IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 CRL.MC.NO. 509 OF 2011() ------------------------------------- CC.776/2010 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... PETITIONER(S): ACCUSED ------------------------------------- K.KUNHIRAMAN,S/O.KELAPPAN,NON-HEREDITARY TRUSTEE,SREE THRICHERUMANNA ALIAS KOTTIYOOR DEVASWOM,& SECRETARY,SRI KOTTIYOOR PERUMAL SEVA SANGHAM,KOTTIYOOR. BY ADV. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. T.BALAN NAIR,CHAIRMAN, SREE THRICHERUMANNA ALIAS KOTTIYOOR DEVASWOM, KOTTIYOOR,PIN-670 674. 2. THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-31. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.509 of 2011 ==================================== Dated this the 17th day of February, 2011 O R D E R Petitioner, it is stated is a non-hereditary trustee of Sree Thricherumanna alias Kottiyoor Devaswom appointed by this Court by Annexure-A, judgment and hence along with other trustees in joint possession of property of the Devaswom, movable and immovable. While so another trustee filed Annexure-B, complaint against petitioner alleging that petitioner trespassed into property of the Devaswom and committed mischief by demolishing the fence causing loss to the Devaswom. Learned Judicial First Class Magistrate, Koothuparamba has taken cognizance and issued process to the petitioner and filed C.C. No.776 of 2010. Petitioner challenges Annexure-B, complaint and proceedings taken thereon contending that since he is one of the non-hereditary trustees in joint possession of the property, no question of trespass is involved and that the allegations are false. It is pointed out that petitioner is aged about 71 years and that attempt of complainant is only to depict petitioner as an accused in the proceedings of the Devaswom. Learned counsel has made a fervent plea to quash proceeding against petitioner. I CRL.M.C. No.509 of 2011 -: 2 :- have heard the learned Public Prosecutor also. 2. I am not going into the question whether petitioner is in joint possession of the property with the complaining trustee in his capacity as non-hereditary trustee appointed by this Court as per Annexure-A. Assuming so, it cannot be argued that no offence under Sec.427 of the Indian Penal Code (for short, “the Code”) is made out (if allegations are true) in view of the Explanation 2 to Sec.425. It is pointed out that a civil suit is pending as O.S. No.102 of 2010 in the court of learned Munsiff, Koothuparamba at the instance of Mooppan of Elaneer Madom for injunction against the trustees. These are matters to be thrashed out in evidence. Having heard leaned counsel and learned Public Prosecutor I am not inclined to think that disputed questions of facts are to be settled in this proceeding under Sec.482 of the Code of Criminal Procedure (for short, “the Cr.P.C.”). 3. Learned counsel for petitioner submitted that petitioner is aged 71 years and it is not possible for him to attend the court every now and then. I make it clear that it is open to the petitioner to move appropriate application under Sec.205 of the Cr.P.C. for exemption and if any such application is CRL.M.C. No.509 of 2011 -: 3 :- preferred learned Magistrate shall consider that application and pass appropriate orders having regard to the age of petitioner and the nature of the allegations made against him. Criminal Miscellaneous Case is disposed of with the above direction. THOMAS P. JOSEPH, JUDGE. vsv