IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Crl.MC.No. 3228 of 2009() ----------------------------------- CC.697/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... PETITIONERS/ACCUSED NO.1 AND 2 ----------------------------------------------------- 1. SWAMI GUADAPADANANDAPURI, S/O. KUNJIRAMAN NAIR, AGE 58 YEARS, SREE VIVEKANANDA YOGA ASRAM, PALODE, NANNIYODE. 2. SREEMATHI AMMA, D/O.MEENKSHI AMMA, SREEDHARA VILASAM, PALODE, NANNIYODE. BY ADV. MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENT/COMPLAINANT ------------------------------------------- 1. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R2 IMPLEADED ADDL.R2: SANAL KUMAR @ ANI, MANAGER, S.K.V.H.S., VIVEKANANDAPURAM, PACHA, PALODE, NEDUMANGAD. * IS IMPLEADED AS ADDL. 2ND RESPONDENT, VIDE ORDER DATED 27/10/2009 IN CRL.MA.NO.5842/2009. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.3228 OF 2009 ------------------------------------------ Dated 1st December 2009 ORDER Petitioners are the accused in C.C.697/2008 on the file of Judicial First Class Magistrate-I, Nedumangad taken cognizance for the offence under Sections 427 and 447 read with Section 34 of Indian Penal Code on Annexure-IV final report. Second respondent is the de facto complainant. Prosecution case is that in furtherance of their common intention, petitioners sold a tree standing in the property of S.K.U High School, Plavara to CW2 Abubackerkunju through CW3 Raveendran Pillai for Rs.450/- even though the tree would fetch a value of Rs.3,000/-, and committed trespass into school compound and cut and removed the tree and thereby committed the offences. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that when the property has been in the possession of second petitioner, no offence under Section 427 or 447 of Indian Penal Code is attracted. Petitioners would Crmc 3228/09 2 contend that second respondent has filed O.S.471/2005 before Munsiff court, Nedumangad for a permanent prohibitory injunction restraining second respondent from committing trespass into the said property where the tree was standing and by Annexure-I judgment learned Munsiff granted a decree in favour of second petitioner against second respondent and hence it is established that second petitioner was not in possession of the property. It is also contended that Annexure-V letter of Additional Tahsildar to Sub Inspector produced along with the final report also shows that property, from where the tree was cut, has been in possession of the second petitioner as shown by the report of Taluk Surveyor and in such circumstances, the case can only be quashed. 2. Though notice was served on second respondent, he did not appear. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Section 447 of Indian Penal Code provides the punishment for criminal trespass. Section 441 of Indian Penal Code defines criminal trespass as who ever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or Crmc 3228/09 3 having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence. It is therefore clear that to attract an offence under Section 447, there should be an entry into the property in the possession of another with an intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. Annexure-I judgment dated 17/1/2006 establishes that civil court has already found that second petitioner has been in possession of the property and granted a decree, restraining second respondent from trespassing into said property. Therefore when Annexure- I judgment of civil court establishes that second petitioner has been in possession of the property and second respondent has not been in possession of the same and a decree restraining second respondent from trespassing into the property is subsisting, an offence under Section 447 as against the second petitioner will not lie. Similarly allegation against first petitioner is also that in furtherance of the common intention along with second petitioner, tree was sold to second charge witness and they committed trespass into the property. Crmc 3228/09 4 When the property was not in the possession of second respondent but in the possession of second petitioner, an offence under Section 447 is not attracted even against first petitioner. Therefore, continuation of prosecution for the offence under Section 447 of Indian Penal Code is only an abuse of process of court and is liable to be quashed. 4. But offence under Section 427 of Indian Penal Code stands on a different fooling. Section 427 provides punishment for causing mischief. Mischief is defined under Section 425. under the said Section whoever with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief. If property belongs to second respondent and it was trespassed upon by second petitioner and reduced to her possession as seen from Annexure-V report, destruction of standing tree from the property cannot be said to be, not a mischief within the scope of Section 427 of Indian Penal Code. If that be so, it cannot be said that an offence Crmc 3228/09 5 under Section 427 of Indian Penal Code will not lie. In such circumstances, prosecution for said offence cannot be quashed. Petition is allowed. Cognizance taken by learned Magistrate in C.C.697/2008 for the offence under Section 447 of Indian Penal Code alone as against the accused is quashed. Learned Magistrate can proceed with the trial for the offence under Section 427 of Indian Penal Code. M.SASIDHARAN NAMBIAR, JUDGE. uj.