IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 Crl.MC.No. 662 of 2009(A) ------------------------------------ (FIR NO. 8/09 OF ARYANKODE POLICE STATION FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, NEYYATTINKARA) .................... PETITIONERS/ ACCUSED NO 1,2,3,4 AND 5: -------------------------------------------------------------- 1. UNNI, S/O.THANKAYYAN NADAR, AGED 46 YEARS, RESIDING AT CHEKKALATHOTTATHU PUTHEN VEEDU, ANCODE DESOM, PERUNKADAVILA VILLAGE,NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. RAJESH, S/O.RAJAYYAN NADAR,AGED 28 YEARS, RESIDING AT CHEKKALATHOTTATHU PUTHEN VEEDU, ANCODE DESOM, PERUNKADAVILA VILLAGE,NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. VARGHESE, S/O.THANKAYYAN NADAR, AGED YEARS,RESIDING AT MELAKONAM THEKKUMKARA PUTHEN VEEDU, ANCODE, PERUNKADAVILA VILLAGE, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM DISTRICT. 4. RAJAYYAN, S/O.THANKAYYAN NADAR, AGED YEARS, RESIDING AT CHEKKALATHOTTATHU PUTHEN VEEDU, ANCODE DESOM, PERUNKADAVILA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 5. PETER, S/O.FERNANDEZ, AGED YEARS, SANTHIMANGALAM VEEDU, ATHIYANNOOR,NEYYATTINAKARA. BY ADVS. MR.V.SURESH, MR.G.SUDHEER. RESPONDENTS/ STATE & DE FACTO COMPLAINANT: ---------------------------------------------------------------------------- 1. STATE OF KERALA,REP; BY ITS P.PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. CRL.M.C. NO. 662/2009-A: 2. SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM DISTRICT. 3. CIRCLE INSPECTOR OF POLICE, CIRCLE, NEYYATTINKARA. 4. SUB-INSPECTOR OF POLICE, ARYANCODE POLICE STATION,NEYYATTINKARA,THIRUVANANTHAPURAM. 5. S.SURESH, S/O. SADASIVAN, PC 3572, V BATTALION, KAP, ON DEPUTATION TO THE DEPT; OF ARCHAELOGY, THIRUVANANTHAPURAM. 6. DIRECTOR, DEPARTMENT OF ARCHAEOLOGY, STATE OF KERALA, THIRUVANATHAPURAM. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.M.C. NO. 662 OF 2009 = = = = = = = = = = = = = = = Dated this the 3rd day of March, 2009. O R D E R This petition is filed with a prayer to quash all proceedings against the petitioners. Heard the counsel for the petitioner as well as Public Prosecutor. The subject matter of dispute is an immovable property where it is alleged that there is a monument called Pandavanpara. The petitioners herein claim exclusive right over that property. There was a civil litigation filed as O.S.209/97 and the civil Court dismissed the case. Against that an appeal was preferred by the present petitioners as A.S.11/02 before the Sub Court, Neyyattinkara. The appellate court allowed the appeal and gave the following decree. “The title of the plaintiffs/appellants over the plaint schedule property is declared and an order of injunction is passed against the defendants not to trespass into the plaint schedule property. But I make it clear that the CRL.M.C. 662 OF 2009 -:2:- defendants/respondents have right to resurvey the properties including the plaint schedule properties and if it is found that the plaint schedule property is also to be included in the notified area the Government shall take necessary steps for the acquisition of the property. I also make it clear that the appellants shall not in any way destroy any part of the plaint schedule property or Pandavanpara by drilling or blasting till resurvey is over and necessary steps taken by the Government for acquiring the plaint schedule property. The parties shall bear their respective costs. 2. So a perusal of the operative portion of the appellate judgment would reveal that the plaintiffs are entitled to injunction against defendants. At the same time the Court has also made it very clear that if it is found that the plaint schedule property is also to be included in the notified area the Government shall take necessary steps for acquisition of the property. That Court also made it clear that the appellant shall not in any way destroy any part of CRL.M.C. 662 OF 2009 -:3:- the plaint schedule property or Pandavanpara by drilling or blasting till resurvey is over and necessary steps are taken by the Government for acquiring the plaint schedule property. Aggrieved by the decision of the appellate court the petitioner has moved a second appeal and plaintiffs also moved a second appeal for setting aside the directions given by the appellate court to move the Government for acquisition purposes. That was a petition filed in 2008 and the Government were not giving an order of injunction in their favour. As things stand today the petitioners herein are armed with a decree in their favour and I think the operation of the decree is not stayed. So there is a finding to the effect that the plaintiffs are entitled to an injunction against the defendants in the suit which will ipso facto establish the factum of possession of the plaintiffs over the plaint schedule property. But the question whether it can be acquired or not are all subject matter pending before this Court in second appeal and therefore the complaint filed alleging criminal trespass into the property by the plaintiffs cannot hold good CRL.M.C. 662 OF 2009 -:4:- for the reason a competent Court has granted an order of injunction in favour of petitioners. Therefore I allow the Crl.M.C and quash the proceedings in Crime No.8/09. But I make it clear that as ordered by the Court below there shall not be any attempt to commit waste in the property or trying to interfere with the monument called Pandavanpara and if any other relief is necessary for any of these parties they have to resort to it by moving an application before the Second Appellate Court which is having two appeals before it. Thus the Crl.M.C is allowed. M.N. KRISHNAN, JUDGE. ul/-