IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 3066 of 2009 -------------------------------------- MC.38/2009 of SUB DIVISIONAL MAGISTRATE, OTTAPALAM .................... PETITIONERS/COUNTER PETITIONERS 1 TO 9: 1. MUHAMMED @ MANU, S/O.UMMERKUTTY HAJI, PARAKKOTTU HOUSE, CHIRATTAKULAM, EDATHANATTUKARA. 2. MUHAMMED SHERIF, DO. KOTTPALLA, DO. 3. NAJEEB, S/O.UMMERKUTTY HAJI, DO. DO. 4. KUNHAYAMMU, S/O.UMMERKUTTY HAJI, DO. DO. 5. MUHAMMEDKUTTY @ KUNHAN, S/O.ABDU HAJI, DO., PADIKKAPADAM, DO. DO. 6. SHAJAHAN, S/O.ABU HAJI, DO. DO. 7. KUNHAYAMMU @ CHERIYON, S/O.ABU HAJI, DO. VATTAMANNAPPURAM, EDATHANATTUKARA. 8. KUNHAMMU, S/O.UNNEENKUTTY, PARAKKOTTU HOUSE, NALUKANDAM, EDATHANATTUKARA. 9. INTHIYAS, S/O.MUHAMMEDKUTTY, PARAKKOTTU HOUSE, CHIRATTAKULAM, EDATHANATTUKARA. BY ADV. SRI.SUNNY MATHEW RESPONDENT: STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, NATTUKKAL POLICE STATION, PALAKKAD DISTRICT, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3066 of 2009 -------------------------- ORDER Petitioners are counter petitioners in M.C.No. 38/2009 on the file of Sub Divisional Magistrate, Ottapalam, initiated under Section 107 of Code of Criminal Procedure. Annexure-A1 order was passed under Section 111 of Code of Criminal Procedure stating that Sub Divisional Magistrate is satisfied by the report of Sub Inspector of Police, Nattukal that petitioners are creating a tense situation and there is likelihood of further clashes and disturbance to the public living in the area and hence, petitioners are directed to execute a bond, for keeping peace and public tranquility in the area, worth Rs.20,000/- (Rupees Twenty thousand only) with two sureties for the like sum and to appear before the court on 5.8.2009 and show cause why they shall not execute the bond. This petition is filed under Section 482 of Code of Criminal CRMC 3066/09 2 Procedure to quash the proceedings contending that continuation of the proceedings is only an abuse of process of the court. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Though action was taken under Section 107 of Code of Criminal Procedure, based on the report of Sub Inspector of Police, Nattukal, it is clear from Annexure-A1 order that the allegations against petitioners were that they are involved in Crime Nos.87/2009 and 92/2009 of Nattukal Police Station and Crime No.259/2009 of Mannarkad Police Station. Copy of FIR in Crime No.87/2009 made available by the learned counsel appearing for the petitioners shows that the case was registered on 3.5.2009 based on the F.I. Statement of the brother of the deceased father of the petitioners. The allegation is that on 29.4.2009 at about 9.30 p.m. the accused therein trespassed into the rubber estate of the first informant and committed theft of rubber CRMC 3066/09 3 sheets and thereby committed the offences under Sections 447, 506(1) and 379 read with Section 34 of Indian Penal Code. FIR in Crime No.259/2009 made available shows that that case was also registered based on the F.I. Statement of the same person, wherein, it is alleged that on the morning at 6.30 a.m. of 29.4.2009, petitioners trespassed into another estate of the first informant and committed theft of latex and thereby committed offences under Sections 447, 506(1) and 379 read with Section 34 of Indian Penal Code. FIR in Crime No.92/2009 made available shows that that case was registered on 11.5.2009, based on a private complaint filed before Judicial First Class Magistrate's Court, Mannarkad by the son of the first informant in the other cases, against petitioners 2, 4, 7 and 8 alleging that they committed offences under Sections 323 and 324 read with Section 34 of Indian Penal Code by assaulting the son of the first informant in other cases on 23.11.2008. C.M.P. CRMC 3066/09 4 No.995/2009, which was sent for investigation, was filed before the learned Magistrate only on 5.5.2009, though the alleged incident occurred on 23.11.2008. 4. Learned Public Prosecutor submitted that apart from these three cases, there was no other case of breach of peace committed by petitioners. As rightly pointed out by the learned counsel appearing for the petitioners, it is clear that action was taken because of the pendency of the civil dispute between the petitioners and the first informant and his son in Crime Nos.87/2009 and 259/2009. The dispute is with regard to the property left behind by the father of the first informant in Crime No.87/2009 and petitioners, who are the children of the pre-deceased brother of the first informant. In the nature of the allegations and taking into account the fact that Crime Nos. 87/2009 and 259/2009 were in respect of an incident occurred on the morning and night of 29.4.2009 and CRMC 3066/09 5 Crime No.92/2009 was in respect of an alleged incident which took place on 23.11.2008, but complaint was lodged only on 11.5.2009, it is clear that facts and circumstances of the case do not warrant initiation of proceedings under Section 107 of Code of Criminal Procedure. In such circumstances, the proceedings is to be quashed. Petition is allowed. Annexure-A1 order and M.C. No.38/2009 on the file of Sub Divisional Magistrate, Ottapalam are quashed. 2nd November, 2009 (M.Sasidharan Nambiar, Judge) tkv