IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 2ND FEBRUARY 2007 / 13TH MAGHA 1928 Crl.MC.No. 2597 of 2006(Y) -------------------------- CC.37/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR CRIME NO.523/04 OF THE KODUNGALLOOR POLICE STATION. .................... PETITIONER: ------------ 1. ALIKUNJI, AGED 70 YEARS, S/O.LATE SHRI.KOCHU MOIDEN SAHIB,KALIPALAYAM ROAD, K.P.PALAYAM, VIA.POLLACHI, COIMBATORE DISTRICT, TAMIL NADU-642204. 2. MOHAMMED SULAIMAN, AGED 51 YEARS, S/O.LATE SHRI.KOCHU MOIDEEN SAHIB, AYYARIL KARIKULATH, KUNDALIYOOR P.O., VIA. CHETTUVA, THRISSUR DISTRICT. 3. ABDUL HAQUE, AGED 45 YEARS, S/O.LATE SHRI.KOCHU MOIDEEN SAHIB, AYYARIL KARIKULATH, MUTTIL A.V. HOUSE, THIRUATHARA, VIA.CHAVGHAT, THRISSUR DISTRICT. 4. ISHABI, W/O.LATE MOHAMMED ABOOBAKCER, AGED 60 YEARS, THAICHALIL HOUSE, AZHIKODE P.O., VIA. KODUNGALLOOR, THRISSUR DISTRICT. 5. RABIYA, W/O.LATE KUNJI POKER KUTTY, AGED 53 YEARS, PUTHENCHALIL (THETALIL), POST ERIKAD, VIA. KODUNGALLOOR, THRISSUR DISTRICT. 6. NAZRIN, W/O.ABDUL MAJEED, AGED 51 YEARS, THADATHIL HOUSE,PUTHENCHIRA, VIA. VELLANGALLOOR, THRISSUR DISTRICT. 7. MOHAMMED NIZAR, AGED 62 YEARS, S/O.LATE SHRI.KOCHU MOIDEEN SAHIB,KARIKULAM HOUSE, AZHIKODE P.O., VIA. KODUNGALLOOR, THRISSUR DIST. 8. ISHABI, W/O.LATE MOHAMMED SAGEER, AGED 55 YEARS, KARIKULAM HOUSE, ERIKADU, VIA. KODUNGALLOOR, THRISSUR DISTRICT. -2- 9. SHAMEEDA SHAMSUDHEEN, AGED 46 YEARS, D/O.LATE SHRI MOHAMMED SAGEER, THARAYIL HOUSE, EDAKAZHIYOOR, VIA. CHAVAKKAD, THRISSUR DISTRICT. 10. HAJIRA SIRAJ, AGED 44 YEARS, D/O.LATE SHRI.MOHAMMED SAGEER, KUNJUMAKACHALIL, KULLAMAREGALAM, P.O. EDATHURUTHY,VIA.IRINJALAKUDA, THRISSUR DISTRICT. 11. RAHMATH KADERMON, AGED 41 YEARS, D/O.LATE SHRI MOHAMMED SAGEER,BIYAMMEA MANZIL, NEAR KANNIKUTHIPALLI,P.O. CHAVAKKAD,THRISSUR DIST. 12. RASHID SAGEER, AGED 41 YEARS, S/O.LATE SHRI.MOHAMMED SAGEER,KARIKULAM HOUSE, AZHIKODE P.O., VIA. KODUNGALLOOR, THRISSUR DIST. 13. ABOOBACKER SIDDIQUE, AGED 62 YEARS, S/O.LATE SHRI.KOCHI MOIDEN SAHIB, KARIKULAM, ST.THOMAS ROAD, KURIACHIRA, THRISSUR-6. BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY SRI.P.A.MOHAMMED ASHROF SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KODUNGALLOOR POLICE STATION, KODUNGALLOOR. 3. ABDUL JABBAR, S/O.KUNJI MOHAMMAD, PADINJARE VEETTIL, AZHIKODE LIGHT HOUSE JUNCTION, AZHIKODE VILLAGE, KODUNGALLOOR TALUK. BY PUBLIC PROSECUTOR SRI.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/02/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- CRL.M.C.NO. 2597 OF 2006 ------------------------------------------------- Dated this the 2nd day of February, 2007 ORDER The petitioners are accused Nos.1, 2, 4 and 7 to 16 in a prosecution under Sec.420 read with Sec.149 of the IPC. They along with the co-accused i.e., Accused 3, 5, 6 and 17 are the legal heirs of the deceased Kochu Moideen. The said Kochu Moideen expired in 1985. The petitioners along with other legal heirs inherited the estate of the said Kochu Moideen. In 1998 the rights of the legal heirs were assigned to various persons including the de facto complainant. A portion of the estate was conveyed to the de facto complainant who is arrayed as the 3rd respondent in this petition. He has been served; but there is no representation on his behalf. The 3rd respondent, who took assignment of the rights of the legal heirs including the petitioners as per a sale deed executed in 1998, had filed a complaint before the learned Magistrate which was referred to the police under Sec.156(3) of the Cr.P.C. After investigation of that crime, final report was filed and cognizance was taken against all the accused CRL.M.C.NO. 2597 OF 2006 -: 2 :- including the petitioners herein under Sec.420 read with Sec.149 of the IPC. That sale deed was executed by the 1st respondent as the holder of the Power-of-Attorney on behalf of the legal heirs under different instruments of Power-of-Attorney. The grievance of the 3rd respondent – de facto complainant is that the share of accused 5 and 6 over the property assigned to him was the subject matter in O.S.No.1/96 and there was an attachment of the rights of accused 5 and 6 in respect of the property conveyed to him as per an order passed in O.S.No.1/96. The attachment was allegedly made in the suit claiming amounts due under some other debt. 2. The petitioners have come to this Court with a prayer to invoke the powers under Sec.482 of the Cr.P.C. The learned counsel contends that there is no semblance of an allegation or material on which it can be assumed that the petitioners herein had fraudulently misrepresented or suppressed any information to induce the de facto complainant/the 3rd respondent to enter into a transaction of sale. Even admittedly, the rights of the petitioners which they conveyed to the 3rd respondent through their Power-of-Attorney holder were not, in any way, under any cloud. The learned counsel contends that on the materials CRL.M.C.NO. 2597 OF 2006 -: 3 :- available, it is impossible even to entertain a suspicion that the petitioners had knowledge of the alleged attachment in O.S.No.1/96 and that they had wilfully and fraudulent intention misrepresented or done any act to induce the third respondent to enter into the transaction. 3. As the contention appeared to be impressive, the learned Public Prosecutor was directed to take instructions and point out to the court specifically the circumstances, if any, which can indicate that the petitioners were aware of the attachment of the rights of accused 5 and 6 in O.S.No.1/96. The learned Public Prosecutor, after perusing the records, fairly submits that he is unable to point out any specific circumstances against the contention urged by the learned counsel for the petitioners. 4. Powers under Sec.482 of the Cr.P.C. are to be invoked sparingly in exceptional cases in aid of justice. Has justice failed? Is there miscarriage of justice? These are the crucial questions which a court must consider. Where resort to the criminal adjudicatory process is made without any tangible and specific reasons/justification and the criminal adjudicatory CRL.M.C.NO. 2597 OF 2006 -: 4 :- process is misutilised for the resolution of civil disputes, certainly a court should not hesitate to invoke the powers under Sec.482 of the Cr.P.C. This, I am satisfied, is a classic case where this Court would be absolutely justified in invoking such powers and not relegating the petitioners to seek the ordinary remedy of claiming discharge under Sec.239 of the Cr.P.C. In the facts and circumstances of this case, the court is persuaded to invoke such powers under Sec.482 of the Cr.P.C. to save the crowd of the petitioners unnecessarily facing a criminal trial. 5. In the result: (a) This Crl.M.C. is allowed. (b) C.C.No.37/06 pending before the Judicial Magistrate of the First Class, Kodungalloor, in so far as it relates to the petitioners, is hereby quashed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge