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1996 DIGILAW 525 (KER)

Vinayachandran v. State of Kerala

1996-12-09

N.DHINAKAR

body1996
Judgment :- Dhinakar, J. Petitioners are the accused in C.C. Nos. 55/94 and 312/94 both pending on the file of the Judicial First Class Magistrate-I, Kanjirappally which came to be instituted by way of a report under S.173 Cr.P.C. by the Police, charging the petitioners in both CCs. for offences under Ss.448 and 427 read with S.34 IPC. 2. Cr. M.C. No. 1264/95 is filed to quash the proceedings in CC No. 55/94 and Crl. MC No. 2226/95 is filed to quash the proceedings in C.C. No. 312/94. 3. Allegation against the petitioners in CC No. 55/94 is that they, on 15.8.1993, sharing their common intention to trespass into the property mentioned in the charge, committed mischief and thereby committed offences punishable under Ss.448 and 427 read with S.34 IPC. Similarly the allegations against the petitioners in CC No. 312/94 is that they, in furtherance of their common intention trespassed into the very same property on 27.4.1994 and thereby committed offences punishable under Ss.448 and 427 read with S.34 IPC. 4. Counsel for the petitioners submits that the intention of the proceedings against the petitioners is nothing but an abuse of the process of court as it is clear from the documents which the petitioners have produced along with the Crl. MCs. that the petitioners were in possession of the property in question on the dates on which they are alleged to have committed trespass and mischief ie.,15.8.1993 and 27.4.1994 and no offence of trespass or mischief in the property is made out. In support of this plea, counsel for the petitioners relies upon the annexures filed along with Crl MC. No. 22267 95. I have perused the same and heard the Public Prosecutor. 5. Annexure I is the plaint in O.S. No. 106/93 filed by the wife of the first petitioner against the first informant and others in C.C. No. 55/94. The contention of the wife of the first petitioner (Plaintiff) is that she was in possession of the plaint schedule property comprised in survey number mentioned in the schedule on the strength of a sale agreement executed by the first defendant in the suit as the power of attorney holder of the 2nd defendant in the said suit. The contention of the wife of the first petitioner (Plaintiff) is that she was in possession of the plaint schedule property comprised in survey number mentioned in the schedule on the strength of a sale agreement executed by the first defendant in the suit as the power of attorney holder of the 2nd defendant in the said suit. The further contention in the said suit was that the possession of the plaint schedule property was transferred in her favour on 25.12.1991 on which date the agreement of sale was executed. Annexure II shows that an order of injunction was passed by the learned Munsiff on 4.2.1993 restraining the defendants in O.S. No. 106/93, which means, that the order of injunction was against the informant in C.C. No. 55/94. As the informant in CC No. 55/94 was interfering with the possession and enjoyment, first petitioner's wife filed an original petition before this Court in O.P. No. 3322/93 seeking police protection and this court by Annexure IV order dated 22.3.1993 disposed of the same after recording the statement of the informant in C.C. No. 55/94, who was shown as the 3rd respondent in the said original petition. Third respondent therein, the informant in CC No. 55/94, stated before this Court that he is not obstructing or otherwise interfering with the possession and enjoyment of the property and the statement was recorded by the learned judge. The learned judge further observed that in spite of what is stated by the 3rd respondent/ informant in CC No. 55/94, he creates problems to the petitioner, 2nd respondent mentioned in the O.P. will give effective protection and assistance as would be necessary. The order of injunction granted vide annexure A2 was later modified as seen by Annexure III which shows that the wife of the first petitioner was in possession of the property on 7.4.93. Learned Munsiff has stated in her order while modifying the order of injunction that the wife of the first petitioner/ plaintiff will not tap the rubber trees till the court reopens after the mid-summer vacation and that the injunction order granted earlier vide Annexure II, in other respects, will remain the same. 6. While the matters stood thus, the informant in CC No. 55/94, namely the 5th defendant in the original suit filed a complaint before the first respondent in Crl. 6. While the matters stood thus, the informant in CC No. 55/94, namely the 5th defendant in the original suit filed a complaint before the first respondent in Crl. M.C. No. 1264/95 alleging that the petitioners and others entered into the property and" committed mischief thereby committed offences punishable under Ss.448 and 427 read with 34 of the IPC. Later on 28.4.1994, another complaint came to be laid against the petitioners on an allegation that on 27.4.1994 at about 5.30 pm, they trespassed into the property and committed mischief which was also registered as a crime. 7. Counsel for the petitioners submits that the orders filed as Annexures would show, that on the date on which the injunction order was passed ie., 4.2.1993, as well as Annexure III dated 7.4.93 which is further confirmed by the orders passed in Annexure A5 (in Crl. M.C. No. 2226/95) dated 26.4.1994 the petitioners were in possession of the property concerned in the two Crime numbers. Itis also to be seen that this court while passing the order on 26.4.1994 by Annexure A5 stated that the petitioner will not be dispossessed from the plaint schedule properties for a period of two weeks from 26.4.94. Annexure A2, A3 as well as A5 indicates that on the respective dates of the alleged occurrence namely 15.8.1993 and 27.4.1994 petitioners were in possession of the property. If the petitioners are found to be in possession of the property in question as could be seen from Annexures A2, A3 and A5, no offences under Ss.448 and 427 will arise and I feel that the proceedings initiated against the petitioners have to be quashed. At this time, it is useful to refer to the judgment of the Supreme Court in Kamval Sood v. Nawal Kishore (AIR 1983 SC 159) wherein the learned judges of the Supreme Court took the view that the intention to commit offence is an essential ingredient to attract the penal provisions of S.448 and mere occupation even if illegal cannot amount to criminal trespass. Similarly, a learned judge of the Madras High Court in M. Ramaswamy v. Lakshmi Raman and Ors. (1987 MLJ (Crl.) 324) took the view that an offence under S.448 IPC is not an offence against ownership or title but it is an offence against possession and occupation. Considerations like exclusive title to the property, claims, counter claims are alien to S.448 IPC. (1987 MLJ (Crl.) 324) took the view that an offence under S.448 IPC is not an offence against ownership or title but it is an offence against possession and occupation. Considerations like exclusive title to the property, claims, counter claims are alien to S.448 IPC. 8. In view of the facts narrated above and in view of the law laid down in the above decision, the proceedings initiated against the petitioners in CC No. 55/94 as well as in CC No. 312/94 have to be quashed and accordingly they are quashed. The petitioners can settle their disputes in the civil court as it is clear that the petitioners have at least a colour of bonafide claim of right over the property, which is the subject matter of CC Nos. 55/94 and 312/94. Cr. MCs. are allowed and the proceedings against the petitioners in the above two C.C s are quashed.