IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2009/1ST ASWINA1931 Crl.MC.No. 2556 of 2007 ( ) --------------------------- CC.64/2007 of J.M.F.C.,ERATTUPETTA PETITIONER(S)/PETITIONER: ------------------------- A.D. THOMAS, S/O. SEBASTIAN, ARAYATHINAL VEEDU, PATHAMPUZHA KARA POONJAR THEKKEKKARA VILLAGE, KOTTAYAM DISTRICT. BY ADVS.SRI.BABY THOMAS SRI.LATHEESH SEBASTIAN COMPLAINANT(S)/RESPONDENTS: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTIONS HIGH COURT OF KERALA, ERNAKULAM. 2. DR. A.D.SEBASTIAN, S/O. SEBASTIAN, ARAYATHINAL VEEDU,PATHAMPUZHA KARA POONJAR THEKKEKKARA VILLAGE, KOTTAYAM DISTRICT. BY ADV. PUBLIC PROSECUTOR SRI.P.A. SALIM R2 BY ADV. SRI.SUNIL CYRIAC THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-09-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------------------------ Crl.M.C. No. 2556 of 2007 ------------------------------------------------------------- Dated this 23rd day of September, 2009 ORDER This petition is filed to quash the proceedings arising from Annexure-1 complaint. 2. According to complainant on 26.1.2006 at about 1.30 p.m. the accused 1 to 5, with intention to cause loss to the complainant, set fire to the grass which was heaped in the property and the fire went uncontrollable and thereby about 100 rubber tress were burnt and damage was caused to other trees also, standing in the property. The property jointly belongs to accused and complainant and others. Thereby the accused have committed offences under Sections 435, 448 and 34 of IPC. 3. Learned counsel for petitioner submitted that offence under Section 448 IPC will not be attracted in this case, since the complainant himself has no case that there was any house trespass by the accused. According to complainant, the property belongs to accused as well as the complainant and they have right over the property involved in this case. It is [Crl.M.C. 2556 of 2007] 2 also submitted that offence under Section 435 IPC is also not attracted in this case, since the prosecution has to establish that accused had the intention to cause damage to any property. 4. The property in question belongs to petitioner's sister, as evidenced by the documents produced in this case, which include judgments of the civil court also. Petitioner is holding the power of attorney of the sister. The complainant has no right over the property and hence no locus standi to lodge the complaint, it is submitted. Petitioner's sister has no grievance against the alleged act committed and hence the complaint has to be quashed, it is argued. 5. Learned counsel for respondent-complainant argued that in paragraph 2 itself it is averred that the property belonged to the mother of complainant and on her death, it devolved upon the children and hence he is also having right over the property. It is not correct to say that the property belongs to his sister. It is also stated in paragraph 6 of the complaint that he had paid the tax in respect of the property and the receipt is also produced. It is also argued that it is a fact that several trees were damaged in fire and this happened because of the act committed by the accused. As per Section [Crl.M.C. 2556 of 2007] 3 435 IPC, it is enough if the accused had the knowledge of his act by which it is likely to cause damage to property. 6. Learned counsel for complainant submitted that even if the argument advanced by petitioner's counsel is accepted, the definition of mischief under Section 425 IPC will be attracted as per Explanation (2). It is laid down that mischief may be committed by an act affecting property belonging to the person who commits the acts. 7. On a reading of the complaint, it is seen that specific allegation is made that the accused had the intention to cause wrongful loss to the complainant and that with that intention he had set fire to the grass which was heaped in the property. On a reading of the complaint as a whole, I do not think that this is a fit case in which the complaint has to be quashed holding that no offence is prima facie made out. 8. On hearing both sides and on going through the documents, I find that there is a dispute in respect of the ownership of the property. In a proceeding like this, this Court cannot go into the dispute relating to the ownership of the property and resolve the same. At this stage what is to be looked into is whether on the face of records, on the basis of the [Crl.M.C. 2556 of 2007] 4 allegations made in the complaint, whether any offence is made out or not. On doing so, I do not find that the court has committed any error in proceeding against petitioner. However, petitioner will be at liberty to raise the same contentions, if he is moving for a discharge in which event, the court concerned shall dispose of the matter, in accordance with law, untrammelled by any of the observations made in this order. Petition is dismissed. Sd/- K.HEMA, JUDGE. krs.