IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Crl.MC.No. 765 of 2010() ----------------------------------- CC.117/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, ALUVA CRIME NO.1848/2008 OF ANGAMALY POLICE STATION, ERNAKULAM DIST. .................... PETITIONERS/ACCUSED 1 & 2 -------------------------------------------- 1. ANTU, AGED 42, S/O.LONAPPAN, PUTHUSSERY HOUSE, PRAMBAYAM KARA, MOOKKANNOOR VILLAGE. 2. DAVIS, AGED 40, S/O.LONAPPAN, PUTHUSSERY HOUSE, PRAMBAYAM KARA, MOOKKANNOOR VILLAGE. BY ADV. MR.P.SHAIJAN JOSEPH RESPONDENTS/COMPLAINANT ---------------------------------------------- 1. SUB INSPECTOR OF POLICE, ANGAMALY POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRAMBAYAM EAST KARSHAKA SAMITHI, PARAMBAYAM KARA, TABORE P.O., MOOKKANNOOR VILLAGE, ALUVA TALUK, REPRESENTED BY ITS PRESIDENT, PAUL, AGED 62, S/O.VAREED, PALAMATTOM HOUSE. R1 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.765 OF 2010 ------------------------------------------ Dated 24th March 2010 O R D E R Petitioners are the accused in C.C.117/2010 on the file of Judicial First Class Magistrate-II, Aluva taken cognizance for the offences under Sections 447 and 427 of Indian Penal Code and under Section 3(2) (a) of Prevention of Damages to Public Properties Act on Annexure-A3 final report. Prosecution case is that at the expense of the Government, an irrigation canal was constructed and handed over to Karshaka Samithi with CW1 as President and CW2 as Secretary and with the intention to cause damages to the concrete irrigation channel on 29/9/2008, at about 10.30 a.m, accused committed trespass into the irrigation Crmc 765/10 2 channel and using a JCB demolished the irrigation channel and caused a loss of Rs.50,000/- and thereby committed the offences. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that petitioners did not commit any offence and they were granted permission to re-construct irrigation channel as it is evident from Annexure-A4 plan signed by Assistant Engineer, Irrigation Section, Angamaly and in such circumstances, offences alleged are not attracted. It is submitted that first petitioner had submitted Annexure-A5 petition before District Magistrate, Ernakulam seeking a prayer to Dy.S.P, Perumbavoor to send to police constables at the time of construction of irrigation channel, and the District Magistrate has forwarded it to the Dy.S.P for necessary action and in such Crmc 765/10 3 circumstances, continuation of the proceedings is only an abuse of process of court. 2. Learned Public Prosecutor submitted that irrigation channel was constructed by the Government and was thereafter handed over to Karshaka Samithi, who has to maintain the same, and petitioners have no authority to demolish or cause damage to the irrigation channel and in such circumstances, the case cannot be quashed. 3. Based on Annexure-A4 plan produced by the petitioner, it cannot be said that irrigation department has permitted petitioners to affect any alteration on the existing irrigation channel. When irrigation channel was handed over to Karshaka Samithi, Assistant Executive Engineer, cannot of his own accord any such sanction. So also Annexure-A5 only establishes that petition was submitted before Crmc 765/10 4 the District Magistrate stating that there would be law and order problem and to prevent breach of peace and tranquility Dy.S.P be directed to send police constables. District Magistrate did not conduct any enquiry on Annexure-A5. As is clear from the endorsement seen therein, District Magistrate has only forwarded it to the Dy.S.P for necessary action. That does not mean that District Magistrate or Dy.S.P has authorised the petitioners to cause any alteration to the existing irrigation channel much less damage it. In such circumstances, the case cannot be quashed as sought for. Petitioners are entitled to raise all the contentions before the learned Magistrate at the time of trial. M.SASIDHARAN NAMBIAR, JUDGE. uj.