IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH JUNE, 2008 / 6TH ASHADHA, 1930 Crl.MC.No. 4439 of 2005 ----------------------------- (CC.177/2005 of CHIEF JUDICIAL MAGISTRATE, KALPETTA) .................... PETITIONERS/ACCUSED: ------------------------------ 1. T.KUNHI RAMAN NAMBIAR, RAM NIVAS, PUNCHAVAYAL, P.O.NEERVARAM, WYNAD DISTRICT. 2. K.SUDHEER, RAM NIVAS, PUNCHAVAYAL, P.O.NEERVARAM, WYNAD DISTRICT. 3. SUSEELA, RAM NIVAS, PUNCHAVAYAL, P.O.NEERVARAM, WYNAD DISTRICT. 4. SEENA, RAM NIVAS, PUNCHAVAYAL, P.O.NEERVARAM, WYNAD DISTRICT. BY ADV. SRI.P.VIJAYAKUMAR RESPONDENTS/COMPLAINANTS: ----------------------------------------- 1. OMANA AMMA, PUTHANGADY HOUSE, KAYAKUNNE.P.O, NADAVAYAL, SULTHAN BATHERY, WYNAD DISTRICT. 2. JAYASREE, PUTHANGADY HOUSE, KAYAKUNNE.P.O, NADAVAYAL, SULTHAN BATHERY, WYNAD DISTRICT. 3. SUB INSPECTOR OF POLICE, KAMBALAKKAD, WYNAD DISTRICT. CRL.M.C.NO.4439 OF 2005 :-2-: 4. SUPERINTENDENT OF POLICE, WYNAD. R3 & R4 BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 4439 of 2005 --------------------------------------------- Dated this the 27th day of June, 2008 O R D E R The petitioners, who are accused in C.C.No.177 of 2005, approached this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash Annexure 13 complaint and C.C.No.177 of 2005 instituted thereon, pending before the Chief Judicial Magistrate Court, Kalpetta. Annexure 13 is a complaint preferred by the second respondent herein for the offences punishable under Sections 452, 427,294(b), 506(1) read with Section 34 of the Indian Penal Code. 2. The allegations in the said complaint are as follows:- At about 3 p.m. on 25.9.2004, when the complainant was engaged in the kitchen work, she heard the sound of somebody from outside and when she came out and searched, she saw the accused on the courtyard of her house and on seeing the complainant, the first accused by using filthy and obscene language asked about other members of the house. When she replied that she alone Crl.M.C.NO. 4439 of 2005 :-2-: was in the house and she asked what they wanted, in reply to that, the accused threatened her and on hearing, she entered into the house and when she tried to close the door, the accused forcibly opened the door and entered into the house and the fourth accused, holding the hair of the de facto complainant, pulled down her to the floor. The third accused tore the cloth of the de facto complainant. On hearing the cry of the complainant, the persons who were engaged in the work in the nearby parambu and her husband came to their house. On seeing them, the accused had gone out of the house and warned the complainant and her husband that if they approached the High Court by filing appeal, they will have to meet the same experience. It is also stated in the complaint that when the accused were inside the house, they committed waste by destroying the hurricane lamp, four glasses and three plates. It is also alleged that the accused/the complainant got Crl.M.C.NO. 4439 of 2005 :-3-: mental agony and she had sustained a loss to the tune of Rs.800/-. It is also stated that though the matter was intimated to the Police, no action was taken and hence preferred a complaint. Based upon the above allegation contained in Annexure 13 complaint, the learned Chief Judicial Magistrate took cognizance and instituted C.C.No.177 of 2005. It is the above private complaint and criminal proceedings pending before the court below being challenged in these proceedings under Section 482 of the Cr.P.C. 3. I have heard the learned counsel for the petitioners as also the learned Public Prosecutor. 4. The learned counsel for the petitioners submits that serious civil dispute was pending between the first petitioner herein and the first respondent. Annexures 1 and 2 are the judgments and decree respectively in O.S.No.15/87 of the Munsiff's Court, Kalpetta which would show that the civil dispute was Crl.M.C.NO. 4439 of 2005 :-4-: found in favour of the first petitioner. It is also averred that though appeal was filed, that was also disposed of in favour of the first petitioner. Thereafter, the first respondent had filed O.S.No.9 of 2003 against the first petitioner herein which was resulted in Annexure 3 judgment and Annexure 4 decree which are also in favour of the petitioners and against the first respondent. Thus, according to the petitioners, two competent civil courts by its judgment and decree mentioned above found the dispute in favour of the first petitioner. It is also the case of the petitioners that since the first respondent and her companions failed in the civil dispute, they resorted to criminal activities against the petitioners and accordingly, at the instance of the first petitioner, a criminal case was instituted which is pending against them as C.C.No.302 of 2004. Annexure 5 is the F.I.R. in the case. It is also the case of the petitioners that another complaint dated 17.1.2003 Crl.M.C.NO. 4439 of 2005 :-5-: is preferred against the respondents and the same is pending as C.C.No.596 of 2004. Annexure 7 is the F.I.R. and Anenxure 8 is the scene mahazar in that case. So, according to the petitioners, both the petitioners and respondents in these proceedings are in inimical terms though there was a civil dispute and the same was settled in favour of the first petitioner as evidenced by Annexures 1,2,3 and 4. Annexures 5,7 and 8 would show that criminal cases are pending against the respondents herein. 5. On the strength of the above facts, the learned counsel for the petitioners submits that after having failed in the civil dispute and since criminal proceedings are pending against the respondents herein, the first and second respondents are frequently filing complaints before various authorities including the Women's Commission. In support of the above contention, the petitioners have produced Annexure 9 Crl.M.C.NO. 4439 of 2005 :-6-: complaint which was preferred by the first respondent before the Women's Commission, but subsequently was rejected. It is also stated that the first respondent had preferred two private complaints namely, C.M.P.Nos.7279 of 2004 and 7280 of 2004, copies of the complaints are produced along with this Crl.M.C. and marked as Annexures 10 and 11 respectively. It is also the case that the first respondent had again filed another C.M.P. i.e., C.M.P.No.7864 of 2004, a copy of which is produced as Annexure-12. Upon Annexure 12 complaint, the court took cognizance and instituted C.C.No.101 of 2005. Counsel for the petitioner submits that against C.C.No.101 of 2005, they approached this Court by filing Crl.M.C.No.1279 of 2005 and the same was finally disposed of by this Court by order dated 14.12.2007. Besides Annexure 12 complaint, at the instance of the first respondent, the second respondent had filed another complaint on 4.11.2004 alleging Crl.M.C.NO. 4439 of 2005 :-7-: offences punishable under Sections 452, 427, 294(b) and 506(1) read with Section 34 of I.P.C. Annexure 13 is the complaint therein. The court below took cognizance upon Annexure 13 complaint and instituted C.C.No.177 of 2005. Thus, counsel for the petitioners submits that the present case is instituted only to wreck vengeance against the petitioners and the above facts have already been accepted by this Court as per judgment dated 14.12.2007 in Crl.M.C.No.1279 of 2005. Pointing out the various proceedings including the civil dispute and the criminal case pending both against the petitioners and respondents, counsel for the petitioners submits that if C.C.No.177 of 2005 pending before the court below is allowed to continue, it will amount to abuse of process of court. 6. I have carefully considered the contentions raised by the learned counsel for the petitioners. It is true that Annexures 1 to 4 documents would show that Crl.M.C.NO. 4439 of 2005 :-8-: there was civil dispute between the parties and the dispute was found in favour of the petitioners as per the above documents. It is also true that two criminal cases are pending against the respondents at the instance of the petitioners. It is equally worthwhile to note that at the instance of the respondents herein, complaints were filed before various authorities including the Chief Judicial Magistrate Court, Kalpatta. C.C.Nos.101 of 2005 and 177 of 2005 are two cases which were instituted at the instance of respondents 1 and 2. It is also true that by order dated 14.12.2007, this Court had quashed C.C.No.101 of 2005 which was pending against the petitioners. 7. On considering the averments contained in Annexure 13 complaint, the petitioners have no case that no ingredients of the offence alleged in the complaint are disclosed. I have already perused Annexure 13 complaint carefully and it appears to me Crl.M.C.NO. 4439 of 2005 :-9-: that there are sufficient averments in the complaint so as to attract Sections 452, 427,294(b), 506(1) read with Section 34 of the Indian Penal Code. Learned counsel for the petitioners submits that this Court had already quashed C.C.No.101 of 2005 pursuant to Annexure 10 complaint. 8. I have perused the above judgment of this Court from where it can be seen that there, the offences alleged against the petitioners are under Sections 143, 147, 148, 452, 342, 506(ii), 307 and 327 read with Section 149 I.P.C. In that case, after considering the materials available on record, including the private complaint therein, this court found that though the complainant had got witnesses and documents to prove the case, the sole witness cited is one Surendran and there is no document at all produced with the complaint. This Court had also found that in paragraph 11 of the complaint, it was stated that there was no eye witness to Crl.M.C.NO. 4439 of 2005 :-10-: the incident which had taken place within the house of the complainant. In the above order, this Court had specifically found that, “..........It is worthy to note that the incident is alleged to have taken place on 20.10.2004 at 10.30 p.m. Though the first respondent/complainant alleges in Annexure-10 that the complaint was given to the Police on 21.10.2004, it is further alleged that the police have registered case on basis of the said complaint .........” It was also observed by this Court that the petitioners had not approached the hospital to get treatment and with the result, there was no medical certificate also to corroborate the allegations made in the complaint. After having considered the above factual situation and circumstances and on an overall consideration of the entire allegations in the complaint and the existence of several criminal and civil litigations pending between the parties, this Court was of the view that the complaint therein was filed only to wreck vengeance and that it was an abuse of process of Crl.M.C.NO. 4439 of 2005 :-11-: court and that even in the event of the first respondent herself tendering evidence on the matters alleged, without even any medical evidence to corroborate the allegations in the absence of any occurrence witness, no conviction can be arrived at (emphasis supplied) and that proceeding with trial of the case would only be an abuse of the process of court. 9. But, the allegation in the present case is entirely different. It can be noted that frequent civil and criminal proceedings are initiated each other. Here the offences alleged against the petitioners are under Section 451,427,294(b), 506(1) read with Section 34 I.P.C. I have carefully perused Annexure 13 complaint from where it can be seen that the complainant herself was the victim of the alleged attack made by the petitioners. It is the specific case of the complainant that the accused firstly trespassed into the courtyard of the house and subsequently, entered into the house and Crl.M.C.NO. 4439 of 2005 :-12-: holding the hair of the de facto complainant, pulled down her to the floor. It is also stated in the complaint that when the accused were inside the house, they committed waste by destroying the hurricane lamp, four glasses and three plates and thereby committed waste. It is also the case of the complainant that on hearing the cry of the complainant, her husband and another worker who were engaged in the work in the nearby parampu came to the spot and they saw the accused going out. It is also a specific case of the complainant that when the husband and another worker came to the courtyard of her house, they were threatened by the petitioners on the basis of the proceedings initiated by the respondents. If that is the allegation, the grounds, on the basis of which C.C.No.101 of 2005 was quashed, are not available to the petitioners herein, especially in the light of the allegations with respect to Sections 452, 427,294(b) and 506(1) of I.P.C. There are two more Crl.M.C.NO. 4439 of 2005 :-13-: witnesses apart from the victim to substantiate the allegations. Even though the civil cases are over and found in favour of the petitioners, the places of occurrence are the courtyard and the house of the complainant. Hence the correctness and acceptability of the case and the sufficient of evidence etc. are to be considered on the basis of evidence to be adduced at the time of trial. It is also a fact that the learned Chief Judicial Magistrate upon Annexure 13 complaint took cognizance after perusal of the averments contained in the complaint as well as the other materials. 10. In the light of the fact that since serious disputes both criminal as well as civil are pending between the parties and especially the court below has already taken cognizance, I am of the view that this Court will not be justified in interfering with Annexure 13 complaint and the criminal case instituted thereon. As I pointed out earlier, the facts and circumstances Crl.M.C.NO. 4439 of 2005 :-14-: involved in C.C.No.101 of 2005 are entirely different both on factual and legal basis, and simply for the reason that this Court has quashed the above case, is not a ground to interfere with C.C.No.177 of 2005. In the result, there is no merit in the Crl.M.C. and the same is dismissed, accordingly. V.K.Mohanan, Judge MBS/ Crl.M.C.NO. 4439 of 2005 :-15-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 -------------------------------------------- O R D E R Crl.M.C.NO. 4439 of 2005 :-16-: DATED: -6-2008