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2010 DIGILAW 194 (KER)

Sister Ludhiya v. State of Kerala

2010-03-04

K.HEMA

body2010
ORDER : Petition filed by the petitioner to quash annexure-II charge sheet laid against them under sections 143, 147, 148, 149, 188, 427 IPC. 2. According to the allegations in the charge sheet, petitioners in prosecution of the common object formed into an unlawful assembly and committed mischief by destroying the compound wall and the barbed wire fencing situated north to south on the eastern side of the property of CW1. The common object of the assembly was to violate the injunction order of the Munsiff Court in I.A.2166/05 and to commit mischief in violation of the injunction order. The offence was committed on 17.2.2007 at 11 am. A loss of Rs.35,000/- was caused to CW1. 3. Learned counsel for the petitioner, argued that the court can take cognizance under section 188 IPC only on the basis of a complainant filed by a public servant in view of Sec. 195 Cr.P.C. Citing two decisions of this court, it is also argued that violation of injunction order is not a offence u/s.188 IPC. In this case, cognizance is not taken on the basis of complaint made by a public servant. Govindan Kunjuraman Asari Vs. Krishnan Nair Chellappan Nair 1952 KLT 547 and Joseph George Vs. State of Kerala 2000 (2) KLJ 408 were cited in support of the argument. It is also submitted that to get over the bar under section 195, if an offence u/s 188 IPC is added the proceedings can be quashed under section 482 Cr.P.C. , in the light of the decision of the Supreme court in Basir-UL-Huq Vs. State of West Bengal AIR 1953 SC 293 . 4. The learned counsel for the petitioner submitted that the disputed property does not belong to CW1, the second respondent/defacto complainant. In fact second respondent was trying to reduce the width of the stream by constructing a compound wall. The Revenue authorities initiated action against defacto complainant and he was directed to remove the obstruction. A fine was also imposed on him. Therefore, defacto complainant cannot claim any right over the property. 5. It is also pointed out that defacto complainant filed a writ petition before this court and Deputy Thahsildar filed a counter affidavit which is annexure -- A7. It is clearly stated therein that defacto complainant had encroached upon some puramboke etc. A fine was also imposed on him. Therefore, defacto complainant cannot claim any right over the property. 5. It is also pointed out that defacto complainant filed a writ petition before this court and Deputy Thahsildar filed a counter affidavit which is annexure -- A7. It is clearly stated therein that defacto complainant had encroached upon some puramboke etc. He also stated that on inspection, it was found that the 8th and 9th respondents encroached and annexed some portion of the puramboke 'thodu' in question to their respective properties by putting up compound wall and barbed wire fencing. It is also stated in the counter affidavit of the Deputy Thahsildar that as per the final order passed on 27.1.2007 defacto complainant was directed to vacate the encroached land and a fine was imposed against him for illegal act. Notice was also served on defacto complainant. The Village Officer was directed to implement the order to evict the encroachment and to take possession of the puramboke land. 6. Learned counsel for the respondent argued that even if section 188 IPC will not lie, the other offences like section u/s.427 will be attracted as per the allegations in the charge sheet. Petitioner committed mischief as per Sec.425 IPC, it is submitted. It was also argued that even if the arguments advanced on behalf of the petitioner are all accepted, the disputed property does not belong to him and hence, petitioners have committed offence u/s.425, in view of Explanation (1) of Sec.425 IPC. 7. On hearing both sides and going through the charge sheet and other documents produced, I find that petitioners are proceeded against on the basis of annexure -A 2 charge sheet on the allegation that they committed the offending acts in violation of injunction order passed by the Munsiff Court. The said injunction order is annexure-III. As per the said order, petitioners 1 and 2 are prohibited from committing any mischief in the petition scheduled property item No.l etc. The act, thus, prohibited by injunction order is mischief in the property, which is alleged to be owned and possessed by defacto complainant. As per the charge, the petitioners have committed mischief, in violation of injunction order (annexure-III). Primarily, the offence is allegedly committed in violation of an order passed by the Civil Court. The act prohibited is commission of mischief which will constitute an offence under section 425. 8. As per the charge, the petitioners have committed mischief, in violation of injunction order (annexure-III). Primarily, the offence is allegedly committed in violation of an order passed by the Civil Court. The act prohibited is commission of mischief which will constitute an offence under section 425. 8. It is well settled that offence u/s.188 IPC. will not be attracted, if order of violation is that of Civil Court. Sec. 188 IPC does not contemplate an order passed by Civil Court or Revenue Court. The breach of such order get adequately dealt with under the provisions of Code of Civil Procedure, but it cannot be said that orders passed by Civil court are "promulgated" as stated in Sec. 188 IPC, disobedience of which, would result in annoyance etc. to any person. On this ground itself, petitioners cannot be proceeded against, since the allegations are that petitioners have allegedly acted in violation of injunction order passed by the Civil Court and thereby committed mischief which allegedly belongs to the defacto complainant. 9. On a reading of the allegations in the charge sheet and the F.I statement, it will clear that defacto complainant is aggrieved by the acts of petitioners since they were acting in violation of the injunction order passed by the Civil Court. Defacto complainant is aggrieved because of the disobedience of the order passed by the Civil Court. It also appears that disobedience of the Civil court's order has caused annoyance or injury or risk of obstruction to defacto complainant and his property and there by the act allegedly committed by the petitioners fall u/s.188 IPC. 10. However, offences u/s.143, 147, 149 and 427 IPC are added since, according to the officer who laid the charge, petitioners also committed the offence which independently fall under the Indian Penal Code. Going by the allegations in the charge sheet, FIR etc., it is evident that petitioners are being sought to be prosecuted for offence u/s.188 of IPC, for the alleged acts committed by them which would constitute offence U/s.427, 143 to 148 IPC which are prohibited by the injunction order passed by Civil Court. As per the dictum laid down in the decision reported in 2000(3) KLT 275 , the acts committed in breach of violation of injunction order can be adequately dealt with under the CPC etc. As per the dictum laid down in the decision reported in 2000(3) KLT 275 , the acts committed in breach of violation of injunction order can be adequately dealt with under the CPC etc. and hence, I find that the criminal proceedings initiated against petitioners have to quashed in the light of the dictum laid down in the said decision. 11. Now I shall deal with section 425 I.P.C. and Explanation (1) thereto. The definite case of the defacto complainant in this case is that petitioners have acted with intention to cause wrongful loss to defacto complainant and a loss of Rs.35,000/- was caused to defacto complainant. He has no case that petitioners had intended to cause wrongful loss or damage to any other person or he had the requisite knowledge that his act will cause wrongful loss or damage to any other person. The Government has no grievance that their property is damaged or destroyed by petitioners. The defacto complainant has also no case that it is the Government property which was destroyed by petitioners. It is also relevant to note as per annexure-II, counter affidavit filed by the Deputy Thahsildar it was defacto complainant who encroached up on the stream and he was directed to remove the obstruction and a fine was also imposed on the defacto complainant. 12. Therefore grievance of the Government is not against petitioners but it is against defacto complainant in causing obstruction and encroaching upon Government property. In such circumstances, Explanation (1) to section 425 IPC will not be attracted in this case, even on a plain reading of the provision. Looking at the facts and circumstances from any angle, I am satisfied it will amount to abuse of process of court if the proceedings against petitioners are allowed to continue. No injury is caused to any person in the incident. There is also no allegation that any person was criminally intimidated and abused in the course of incident. Taking all these facts into consideration I find the charge sheet is to be quashed. It is made clear that observations made in this order are made only for purpose of deciding whether any offence is made out in this case. The Civil Court will deal with the controversy untramalled by any of the observations made in this order. 13. Taking all these facts into consideration I find the charge sheet is to be quashed. It is made clear that observations made in this order are made only for purpose of deciding whether any offence is made out in this case. The Civil Court will deal with the controversy untramalled by any of the observations made in this order. 13. In the result, annexure-II charge sheet is hereby quashed and all further proceedings initiated on the basis of annexure-II against petitioners shall be dropped.