IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 Crl.MC.No. 1085 of 2008() ------------------------- CC.287/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... PETITIONER(S): ACCUSED ---------------------- MUSTAFA, S/O. PATHUMMAKUTTY, RESIDING AT THAYATH HOUSE, NEAR ARTAKKA PALLI, BENGALI MOHALLA, KANNUR CITY, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENT(S): COMPLAINANT -------------------------- 1. A.T.SHAMSUDHEEN, S/O. UMMER KOYA, AGED 53 YEARS, NEAR ARTAKKA PALLI, KANNUR CITY, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR P.A.SALIM SRI.A.MOHAMED MUSTAQUE FOR R1 SRI.KAUSER EDAPPAGATH FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1085 OF 2008 =========================== Dated this the 4th day of January,2010 ORDER Petitioner is the second accused in C.C.287/2006 on the file of Judicial First Class Magistrate-II, Kannur taken cognizance for the offence under sections 447, 427 and 420 read with section 34 of Indian Penal Code as against three accused on Annexure A1 complaint filed by the first respondent, after conducting an inquiry under section 202 of Code of Criminal Procedure. Case of the first respondent in Annexure A1 complaint is that he purchased seven cents of land in R.S.267 and 268 of Kannur-I village, as per registered sale deed No.1457/1980 from Mukkali Hassan, who in turn purchased the property as per registered sale deed No.773/1977 of S.R.O. Kannur from the legal heirs of deceased Crl.M.C.1085/2008 2 Mahamood. According to petitioners Mukkali Hassan purchased the property from accused 1 to 3 on their representation that they are the only legal heirs of deceased Mahamood and while Mukkali Hassan has been in possession of the property, first respondent purchased it in 1980 and later accused 4 and 5 trespassed into the property and then it was disclosed that fourth accused is also one of the legal heirs of deceased Mahamood and accused 1 to 3 by inducing Mukkali Hassan to purchase the property on the representation that they are the only legal heirs, committed the offence under section 420 of Indian Penal Code and the other accused by committing trespass into the property committed the offence under sections 447 and 427 of Indian Penal Code. Petitioners did not appear before the learned Magistrate. Accused 1 and 3 appeared and after recording the statement of first respondent, as provided under section 244 of Code of Criminal Procedure learned Magistrate heard the Crl.M.C.1085/2008 3 first respondent and accused 1 and 3 and by Anneuxre A2 order dated 14.7.2006 discharged them under section 245(1) of Code of Criminal Procedure, finding that if at all the remedy is only civil and no criminal offence is attracted. This petition is filed under section 482 of Code of Criminal Procedure to quash the case as against petitioner. 2. Learned counsel appearing for petitioner and the learned counsel appearing for first respondent and learned Public Prosecutor were heard. 3. The case as against the petitioner is the same as against accused 1 and 3. The only case is that they induced Mukkali Hassan, the assignor of the first respondent, to believe that they are the only legal heirs of deceased Mahamood and induced him to purchase seven cents of property in R.S. No.267 and 268 of Kannur-I Village and later it was disclosed that fourth accused is also one of the legal heirs and the accused 1 to 3 thereby Crl.M.C.1085/2008 4 committed the offence under section 420 of Indian Penal Code. When accused 1 and 3, against whom the very same case is alleged, were discharged by Annexure A2 order, in the absence of any other specific case as against the petitioner, different from the one against accused 1 and 3, the offence as against the petitioner can only be quashed. On the facts also the only case is that the three accused together induced Mukkali Hassan to purchase the property on the representation that they are the only legal heirs of deceased Mahamood, when in fact fourth accused is also one of the legal heirs. If at all the inducement is made against Mukkali Hassan, the assignor of first respondent. Mukkali Hassan has no case that he has been induced by a wrongful representation by the accused or that the accused committed an offence under section 420 of Indian Penal Code. As rightly found by learned Magistrate by Annexure A2 order, if at all first respondent has a remedy, it is only civil. The Crl.M.C.1085/2008 5 continuation of the criminal proceedings as against the petitioner is only an abuse of process of the court. It is liable to be quashed. Petition is allowed. C.C.287/2006 on the file of Judicial First Class Magistrate-II, Kannur as against the petitioner is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006