IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 2010 of 2006(A) -------------------------- CC.613/2005 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... PETITIONER(S): --------------- 1. P.T. HARIDAS, DWARAKA HOUSE, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. 2. M. SUMATHY HARIDAS, W/O.P.T.HARIDAS, DWARAKA HOUSE, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SMT.C.G.PREETHA SRI.M.PRAVEESH RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2 IMPLEADED MOHAMMED FEROZ, S/O.P.M.ABOOBACKER, M.C.HEAVEN APARTMENTS COMPOUND, CHERIA MANKAVU, THALIKULANGARA SCHOOL ROAD, KOZHIKODE. (ADDL.R2 IMPLEADED AS PER ORDER DT.6.3.2007 IN CRL.M.A.965/07) R1 BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- Crl.M.C.No. 2010 of 2006 ------------------------------------------- Dated this the 10th day of March, 2010 ORDER This petition is filed for quashing Annexure-3 charge- sheet. 2. Petitioners are accused nos.1 and 2. As per charge- sheet, they allegedly trespassed into the compound of M.C.Heaven Apartment and destroyed the iron gate, causing thereby, a loss of Rs.1,250/-. On a complaint made by the Joint Secretary of the Apartment Owners Welfare Association, a crime was registered against petitioners for offences under Sections 447, 427 and 34 of the Indian Penal Code ('the Code' for short) . 3. Learned counsel for petitioners submitted that a public pathway which was used by petitioners and public for their ingress and egress to public road was being obstructed by apartment owner. A gate was also constructed for causing obstruction to use of pathway by petitioners and public. The people of the locality raised Crl.M.C.No. 2010 of 2006 2 objection against the obstruction caused and petitioners made a complaint to the Corporation Authority also regarding the obstruction caused. But, in the mean time, a case was registered against petitioners, making false allegations. The title deeds of property will show that there was an existing public path way and hence petitioners have not committed any offence. If at all petitioners have encroached upon a public way, it is not an offence, since no trespass is involved, it is submitted. 4. Learned Public Prosecutor submitted that if there was any obstruction to public pathway, petitioners could have moved the Executive Magistrate under Section 133 of the Code. But no such proceedings are initiated by petitioners and therefore, there is no ground to quash Annexure-3 5. On hearing both sides and on going through documents produced, I find that there is a specific allegation in the charge-sheet that petitioners trespassed into the compound of the apartment and they also destroyed the iron gate. Two persons by name Gireesh and Shibu are Crl.M.C.No. 2010 of 2006 3 cited as eye witnesses and it can be presumed from their statements that they witnessed the offences being committed by petitioners. In the above circumstances, this court cannot resolve the dispute, regarding existence of a pathway or the alleged right of petitioners over the same etc. On a mere perusal of the title deeds and come to a finding that no offences were committed. The trial court cannot be found in fault with in proceeding against petitioners on the basis of the charge-sheet, which, prima facie, discloses the allegation of trespass and mischief committed by petitioners. 6. Petitioners are however, at liberty to establish their contentions before the trial court at the appropriate stage. But there is no ground to interfere with the proceedings initiated against petitioners on the basis of Annexure-3 charge-sheet. Petition is dismissed. K.Hema, Judge cms