IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 4101 of 2005() ------------------------- CC.146/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... PETITIONER: ACCUSED ------------------- ANIL KUMAR @ UNNI, PULINILKUNNATHIL HOUSE, CHETHACKAL.P.O, CHETHACKAL VILLAGE, RANNI TALUK. BY ADV. SMT.DEEPA G. PAL RESPONDENTS: STATE AND COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAMACHANDRAN PILLAI @ RAJENDRAN PILLAI, USHAVILASAM, CHERUKULANJI.P.O, VADASSERIKKARA VILLAGE, RANNY TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY FOR R2 R1 BY PUBLIC PROSECUTOR C.M. KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. 14883/05 IN CRL.M.C.4101/05 DISMISSED. 20-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.4101 OF 2005 ---------------------------------------------- Dated, 20th June, 2008. ORDER The petitioner is the sole accused in C.C.No 146/2004 pending before the Judicial First Class Magistrate Court, Ranny which is a case instituted based upon Final Report, Annexure-I, in crime No. 25/2004 of Ranny Police Station for the offence under section 379 of IPC. The petitioner now seeks an order under section 482 of Cr.P.C. quashing Annexure-I Final Report report and all further proceedings thereon pending before the court below. 2. The averments in the above Crl.M.C. is to the effect that the petitioner is the son of the 2nd respondent's brother. Both the petitioner's father and the 2nd respondent claim ownership over the property in question as the same belonged to their mother. The allegation against the petitioner is that he had cut and removed 55 rubber trees, two coconut trees and two jack trees from the property owned by the 2nd respondent by CRL.M.C.4101/05 -:2:- the end of December 2003 and in between 16-1-2004. On the strength of the above allegation, the 2nd respondent lodged information before the Ranny police station wherein F.I.R in crime No.25/2004 for the offence under section 379 of IPC was registered against the petitioner. The Ranny Police, after investigation, filed Annexure I final report on the basis of which the Judicial First Class Magistrate, Ranny took cognizance and instituted C.C.No.146/2004 for the above offence. It is the above case and Annexure I final report are being challenged in this Crl.M.C. and the petitioner prays that the above proceedings may be quashed. 3. I have heard the learned counsel for the petitioner as well as the counsel for the 2nd respondent and also the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner has already approached the Munsiff's court, Ranni by filing O.S No.47/2004, copy of which is produced as Annexure 2. It is submitted by the CRL.M.C.4101/05 -:3:- counsel that in the above suit, the petitioner has got an interim order of injunction restraining the 2nd respondent/de facto complainant from dispossessing the petitioner from the property in question. It is the further case that as a counter blast to the above suit, the 2nd respondent filed a suit, i.e., O.S.No.74/2004 before the same court which is produced as Annexure-3. It is also submitted by the petitioner's counsel that despite the above civil suit, the 2nd respondent has filed another suit also, i.e., O.S.211/2004 claiming damages. Thus the counsel for the petitioner submitted that a very serious civil dispute is pending before the competent court and the petitioner also claimed absolute right over the property as evidenced by Annexure 2 and the interim order passed thereon and therefore, according to the learned counsel for the petitioner, even if the so called items of trees were removed, it will not amount to theft as there is no dishonest intention. On the other hand, the said act can only be treated as part of his exercise of CRL.M.C.4101/05 -:4:- right over the property. 5. Per contra, the learned counsel for the 2nd respondent submitted that the petitioner herein had preferred the suit O.S.47/2004 only on 25-2-2004 as a counter blast to the criminal proceedings initiated at the instance of the 2nd respondent. On the basis of Annexure-I Final Report, the learned counsel submitted that the 2nd respondent approached the police on 18-1- 2004 alleging the offence committed by the petitioner and after registration of crime on 18-1-2004 the police conducted a thorough investigation and the stolen properties were recovered in accordance with law. It is also the case of the 2nd respondent that they have approached the civil court for claiming damages by filing O.S.211/2004. According to the counsel for the 2nd respondent, the 2nd respondent has absolute ownership and right over the property in question and he is residing far away from the property and it was in this circumstances, the petitioner herein filed O.S.47/2004 on CRL.M.C.4101/05 -:5:- the ground of adverse possession. According to the counsel, merely a suit was filed for adverse possession, no absolute ownership will confer on the plaintiff/petitioner. 6. The learned Public Prosecutor submitted that on the basis of the information furnished by the 2nd respondent, police have registered F.I.R. and subsequently, investigation was undertaken which resulted in Annexure -I final report and during the investigation it is found that the petitioner has committed offence under section 379 of IPC. It is also pointed out that during police investigation, no evidence or documents produced by the petitioner to substantiate his right over the property defending the criminal allegation. 7. I have considered the submissions made by the counsel and also perused the documents and records and materials available on records. The place of occurrence in the present case is pertained to the property in Sy.No.29/16-4 (0.789 hectares) and CRL.M.C.4101/05 -:6:- Sy.No.29/16-15 (0.0324 hectares), the total extent is 0.01113 hectares which is equivalent to 27 1/2 cents. From the submissions and various records filed by the parties, it appears to me that a civil dispute is pending before the competent court and each of them are claiming their right over the property. In the present case, after registering the crime, police conducted investigation and through their investigation they found that the petitioner has committed the offence. In support of the above allegation they have produced various materials. Admittedly, The petitioner herein had preferred the suit O.S.47/2004 only on 25-2-2004 whereas FIR was registered on 18-1-2004. At the time of lodging the FIR, whether the petitioner has got any right over the property is a question of fact to be decided at the time of trial by both the criminal court as well as the civil court. At present the police after investigation found that the petitioner is guilty of the offence under section 379 of IPC. I am not proposed to enter into the merits of CRL.M.C.4101/05 -:7:- the criminal case against the petitioner. Whatever the defence the petitioner has got, the same can be raised before the trial court and if he has got any right over the property, the same can be brought to the notice of the trial court. The counsel for the petitioner submitted that even if the removal of the property is admitted, it will not amount to theft since the petitioner got right over the property and no dishonest intention can be attributed with the removal of property. It is relevant to note that in a proceedings under section 482 of Cr.P.C., this Court has no jurisdiction to conduct an enquiry and decide the right, when the facts are under dispute. Whether the petitioner has got right over the property in question and whether he had dishonest intention in removing the articles etc. are to be decided on the basis of evidence to be adduced at the time of trial. It is also open to the petitioner to raise all his contentions regarding his right over the property and other pleadings before the trial court at the time of framing of charge. CRL.M.C.4101/05 -:8:- 8. In the light of the above facts and circumstances, I am not inclined to interfere with the criminal trial, but the petitioner is at liberty to raise all objections and pleadings at the time of framing of charge and with the above observation, the Crl.M.C. is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.M.C.4101/05 -:9:- V.K.MOHANAN, J. No.... Judgment/Order Dated: