IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.MC.No. 2412 of 2009() ----------------------------------- ST.281/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONERS/ACCUSED 1 AND 2: ------------------------------------------------ 1. KANNAN, S/O.MUTHU, THONIPPALLAM VEEDU, KOLAYAKKAD, MANJAPPRA, PALAKKAD. 2. KRISHNAN, S/O.MUTHU, THONIPPALLAM VEEDU, NENMARA, AYALLUR, PALAKKAD. BY ADV. MR.P.VIJAYA BHANU MR.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS/ COMPLAINANT & STATE: ------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.B. VINOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2412 of 2009 -------------------------- ORDER Petitioners are the accused in S.T.No.281/2009 on the file of Judicial First Class Magistrate's Court, Alathur, taken cognizance on Anenxure-C final report for the offences under Sections 143, 144, 447 and 188 read with Section 149 of Indian Penal Code. Petitioners have earlier filed another petition under Section 482 of Code of Criminal Procedure to quash the FIR, which was later withdrawn. Case of the petitioners is that to prosecute them for an offence under Section 188 of Indian Penal Code, a complaint as provided under Section 195 of Code of Criminal Procedure is mandatory and in the absence of a complaint by the public servant, learned Magistrate should not have taken cognizance of the offence under Section 188 of Indian Penal Code. It is also contended that when the offence under Section 447 forms part of CRMC 2412/09 2 the same transaction and prosecution for the offence under Section 188 of Indian Penal Code is vitiated, petitioners cannot be prosecuted for the offence under Section 447 of Indian Penal Code also. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners, relying on the decision of a learned single Judge of this Court in Joseph George v. State of Kerala (2000 (3) KLT 275), argued that on identical facts, this Court held that when prosecution for the offence under Section 188 of Indian Penal Code will not stand in the absence of a complaint, prosecution for the offence under Section 447 is only an abuse of process of the court, which is liable to be quashed under Section 482 of Code of Criminal Procedure. Argument is that as is clear from Annexure-C final report, prosecution case is that violating the order of injunction passed by CRMC 2412/09 3 the Munsiff's Court, Alathur, petitioners committed trespass and thereby committed the offences. Though learned single Judge in Joseph George's case (supra), relying on the decision of the Apex Court in Basir-ul-Huq v. State of West Bengal (AIR 1953 SC 293) held that when prosecution for an offence under Section 188 of Indian Penal Code is not maintainable, in view of the bar provided under Section 195 of Code of Criminal Procedure, accused cannot be prosecuted for the offence under Section 447 of Indian Penal Code also, earlier decision of another learned single Judge in M.Chacko v. State of Kerala (1983 KLT 1060) was not brought to the notice of the learned single Judge when the decision in Joseph George's case (supra) was rendered. As in this case, accused in that case was prosecuted for offences under Sections 143, 144, 188, 427, 447 and 506 read with Section 149 of Indian Penal Code. Following the decision of the Apex Court in Basir-ul-Haq's case (supra), it was CRMC 2412/09 4 held that prosecution for the offence under Section 188 of Indian Penal Code was not initiated on the written complaint of the authority concerned and hence, to that extent, prosecution will not lie. But, prosecution for the offences under Sections 427 and 447 of Indian Penal Code would stand. It was held: “The averments in this regard relate to what is alleged to be the private property of CW1 and involve trespass into private land and commission of mischief in regard to the compound wall and fence of CW1. These are offences against CW1 and the prosecution could be initiated by CW1 either directly or through the instrumentality of the police and that is what has been done in the instant case. The two sets of offences are distinct offences arising from distinct averments and facts. This is not a case where during the course of a single transaction offences falling within the two categories are committed. In this case, there are two different transactions, may be committed successively, nevertheless separately and distinctively. Therefore, there can be a bifurcation for the purpose of seeing whether the initiation of the prosecution is legally sustainable. I hold that except in regard to the offences under Section 188 IPC, the prosecution is CRMC 2412/09 5 sustainable. This is not a case where the entire proceedings have to be quashed.” Learned counsel appearing for the petitioners argued that when there is a conflict in the two decisions, in Chacko's case and Joseph George's case (supra), the question is to be referred to the Division Bench. 4. I do not find it necessary to refer the case to the Division Bench in view of the conflicting decisions. I am in full agreement with the view taken by Justice U.L.Bhat in Chacko's case (supra). This decision was not considered by the learned single Judge while considering Joseph George's case (supra). The charge in this case does not show that intention of the petitioners was to violate the order of injunction and hence, the offence under Section 188 of Indian Penal Code was committed. On the other hand, the allegation itself is that suppressing the order of injunction, the trespass CRMC 2412/09 6 was committed. Therefore, as held in Chacko's case (supra), the two sets of offences are distinct offences arising from distinct averments and facts. In such circumstances, the fact that prosecution for the offence under Section 188 of Indian Penal code is not sustainable, is not a ground to quash the prosecution with regard to the offence under Section 447 of Indian Penal Code. Prosecution of the petitioners for the offences under Sections 143, 144 and 447 read with Section 149 of Indian Penal Code will lie. In such circumstances, petition is allowed in part. Prosecution lodged against the petitioners with regard to the offence under section 188 of Indian Penal Code is quashed. Proceedings with regard to the other offences will continue. 11th August, 2009 (M.Sasidharan Nambiar, Judge) tkv