and installed the boundary stones. It was for such purpose that some persons had gone to the property including the authorities concerned. Such entry cannot be said to be trespass. 14. At any rate, there is a civil dispute regarding the possession of the property as revealed from Annexure-10 judgment. It is also to be noted that there is continuing dispute with respect to the boundary of the plaint schedule property between the plaintiff and the defendant, which is not finalized according to the parties till date. In such circumstances, no criminal offence under section 447 of the I.P.C. will be attracted against the petitioners. Offence under Section 447 of the I.P.C. can be said to be committed if a person commits criminal trespass as defined under Section 441 of the I.PC. Crl.M.C.No.1187 of 2006 8 15. As per the said Section if a person enters into or upon the property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, it can be said to be to commit criminal trespass. 16. But in this case, even in a civil case which was contested and instituted by the complainant he could not establish that he is possession of the property over which he now claims a right in this criminal case. Exclusive possession of the property is very relevant in Section 447 I.P.C. That apart the intention of the accused is quite relevant to attract Section 447 I.P.C. The entry into the property by the so-called offender must be with an intention to commit an offence or to intimidate, insult or annoy any person who is in possession of such property. 17. There is nothing on record to presume that the accused entered property with intention to commit an offence or they entered the property to intimidate, insult or annoy the Crl.M.C.No.1187 of 2006 9 complainant. On the other hand, it appears from the documents they had gone for the purpose of fixing the boundary when the authorities came to the spot. It also appears from the documents produced that the entry into the property was only on a bonafide belief that the said property belonged to the accused and not under the belief that the property belongs to the complainant. If there is a bonafide claim for the possession of the property or any right of the property and on such right a person enters property offence under Section 447 I.P.C. cannot be said to be attracted. 18. In the result, the orders passed in Annexure-I as against the petitioners (accused 1 and 2) and further proceedings initiated against them on the basis of Annexure-I are hereby quashed. Petition is allowed. K.HEMA, JUDGE skj.