IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 Crl.MC.No. 3215 of 2011 ------------------------- CC.196/2011 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... PETITIONER/ACCUSED: ------------------------- C.MURALEEDHARAN, AGED 50 YEARS, S/O.LATE A.SANKARANKUTTY MENON, CHUNTHIRIYIL HOUSE, KRISHNADAM TEMPLE ROAD, KUTTUMUKKU, VILVATTOM, POOTHOL, THRISSUR. BY ADV. SRI.MADHU RADHAKRISHNAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. 2. KARUNAKARAN, S/O.KUNJIVELU, AGED ABOUT 71 YEARS, DOOR.NO.28/4/3, VALIYAPARAMBIL, CHEMBUMUKKU, THRISSUR. PIN - 680 530. R1 BY PUBLIC PROSECUTOR, SRI. P.M. SANEER. R2 BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3215 of 2011 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A : TRUE COPY OF THE SUIT O.S. 3807/2010 BEFORE THE MUNSIFF'S COURT, THRISSUR. ANNEXURE B : TRUE COPY OF THE COMMISSION REPORT ALONG WITH SKETCH. ANNEXURE C : TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT. ANNEXURE D : TRUE COPY OF THE FIR REGISTERED BY THE OLLUR POLICE STATION BEARING NO.1070/2010. ANNEXURE E : TRUE COPY OF THE FINAL REPORT NO.268/2011. /TRUE COPY/ PS TO JUDGE N.K.Balakrishnan, J. --------------------------------------- Crl.M.C.No.3215 of 2011 ---------------------------------------- Dated this the 12th day of October, 2011 ORDER Petitioner is the accused in C.C.No.196/2011 of Judicial First Class Magistrate Court-III, Thrissur. The allegation is that accused committed trespass into the property of the defacto complainant and committed mischief and put up a compound wall encroaching into a portion of the property of the defacto complainant. This allegation is resisted by the petitioner contending that already a civil suit as O.S.No. 3807/2010 is pending before the Munsiff Court, Thrissur where the reliefs sought for is permanent prohibitory injunction restraining the defacto complainant and others from trespassing into the petitioner's property. It is also submitted that an Advocate Commissioner has already inspected the property and filed a report and plain with regard to the lie and position of the properties claimed by the respective parties. 2. Parties are entitled to file objection to that report and plan. As to what exactly is the boundary dividing the properties claimed by the petitioner and the defacto CRMC 3215/2011 2 complainant and whether there was actually a trespass is to be decided by the civil court. As it stands now, it will be difficult to decide whether there was actually a trespass or commission of mischief as alleged. Of course, the defacto complainant can certainly claim for damages for the trespass or commission of mischief. Learned counsel for the defacto complainant submits that there is actually trespass into his property and that unless the prosecution proceeds further, the question of trespass and mischief alleged in the complaint cannot be decided or settled. But, in view of the fact that suit is still pending, it is just and proper that parties agitate their claim before the civil court and resort to their remedies provided under law. In view of what is stated above, proceedings in C.C.No. 196/2011 of Judicial First Class Magistrate Court-III, Thrissur is quashed. (N.K.Balakrishnan, Judge) tkv