Kousalya Amma vs Narayankutty Nair

K. Ramakrishnan, J.—This Criminal Miscellaneous Case is filed by accused 1 to 7 in C.C. No. 913/2013 on the file of the Judicial First Class Magistrate Court-II, Palakkad to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'').

It is alleged in the petition that the first petitioner is residing in her own property purchased from one ''Vellachi'' as per Sale Deed No. 498/75 of Sub Registrar Office, Parali comprised in R. Sy. No. 238/5 of Parali-I village. She has been in possession and enjoyment of the same. She had constructed a house in the property and residing therein. Except the petitioners, nobody has got any right over the same. Petitioners 2 to 7 are the children of the first petitioner and the first respondent is having a property on the northern side of the petitioners'' property. There were civil suits between the first petitioner and the first respondent regarding dispute on the northern boundary of the petitioners'' property, which was demarcated in O.S. No. 612/2001 filed by the first respondent for mandatory injunction, partition and damages and O.S. No. 119/2002 was filed by the first petitioner seeking permanent prohibitory injunction. After considering the evidence on record, the Munsiff, Palakkad, by Annexure-A judgment decreed the suit filed by the first respondent in part and decreed the suit filed by the first petitioner and granted an injunction restraining the first respondent from trespassing into the petitioners'' property. In the suit, O.S. No. 612/2001, the main contention of the first respondent was that there are two mango trees on the northern boundary of his property and the branches of the said trees are overhanging to his property causing damage to the property and protruding into the property and they are absorbing water and fertilizers from his property and so he is entitled to half right over the mango trees. The Munsiff Court did not accept the contention of the first respondent as such, but granted a decree for mandatory injunction in his favour for removing the overhanging branches of the said mango trees, which was not objected by the first petitioner also. Thereafter, the first respondent filed E.P. No. 19/2006 in O.S. No. 612/2001 before the Munsiff Court, Palakkad for enforcing the mandatory injunction, but the same could not be implemented or executed on account of non co-operation of the first respondent and as per Annexure-B order, the execution petition was dismissed. Thereafter, the first respondent again filed another suit as O.S. No. 342/2012 before the Munsiff Court, Palakkad reiterating the same relief claimed by him and decided as per Annexure-A judgment and that is pending and Annexure-C is the copy of the plaint in O.S. No. 342/2012 filed by the first respondent. Since he could not succeed in his attempt, in order to harass the petitioners, the first respondent filed Annexure-D complaint as C.M.P. No. 1403/2010 before the Munsiff Court-II, Palakkad alleging offences under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code and the same was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code and on receipt of the same, Crime No. 165/2010 of Mankara police station was registered against the petitioners alleging offences under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code. The gist of the prosecution case in that crime was that the petitioners, on 17.8.2009, wrongfully restrained the first respondent and cut and removed a mango tree from his property worth Rs. 20,000/- and threatened him with deadly weapons, if he intended to prevent the petitioners from cutting the mango tree, he will be killed and thereby they have committed the above said offences. The police after conducting investigation, filed Annexure-E refer report stating that the allegations are false and no offence has been committed by the petitioners. Thereafter, the first respondent filed Annexure-F protest complaint as C.M.P. No. 4693/2010 before the Judicial First Class Magistrate Court-II, Palakkad and after enquiry, the learned Magistrate has taken cognizance of the case as C.C. No. 913/2013 under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code against the petitioners and issued summons to the petitioners to appear before the court. According to the petitioners, it was a false case and no offence under Section 379 of the Indian Penal Code can be attracted as the civil court has found that the mango tree belongs to the first petitioner and overhanging branches were directed to be cut and removed as per Annexure-A judgment in the suit, O.S. No. 612/2001, filed by the first respondent and his claim over the mango tree was rejected as well. So, the lower court should not have proceeded with the case and should have dismissed the complaint as it is a civil remedy. So, the petitioners have no other remedy except to approach this Court seeking the following relief::

For these and other grounds which may be urged at the time of hearing it is most humbly prayed that this Hon''ble Court may be pleased to allow this criminal miscellaneous case and quash Annexure-F, complaint and proceedings, pursuant thereto in C.C. No. 913/2013 of the Court of Judicial First Class Magistrate No. II, Palakkad as against the petitioners/accused Nos. 1 to 7, so as to secure the ends of justice.

Heard the learned counsel for the petitioners, the first respondent, who appeared in person, and the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the first respondent is now claiming right over the mango tree in respect of which, he filed O.S. No. 612/2001 before the Munsiff Court, Palakkad, which was disposed of by that court along with O.S. No. 119/2002 filed by the first petitioner against the first respondent holding that the first respondent has no right over the mango trees, but granted a decree for mandatory injunction in his favour directing the first petitioner to cut and remove the overhanging branches of the mango tree into the property of the first respondent and also granted a decree of permanent prohibitory injunction in favour of the first petitioner against the first respondent restraining him from trespassing into the property of the first petitioner and in the execution petition filed by him, though the petitioners were prepared to cut and remove the branches, on account of the non co-operation of the first respondent, the same could not be carried out and so the execution petition was dismissed. Further, police has conducted investigation on the basis of the private complaint filed by the first respondent and came to the conclusion that it was a false case and referred the same and it is thereafter that he filed a protest complaint and on the basis of which, cognizance was taken by the learned Magistrate and issued process to the petitioners alleging offences under Sections 379, 341 and 506(ii) of the Indian Penal Code. The learned counsel for the petitioners further submitted that the first respondent also filed another suit as O.S. No. 342/2012 claiming the same relief before the Munsiff Court, Palakkad and that is pending and before deciding the issue regarding the title of the mango trees, it cannot be said that the petitioners have committed the offence punishable under Section 379 of the Indian Penal Code. So, continuance of the civil prosecution is nothing but an abuse of process of court and the same is liable to be quashed.

On the other hand, the first respondent, who appeared in person, submitted that as per the Commissioner''s report in the earlier suit, it will be seen that the disputed mango tree is in the property of the first respondent and the petitioners by force entered into his property and cut and removed the mango tree after threatening him and wrongfully confined him in a room. Further, at this stage the court need only consider the allegations in the complaint and the genuineness of the allegation made in the complaint need not be considered at this stage. So, according to him, there is no illegality committed by the learned Magistrate and the petitioners are not entitled to any relief.

It is an admitted fact that the first respondent is having a property on the northern side of the property of the first petitioner and petitions 2 to 7 are her children. It is also in a way admitted by the first respondent that he filed O.S. No. 612/2001 before the Munsiff Court, Palakkad for mandatory injunction directing the first petitioner to cut and remove the overhanging branches of the mango tree standing on the boundary of the property and also claimed half right on the mango tree as major portion of the tree is protruding into the property of the first respondent. It is also an admitted fact that the first petitioner filed O.S. No. 119/2002 against the first respondent for permanent prohibitory injunction restraining him from trespassing into her property and both the suits were tried jointly and Annexure-A judgment was pronounced, in which it was found that the disputed mango tree is standing in the property of the first petitioner and the first respondent has no right over the same and the first respondent is entitled to get a mandatory injunction for cutting and removing the branches of the mango trees overhanging towards his property and decreed the suit to that extent alone and suit O.S. No. 119/2002 filed by the first petitioner against the first respondent was decreed by granting permanent prohibitory injunction restraining the first respondent or his men from trespassing into the property of the first petitioner. It appears that no appeal has been preferred against the same and that finding has become final. Further, it is also seen from Annexure-B that the first respondent filed E.P. No. 19/2006 in O.S. No. 612/2001 for executing mandatory injunction relief granted and since he did not co-operate with the court officer in cutting and removing the branches of the mango tree, which was ordered to be cut and removed as per Annexure-A judgment, the learned Munsiff dismissed the execution petition with cost to the first petitioner. It is also an admitted fact that now the first respondent filed Annexure-C suit as O.S. No. 342/2012 claiming the same relief claimed by him in O.S. No. 612/2001 which was disposed of as per Annexure-A judgment and that is pending before the Munsiff Court, Palakkad. It is also an admitted fact that the first respondent filed Annexure-D complaint as C.M.P. No. 1403/2010 before Judicial First Class Magistrate Court-II, Palakkad alleging that the petitioners have on 17.8.2009 criminally trespassed into his property and cut and removed the mango tree from his property worth Rs. 20,000/- after wrongfully restraining him in a room and threatened him with dare consequences of killing, if he interfered with the same and thereby they have committed the offence punishable under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code and it was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code and on receipt of the same, Crime No. 165/2010 of Mankara police station was registered against the petitioners alleging offences under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code and after investigation, Annexure-E refer report was filed stating that the allegations are false. It is also an admitted fact that thereafter the first respondent filed Annexure-F protest complaint as C.M.P. No. 4693/2010 and after taking Annexure-G sworn statement from the first respondent, the learned Magistrate took cognizance of the case as C.C. No. 913/2013 under Sections 341, 379 and 506(ii) read with Section 34 of the Indian Penal Code against the petitioners and issued process to them and that is being challenged by the petitioners by filing this petition.

According to the learned counsel for the petitioners, since the dispute regarding right over the mango tree has been finally settled by the civil court, even if the allegation is accepted, there is no question of theft arises and as such, the court below should not have taken cognizance for the offence under Section 379 of the Indian Penal Code. Further, the investigating officer, after conducting investigation, came to the conclusion that it was a false case. So, under the circumstances, the lower court without application of mind wrongly appreciated the evidence adduced on the side of the complainant and took cognizance of the case, which is, in fact, a fabricated case foisted by the complainant to harass the petitioners and conviction in such cases will be remote and proceeding with the case will only amount to an abuse of process of court.

It is settled law that when the Magistrate is considering the evidence for the purpose of taking cognizance, the Magistrate is expected to analyse the evidence adduced before him and the allegations in the complaint so as to prima facie make an opinion as to whether process has to be issued to the accused at the time when he is taking cognizance of the case after conducting enquiry under Section 202 of the Code to proceed under Section 204 of the Code. At that stage, the Magistrate is not expected to analyse the possible defence of the accused and the non possibility of ultimate conviction on the basis of evidence. But in some cases, if any undisputed documents were produced by the accused before this Court so as to convince the court that there is no possibility of any offence being attracted on the basis of the admitted documents, in exceptional cases, the court can invoke the power under Section 482 of the Code and quash the proceedings at the initial stage itself. Otherwise, normally if the court feels that it is a matter to be decided on the basis of evidence, then it should not invoke the power under Section 482 of the Code but delegate that power to the court below for deciding the issue on the basis of evidence. [See Harmanpreet Singh Ahluwalia and Others Vs. State of Punjab and Others, , V.Y. Jose and Another Vs. State of Gujarat and Another, , State of Haryana and others Vs. Ch. Bhajan Lal and others, , Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, and Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, . With these principles in mind, the case in hand has to be considered.

It will be seen from Annexure-A judgment produced by the petitioners in which the two civil suits, one filed by the first respondent and the other filed by the first petitioner in respect of the same disputed mango tree was decided, and it was found in that judgment that the disputed mango tree belongs to the first petitioner herein and the first respondent has no right over the same and granted a decree of permanent prohibitory injunction restraining the first respondent from trespassing into the property of the first petitioner and interfering with her possession. In the same judgment, the civil court has found that the branches of the mango tree belongs to the first petitioner and situated in her property are overhanging into the property of the first respondent by making aerial trespass and granted a decree of mandatory injunction directing the first petitioner to cut and remove the same and no appeal has been preferred against the same and it has become final. The factum of disposal of the suits mentioned in Annexure-A was admitted by the first respondent, who appeared in person. It is also in a way admitted that Annexure-C, another suit, O.S. No. 342/2012 was filed by the first respondent in respect of the same mango tree and in respect of the same property claiming damages for the trees cut and removed. It is also in a way admitted that by Annexure-B order, the Munsiff had dismissed E.P. No. 19/2006 in O.S. No. 612/2001 on the file of the Principal Munsiff Court, Palakkad filed by the first respondent for executing mandatory injunction decree granted in his favour in O.S. No. 612/2001 of Munsiff Court, Palakkad which was dismissed for non co-operation of the first respondent, who is the decree holder/petitioner in that execution petition. So it was under that circumstance that the first petitioner had to cut and remove the mango tree from the property. Since the ownership of the mango tree has already been decided in the earlier suit and liability to pay compensation in respect of that tree is again raised by the first respondent before the Munsiff Court, it cannot be said that the offence of theft has been committed by the petitioners so as to convict them for the offence under Section 379 of the Indian Penal Code even if the case is allowed to proceed against them. So, under the circumstances, there is some force in the submission made by the counsel for the petitioners that offence under Section 379 of the Code is not attracted and proceeding with the case in respect of that offence is nothing but an abuse of process of court. So under the circumstances, though on the basis of the evidence it cannot be said that the Magistrate was wrong in taking cognizance of the case, in view of the principles discussed above, at the time of conducting enquiry under Section 202 of the Code and issuing process under Section 204 of the Code, considering the admitted facts and documents produced, this Court feels that it is a fit case where the power under Section 482 of the Code has to be invoked to quash the proceedings in respect of the offence under Section 379 of the Indian Penal Code as proceeding with that offence will amount to an abuse of process of court.

As regards the other offences are concerned, it is a matter for evidence. The question as to whether the petitioners have wrongfully restrained the first respondent and threatened him so as to attract the offence under Sections 341 and 506(ii) of the Indian Penal Code are matter for evidence and for that purpose, the evidence of the complainant alone will be sufficient to take cognizance of the case and the Magistrate has not committed any illegality to that extent, but it is sufficient for conviction or not is a matter for evidence to be considered later by the Magistrate while deciding the case finally. So, under the circumstances, the petitioners are not entitled to get the relief of quashing the proceedings as such as claimed by them in the petition, but the petitioners are entitled to get a partial relief of quashing of the proceedings in respect of the offence under Section 379 of the Indian Penal Code alone.

So, this petition is allowed in part. Further proceedings as against the petitioners in respect of the offence under Section 379 read with Section 34 of the Indian Penal Code alone is quashed and the lower court is at liberty to proceed with the case in respect of other offences and dispose of the case in accordance with law. Any observation made by this Court regarding the same is made only for the purpose of considering the entitlement of the petitioners to get quashing of the complaint and not on merits of the case. The Magistrate is directed to consider and dispose of the question regarding commission of offence under Sections 341 and 506(ii) read with Section 34 of the Indian Penal Code on the basis of the evidence to be adduced by the complainant later in the proceedings and dispose of the same in accordance with law.

With the above observations and directions this petition is allowed in part.

Office is directed to communicate this order to the concerned court immediately.