IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 2095 of 2006() ------------------------- CC.272/2006 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER: ACCUSED 1 & 2 ------------------- 1. P.K.THOMAS, S/O.LUKA, AGED 61 YEARS, PUTHIYAKUNNEL HOUSE, UZHAVOOR P.O., KOTTAYAM. 2. STANES THOMAS, S/O.THOMAS.P.S., AGED 34 YEARS, PUTHIYAKUNNEL HOUSE, UZHAVOOR P.O., KOTTAYAM. BY ADV. SRI.C.HARIKUMAR SRI.VIZZY GEORGE KOKKAT SRI.RAVIDASAN.N.S. SRI.ARAVINDA KUMAR BABU T.K. RESPONDENTS: STATE AND COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH THE SI OF POLICE, KURAVILANGAD POLICE STATION, KOTTAYAM. 2. ASST.ENGINEER, P.W.D. (ROADS), KURAVILANGAD, KOTTAYAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON 25/08/2008 PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2095 of 2006 ------------------------------------- Dated this the 25th day of August, 2008 ORDER Petitioners face indictment in a prosecution alleging the offence punishable under Section 3(2)(c) of the Prevention of Damage to Public Property Act r/w Section 34 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. That crime in turn was registered on the basis of a complaint filed by the 2nd respondent before the police. 2. The petitioners wanted to start a tyre retreading exercise unit to facilitate traffic to their plot from the road. The 1st petitioner applied for putting up a slab over a drain. There was already a slab covering the drain. But they wanted a stronger slab to be put to facilitate traffic over the same. An application was made before the 2nd respondent for the same on 09.11.2005 and a copy of the same is produced as Annexure-A1. Annexure-A2 order dated 11.11.2005 was issued by the 2nd respondent in which sanction was accorded to construct a covering slab as prayed for by the petitioners in Annexure-A1. In furtherance of Annexure-A2, Annexure-A3 agreement was also executed. According to the petitioners, they commenced the work. But as they were continuing with the Crl.M.C. No.2095 of 2006 2 work for mala fide reasons, Annexure-A4 order directing stoppage of proceedings was issued to the petitioners. Operative portion of Annexure-A4 dated 26.2.06 reads as follows: “Now you are misusing the agreement. Hence you are requested to stop the present work and restore the foot path in original condition or to remit the rectification charges to the department within 3 days positively on receipt of this letter.” (emphasis supplied) According to the petitioners though this letter dt.26.02.06 was received by him and he was willing to deposit the rectification charges, without giving the petitioners sufficient time to comply with Annexure-A4 order, a complaint was filed before the police and F.I.R in Crime No.57 of 2006 was registered on 28.02.06 - without even waiting for elapse of 3 days from the date of Annexure-A4 order. Investigation was conducted after registration of the F.I.R and the petitioners apprehending arrest came to this Court to seek anticipatory bail. By Annexure-A3 order dt.10.03.06 in B.A.No.1342 of 2006, this Court issued Annexure-A6 order obliging the petitioners to deposit an amount of Rs.11,000/- within 5 days. Later anticipatory bail was granted after confirming that the petitioners had complied with Annexure-A6 order, submits the learned counsel for the petitioners. Annexure-A7 shows that the amount of Rs.11,000/- Crl.M.C. No.2095 of 2006 3 had been deposited as ordered in Annexure-A6. The petitioners approached this Court again with a petition under Section 482 Cr.P.C to quash the F.I.R registered and another Bench of this Court, as per order dt.23.06.06 in Crl.M.C.No.644 of 2006, disposed of the said Crl.M.C with appropriate observations. The option of the petitioners to challenge the final report if one is filed was kept open by the said order. A copy of the same is produced as Annexure-A8. It is thereafter that the final report has been filed and cognizance has been taken by the learned Magistrate. 3. The learned counsel for the petitioners submits that the initiation of proceedings is absolutely mala fide. Political reasons are prompting the 2nd respondent to file such a totally false case against the petitioners. The Investigating Officer has not applied his mind at all to the relevant facts and has mechanically, without even understanding the crucial issue, chosen to file the final report alleging commission of a criminal offence by the petitioners. It would be a traversity of justice if the petitioners were obliged to face an undeserved criminal prosecution on the basis of the final report filed by the Investigating Officer. A copy of the same is produced as Crl.M.C. No.2095 of 2006 4 Annexure-A9. It is prayed that powers under Section 482 Cr.P.C may be invoked to prematurely terminate the proceedings against the petitioners. The petitioners do not deserve to endure the trauma of such criminal prosecution, submits the learned counsel for the petitioners. 4. Having heard the learned counsel for the petitioners and the learned Public Prosecutor, I find considerable force in the submissions of the learned counsel for the petitioners. It is of vital importance that in the final report, there is no reference even made to Annexures-A1 application, A2 sanction order and Annexure-A3 agreement executed. It is not as though the petitioners undertook the work of construction of slab over the drain and demolition of the existing slab without prior permission of the authorities concerned. Annexures-A1 to A3 clearly indicate that there was at least an implied permission to demolish the existing slab and to put up a stronger slab in its place over the drain to facilitate traffic to the petitioners' property. That being so, the final report filed, totally turning a Nelson's eye to Annexures-A1 to A3, is totally unjustified, I conclude. The petitioners had only undertaken the work in pursuance of Annexures-A1 to A3. At worst all that could be Crl.M.C. No.2095 of 2006 5 alleged is that prior intimation was not given to the 2nd respondent before the actual work was undertaken. At worst this may be a non compliance with Annexure-A2 sanction order and Annexure-A3 agreement. But, at any rate, an offence under Section 3(2)(c) of the Prevention of Damage to Public Property Act cannot be said to have been committed. I do further note that as per the order in the bail application, the rectification charge of Rs.11,000/- had been paid by the petitioners again shows the petitioners bona fides and absence of culpable intent eloquently. To crown all other circumstance is the circumstance that F.I statement was filed and the F.I.R was registered without and before granting the petitioners time to comply with the alternative direction to pay the rectification charge of Rs.11,000/- within 3 days which they later paid to confirm their bona fides. 5. In any view of the matter, I am convinced that the proceedings initiated smells mala fides and permitting the prosecution to continue against the petitioners would be traversity of justice and miscarriage of justice of the worst variety. I am satisfied that the final report deserves to be quashed. Crl.M.C. No.2095 of 2006 6 6. The learned counsel for the petitioners further points out that later another Bench of this Court had passed Annexure- A10 judgment dt.10.01.07 in W.P(C) No.31887 of 2006 permitting the petitioners to complete the work and accordingly the work has later been completed in strict compliance with Annexure-A11 letter issued by the 2nd respondent to the 1st petitioner herein. 7. In the result: i) This Crl.M.C is allowed; ii) C.C.No.272 of 2006 of Judicial Magistrate of the First Class, Pala, pending against the petitioners is hereby quashed. (R.BASANT, JUDGE) rtr/-