John Chandy vs State of Kerala

A. Hariprasad, J.—Petitions filed under Section 482 of the Code of Criminal Procedure.

Crl. M.C. No. 3069 of 2012 is taken as the leading case. Parties are hereinafter referred to as the petitioners and respondents.

Allegations common in all the cases are as follows:

The petitioners/accused are having property on the eastern side of a road, which is said to be a road vested with a Municipality. On the western side of the said road, the property belonging to the additional 3rd respondent/defacto complainant is situated. It is alleged against the petitioners that on 30.09.2011, 25.10.2011 and 28.10.2011 they trespassed into the property of the additional 3rd respondent, abused him in obscene words, demolished the compound wall and also criminally intimidated him. Therefore, cases have been registered as Crime Nos. 896 of 2011, 887 of 2011 and 797 of 2011 by the Kottayam East Police. The offences alleged against the petitioners in the leading case are punishable under Sections 447, 294(b), 506(ii) and 427 read with Section 34 of the Indian Penal Code (in short, "IPC"). In Crl. M.C. Nos. 2699 of 2012 and 3088 of 2012, all the offences, except the one under Section 506(ii) IPC, are alleged.

Heard the learned counsel for the petitioners and the learned counsel for the additional 3rd respondent/defacto complainant. Learned Public Prosecutor is also heard.

Learned counsel for the petitioners submitted that this is essentially a civil dispute between the parties. So much so, the prosecution is an abuse of the process of the court. To buttress this argument, my attention is drawn to Annexure-2 scene mahazar prepared by the Police and Annexure-8 Commissioner''s report in O.S. No. 506 of 2011, which was pending before the Munsiff''s Court, Kottayam at the material time. Admittedly the case was later withdrawn by the petitioners/accused.

Per contra, learned counsel for the additional 3rd respondent/defacto complainant submitted that in the application to withdraw the suit filed by the petitioners, they have categorically stated that the pathway lying in between the properties of the disputants is not a public pathway. However, in this proceedings, this Court is not supposed to determine the nature of the pathway. Order 23 Rule 1 of the Code of Civil Procedure permits withdrawal of a suit. It has been mentioned that the accused persons wanted to file a suit after rectifying the defect. The fact remains that at present there is no suit pending between the parties.

Learned counsel for the petitioners submitted that the illegal construction made by the additional 3rd respondent/defacto complainant was brought to the notice of the Municipality and thereafter, it gained the attention of the learned Ombudsman for Local Self Government. As directed by the learned Ombudsman, the Municipality passed an order (Annexure-R3(B)). My attention is further drawn to Annexure-R3(B) submitted by the learned counsel for the defacto complainant whereby it is mentioned that the Municipality has decided to conduct a detailed survey of the properties and the pathway so as to ascertain the nature of the disputed properties. Further, the Municipality decided not to demolish the construction made by the defacto complainant pending decision of the matter. This order was passed by the Municipality as directed by the learned Ombudsman as per Annexure-R3(A) order. Fact of the matter is that the dispute is pertaining to the nature of the pathway and whether the compound wall is attempted to be constructed encroaching upon the pathway. Issues raised by the parties appear to be having some civil colour. But, at the same time there are allegations of other offences like the ones under Sections 506(ii) and 294(b) IPC. Considering the totality of the allegations, I am of the opinion that the jurisdiction of this Court under Section 482 Cr. P.C. cannot be invoked to quash the final reports. But it is made clear that the petitioners are free to move for appropriate reliefs before the trial court. I notice that the matter involved in Crl. M.C. No. 3069 of 2012 (C.C. No. 737 of 2011 on the file of the Judicial First Class Magistrate Court-I, Kottayam) pertains to offences triable as a warrant trial. If the parties make request, the trial court can consider clubbing of these offences by invoking Section 219 Cr. P.C. Petitioners are at liberty to claim discharge before the court below; if the law permits to do so.

With these observations, all the petitions are disposed.

All pending interlocutory applications will stand dismissed.