IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 642 of 2001() ----------------------------- CC.140/1998 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVISION PETITIONER/COMPLAINANT: --------------------- VELLERI MOOSA, S/O.ABDURAHIMAN HAJI, ALIKKAL, UGRAPURAM P.O. AREACODE. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/ACCUSED/STATE: --------------- 1. NOTTANVEEDAN AYISHA BEEVI, W/O.RAHMATHULLA, PATHANAPURAM P.O., KEEZHPARAMBA. 2. A.I.RAHMATHULLA, PATHANAPURAM, KEEZHPARAMBA. 3. SIVAN, S/O.ANDI KOMARAM, ULLUPARAMBA, MOORKANAD. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.MUJEEB FOR R1,2&3 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.642 of 2001 -------------------------------------- Dated this the 29th day of September, 2008. ORDER Respondents 1 to 3 and counsel remained absent. Heard counsel for revision petitioner and the Public Prosecutor. 2. Case of revision petitioner is that he owned 4.85 acres of plantation in R.S.No.6/1 of Vettilappara Village. Adjacent property on the south belonged to first respondent. Second respondent is the husband of first respondent. Third respondent is their worker. It is alleged that as per instruction of respondents 1 and 2, third respondent set fire to the plantation in the property of revision petitioner on 2.2.1996 at about 11 a.m. causing loss of about Rs.7 lakhs to the revision petitioner. Police registered a case as Crime No.33 of 1996 in respect of the incident but referred it. Aggrieved, revision petitioner filed a private complaint in the court below against respondents 1 to 3 alleging offences punishable under Sections 435 and 109 read with Section 34 of Indian Penal Code. Case was taken on file as C.C.No.140 of 1998. Court below recorded the sworn statement of revision petitioner and his witnesses but found that no prima facie case is made out against respondents 1 to 3 and discharged them under Section 245(1) of Code of Criminal Procedure which is called in question in this proceedings. Learned counsel submitted that revision petitioner has made out a case which if unrebutted would warrant conviction and therefore court below was not justified in discharging respondents 1 to 3. Crl.R.P.No.642/2001 2 4. PWs 1 and 2, apart from stating about the incident in the property of revision petitioner did not say anything regarding the alleged involvement of respondents 1 to 3. According to PW2, second respondent had given him Rs.2,000/- since fire had spread into his property as well. PWs 3 and 4 claimed that they witnessed the alleged incident. According to PW3, third respondent set fire on the eastern portion of the plantation belonging to first respondent, fire spread into the plantation of revision petitioner also and caused loss. He stated that fire was carried into the plantation of revision petitioner in the wind. PW4 however, stated that respondent 1 and 3 trespassed into the plantation of revision petitioner and set fire at 11 a.m. on the day of incident. 5. Though PW3 has no case that third respondent was present at the spot and it is also not his case that respondents 1 and 3 trespassed into the plantation of revision petitioner and set fire, PW4 stated that respondents 1 and 3 trespassed into the plantation of revision petitioner and set fire. This material discrepancy was taken note of by the court below. Learned Chief Judicial Magistrate also observed from Ext.D1, copy of plaint preferred by revision petitioner for recovery of damages consequent to the loss caused to him that in Ext.D1 what is stated is that respondents 1 to 3 set fire in the plantation of first respondent, left the place, fire spread into the plantation of revision petitioner and caused damage. So, going by Ext.D1 it is not a case of any of respondents trespassing into the plantation of revision petitioner and instead, their allegedly setting fire in the plantation belonging to first respondent which Crl.R.P.No.642/2001 3 spread to the plantation of revision petitioner also. Learned Chief Judicial Magistrate observed that materials on record are not sufficient to say that it was with any intention or with knowledge that the act is likely to cause damage to revision petitioner that respondents 1 to 3 allegedly set fire in the plantation belonging to the first respondent. 6. Even going by Ext.D1, copy of plaint preferred by revision petitioner it is difficult to say that respondents 1 to 3 intended to cause damage to revision petitioner. It is unlikely that they thought of setting fire to their own plantation and inviting loss, with the intention or even knowledge of fire spreading into the plantation of revision petitioner and causing loss. Assuming that the act of respondents 1 to 3 was negligent, that did not attract the offence punishable under Section 435 of Indian Penal Code. For the loss if any caused to revision petitioner, he has already gone before the civil court. In the facts and circumstances I do not consider it necessary to disturb the finding of learned Chief Judicial Magistrate that no prima facie case was made out against respondents 1 to 3. Revision Petition is therefore, dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.642/2001 4 Thomas P.Joseph, J. Crl.R.P.No.642 of 2001 ORDER 29th September, 2008