IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Crl.MC.No. 2679 of 2011(D) -------------------------- CC.479/2010 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PATHANAMTHITTA .................... PETITIONER: 3RD ACCUSED ----------------------- PRINCE P.THOMAS (DESCRIBED AS PRINCE, S/O.JOSE IN THE ANNEXURES), S/O.M.S.THOMAS, PUTHENPURAKKAL, THEKKUTHODU MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENTS: ------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PUSHPA K.NAIR, W/O.P.J.VENUGOPAL, RANI BHAVAN, THANNITHODU VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA. (NOW RESIDING AT 'PALLAVI', III/894F, SECRETARIAT COLONY, KARAKULAM P.O., THIRUVANANTHAPURAM 695 005. R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JJJ Crl.MC.No. 2679 of 2011(D) APPENDIX PETITIONERS ANNEXURES: ANNX. 1: COPY OF CMP NO:1005/10 FILED BY THE 2ND RESPONDENT BEFORE THE JFMC-II, PATHANAMTHITTA. ANNX. 2: COPY OF THE FIR REGISTERED BY THE THANNITHODU POLICE IN CRIME NO:9/2010 ANNX. 2A: TRUE ENGLISH TRANSLATION OF ANNEXURE 2 ANNX. 3: COPY OF THE FINAL REPORT IN CRIME NO:9/2010 ANNX. 3A: TRUE ENGLISH TRANSLATION OF ANNEXURE 3 ANNX. 4: COPY OF REPORT IN CRIME NO:9/2010 DATED 10.3.2010 SUBMITTED BY S.I. OF POLICE, THANNITHODU BEFORE THE JFMC-II PATHANAMTHITTA ANNX. 5: COPY OF SCENE MAHAZAR DATED 12.2.2010, 10.30 AM PREPARED BY ASSISTANT SUB INSPECTOR OF THANNITHODU POLICE SATATION ANNX. 6: COPY OF MAHAZAR DATED 12.2.2010, 10.30 AM PREPARED BY ASSISTANT SUB INSPECTOR OF THANNITHODU POLICE SATATION ANNX. 7: COPY OF THE FINAL REPORT DATED 30.4.2010 IN FIR NO:9/2010 DATED 11.2.2010 OF THANNITHODU POLICE STATION RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. NO: 2679 OF 2011 ------------------------------------------ Dated this the 2nd day of November, 2011 O R D E R The petitioner is the third accused in C.C. No:479/2010 which is now pending before Judicial First Class Magistrate Court-II, Pathanamthitta. A complaint was filed by the husband of R2 alleging offences punishable under sections 379, 403, 406, 426 and 447 read with 34 IPC. After conducting investigation the charge sheet was laid against the accused alleging offences under sections 447 and 427 read with 34 IPC. The learned counsel for the petitioner submits that as against this petitioner, who is the third accused, there are no materials at all and so the proceedings may be quashed. It is submitted by the learned counsel that second respondent was a tenant in respect of the shop room which was rented out to her by the first accused as per rental Crl.M.C.No:2679/2011 2 agreement dated 24.12.2007. It was stated that the lease was renewed in 2008 and 2009 but it was not renewed thereafter. It can be argued that by adopting the principle of holding over, the tenant can continue in possession of the premises. But the learned counsel submits that in the complaint nowhere it is stated that R2 was in actual possession of the shop room mentioned earlier. The complaint was that on 27.1.2010, during day time, this petitioner and other accused person trespassed into that shop room. When the second respondent and their husband went to the shop they could see the room having been trespassed upon and some articles therein, including medicine/drugs having been destroyed. After completing the investigation, the charge sheet was laid against this petitioner and other accused alleging offences under sections 447 and 427 read with 37 IPC. Crl.M.C.No:2679/2011 3 The learned counsel for the petitioner submits that the petitioner, who is the third accused, is a practising advocate and as such there was no possibility at all for the petitioner to go to that shop room or to do the mischievous act complained of. The learned counsel submits that on going through the statements recorded by the Police under section 161 CrPC, it can be seen that nobody did see this petitioner entering the shop room or committing any mischief so as to implicate him for the offences as mentioned above. The complainant and her husband did not see the incident. They have only hearsay information. Statements recorded under section 161 CrPC do not show that any witness had actually seen this petitioner (A3) entering the shop room or committing mischief. Therefore, the learned counsel submits that it would be too harsh to put the accused to trial. Considering all the facts mentioned above, I find that the case, as against this petitioner, cannot be proceeded Crl.M.C.No:2679/2011 4 with as there is no sufficient material to proceed against him. Hence, this petition is allowed. Further proceedings, as against this petitioner, in C.C. No:479/2010 will stand quashed. It is made clear that this will not affect the case against other accused. N.K. BALAKRISHNAN, JUDGE jjj