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2022 DIGILAW 51 (KER)

Biju K. Peter S/o K. P. Peter v. State of Kerala

2022-01-14

SOPHY THOMAS

body2022
ORDER : 1. Above Crl. R.P. has been filed by the accused persons (eight in number) in C.M.P. No. 174 of 2016 of JFCM, Kolenchery, under Section 401 of Cr.P.C. to set aside the impugned order of taking cognizance and issuing summons and to dismiss the same with costs. 2. The petitioners' case in short is as follows: They belong to Kunnathu family and they are age old and sick and they are well reputed persons in that locality. On 26.02.2016, the 2nd respondent filed a private complaint against the petitioners, alleging that on 02.12.2015 they trespassed into the cemetery of St. Peters and St. Pauls Church, Kolenchery, destroyed tombstones fixed in the tomb of his family members causing damages to the tune of Rs. 10,000/-. 3. The cemetery belongs to St. Peters and St. Pauls Church and more than 130 members of petitioners' family are members of that Parish. A specific area is there in the cemetery of the Church, where tombs of petitioners' family is situated. In fact the 2nd respondent damaged a portion of the petitioners' family tombs, for which they have filed O.S. No. 77 of 2015 before Munsiff Court, Kolenchery seeking a decree of permanent prohibitory injunction and such other reliefs. The Advocate Commissioner visited the suit property twice and filed reports. Only to bypass the situation and to defend the civil case, after a lapse of more than two months, 2nd respondent filed a private complaint against these petitioners, who are senior citizens retired from responsible posts and ailing from various illnesses. The case is purely civil in nature. There is nothing to prove the ingredients of Sections 427 and 379 of IPC as against these petitioners. The Church in question was closed for long and it is under the custody and surveillance of Police. So, the offence as alleged was not possible or probable. The 2nd respondent has no locus-standi to file this complaint. Since the petitioner are age old and sick, there is no possibility for them to travel long distance to reach the cemetery and to destroy the tombstones fixed in the tombs of respondent-family members. The learned Magistrate without considering the real state of affairs simply took cognizance against the petitioners under Sections 427 and 379 of IPC and hence it is liable to be set aside. 4. The 2nd petitioner in Crl. R.P. 1708 of 2018 filed Crl. The learned Magistrate without considering the real state of affairs simply took cognizance against the petitioners under Sections 427 and 379 of IPC and hence it is liable to be set aside. 4. The 2nd petitioner in Crl. R.P. 1708 of 2018 filed Crl. M.C. No. 7386 of 2018 under Section 482 of Cr.P.C. to quash the proceedings in C.M.P. No. 174 of 2016, invoking inherent power of this Court. Since the very same petitioner is the 2nd petitioner in Crl. R.P. 1708 of 2018, the Crl. M.C. need not be dealt with separately. 5. Heard learned counsel for the petitioners, 2nd respondent and also the learned Public Prosecutor. 6. In this Crl. R.P. this Court is asked to exercise its revisional powers under Section 401 of Cr.P.C. to set aside the order in C.M.P. No. 174 of 2016 of JFCM, Kolenchery. According to the petitioners, they are age old and sick, and retired from respectable posts, and there was no probability for them to reach the cemetery of St. Pauls and St. Peters Church, Kolenchery to remove the tombstones from the tombs of the family members of the 2nd respondent. According to them, on 07.12.2015, the 2nd respondent assaulted the 8th petitioner Sri. Roy Thomas and a criminal case was registered against him as Crime No. 140 of 2016. On 08.12.2016, the 2nd respondent destroyed the family tombs of the petitioners namely Kunnathu family. Since the dispute was civil in nature, they filed O.S. No. 77 of 2015 against the 2nd respondent and two others, for injunction and other consequential reliefs. The 2nd respondent alleging destruction of tombstones of his family members, filed O.S. No. 6 of 2016 against these petitioners and both suits were tried together and O.S. No. 77 of 2017 was decreed and O.S. No. 6 of 2016 was dismissed. In O.S. No. 77 of 2017, the Commissioner inspected the cemetery on 17.12.2015 with notice to the 2nd respondent, and filed report noting damages caused to the family tomb of the petitioners. C.M.P. No. 174 of 2016 was filed by the 2nd respondent alleging destruction and removal of tombstones from his family tomb, on 02.12.2015. If it was so, when the Commissioner inspected the property on 17.12.2015 after giving notice to him, he should have brought that fact to the notice of the Commissioner. C.M.P. No. 174 of 2016 was filed by the 2nd respondent alleging destruction and removal of tombstones from his family tomb, on 02.12.2015. If it was so, when the Commissioner inspected the property on 17.12.2015 after giving notice to him, he should have brought that fact to the notice of the Commissioner. But, nothing was reported by the Commissioner in the report dated 17.12.2015 regarding destruction or removal of tombstones from the family tomb of the 2nd respondent. Very same Commissioner inspected the property on 01.01.2016 on the request of the defendants. In that report the Commissioner has reported that two tombstones were seen removed and it was lying on the floor. 7. In the order of the learned Magistrate taking cognizance against these petitioners it is stated that no prima-facie evidence is there to attract the offences alleged under Sections 153, 295A, 297 and 120B, but there is prima-facie evidence to attract offences punishable under Sections 427 and 379 of IPC against the accused and so, cognizance was taken against them for those offences and summons was ordered. On going through the statement of witnesses recorded during Section 202 enquiry, CW-2 stated that on 02.12.2015, three persons entered the symmetry and destroyed the tombstones. CW-3 stated that the workers of Kunnathu family removed the tombstones. The 2nd respondent/complainant stated that the accused persons using pick-axe, iron bar etc. removed the tombstones, causing loss of Rs. 10,000/-. 8. The petitioners pointed out before Court that 4th petitioner and 5th petitioner were aged more than 80, 1st petitioner was 74 and petitioners 3 and 8 were senior citizens. They produced medical records to show that the 1st petitioner and 5th petitioner were Cardiac patients and 3rd petitioner was suffering from Benign Prostatic Hypertrophy, Bulbar Uretheral Stricture, Diabetes Mellitus, Astma etc. According to them, the petitioners were holding responsible posts and after retirement due to old age and ailments they were taking rest at their respective houses and by filing a false complaint, the 2nd respondent dragged them into court. 9. None of the witnesses including the complainant spoke about the presence of any of the petitioners in the scene of the occurrence, or about the over-facts if any committed by them. 9. None of the witnesses including the complainant spoke about the presence of any of the petitioners in the scene of the occurrence, or about the over-facts if any committed by them. According to them, since the petitioners filed Civil case against the second respondent and others for damaging the family tomb of Kunnathu family, after a lapse of about 2 months, second respondent filed a false complaint implicating respectable elders of Kunnathu family, without any factual basis. 10. Learned counsel for the petitioners contended that without realsing the materials and facts in its correct perspective, learned Magistrate took cognizance of the offence and issued summons against the petitioners. Relying on a decision of the Apex Court in M/s. Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others, 1998 KHC 1055, the petitioners would contend that “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint, to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof, and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima-facie committed by all or any of the accused .” 11. The learned counsel for the petitioners pointed out that the impugned order will not say who all committed the offences alleged, how they committed, or the manner in which they committed the offences. Even when the witnesses examined did not utter a word regarding the physical presence of these petitioners at the scene of crime, learned magistrate decided to proceed against them. Even when the witnesses examined did not utter a word regarding the physical presence of these petitioners at the scene of crime, learned magistrate decided to proceed against them. Obviously he did not apply his mind before taking cognizance and issuing summons against the petitioners. 12. The petitioners relied upon another decision of the Apex Court Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Others, 2015 KHC 2763 to say that the Magistrate is not expected to act as a post office in taking cognizance of each and every complaint filed before him, and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded, and the result of the enquiry or report of investigation under section 202 of Cr.P.C. if any the accused is answerable before the Criminal Court, and there is ground for proceeding against the accused under Section 204 of Cr.P.C. by issuing process for appearance. 13. The legal position is well-settled that, when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether the uncontroverted allegations as made, prima-facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice, to permit a prosecution to continue. This is so, on the basis that the Court cannot be utilised for any oblique purpose, and where, in the opinion of the Court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue. [See: Madhavrao Jiwajirao Scindia and Others vs. Sambhajirao Chandrojirao Angre and Others, AIR 1988 SC 709 and Sarala P.U. vs. Gopi and Another, 2019 (3) KHC 424 ]. 14. Learned counsel for the petitioners submitted that without establishing any prima-facie case against the petitioners, cognizance was taken and summons was issued against them. They were all age old and respectable members of Kunnathu family, leading retired life and ailing from various illnesses. Pending Crl. R.P. petitioners 1 and 4 died as submitted by them. 14. Learned counsel for the petitioners submitted that without establishing any prima-facie case against the petitioners, cognizance was taken and summons was issued against them. They were all age old and respectable members of Kunnathu family, leading retired life and ailing from various illnesses. Pending Crl. R.P. petitioners 1 and 4 died as submitted by them. So in the absence of prima-facie evidence to prove their involvement in an offence like 427 and 379 of IPC, the chances of a conviction is bleak and so no useful purpose will be served by allowing the criminal prosecution to continue against them. 15. Going by the complaint filed by the second respondent, the alleged incident occurred on 02.12.2015, he filed that complaint only on 26.02.2016. The delay of about 3 months is not at all explained by the second respondent. Moreover the petitioners had filed O.S. No. 77 of 2015 against the second respondent and others, for destroying the tomb of Kunnathu family, and a commission was also taken out, who examined the disputed cemetery on 17.12.2015. So only to escape from that Civil case, it seems, the second respondent filed a criminal complaint against senior members of Kunnathu family, much after the Civil case, as an after thought. 16. The petitioners produced copy of common judgment in O.S. No. 77 of 2015 and O.S. No. 6 of 2016, which will show that one Mr. Paul and Thampi Jonson filed O.S. No. 6 of 2016 against Kunnath Kudumbayogam and some of the petitioners herein. Crime No. 1494 of 2015 was registered against the second respondent herein for assaulting one Mr. George Thomas, Kunnathu house on 07.12.2015 in the steps leading to the cemetery. O.S. No. 77 of 2015 was filed by the petitioners on 16.12.2015. Much after the institution of the civil suit by the petitioners, the complaint was filed by the second respondent before the JFCM, Kolenchery. The fact that a civil suit was filed from the side of the 2nd respondent also, on the same set of facts alleged in the criminal compliant, is sufficient to hold that the dispute is essentially civil in nature. The allegation is that the petitioners committed mischief by destroying and removing the tombstones in the cemetery. The fact that a civil suit was filed from the side of the 2nd respondent also, on the same set of facts alleged in the criminal compliant, is sufficient to hold that the dispute is essentially civil in nature. The allegation is that the petitioners committed mischief by destroying and removing the tombstones in the cemetery. Admittedly the cemetery belongs to the Church, and either the petitioners or the respondent have no proprietary right over that land, except to perform the funeral rites and prayers. If any tortious act has been committed by either party, their remedy is to get compensation for the same, and both parties have exercised that right by filing civil cases against each other. The suit filed by the petitioners was decreed and the suit filed from the side of the respondent was dismissed. In order to ascertain the bona fides of the complainant the High Court can examine whether a matter which is essentially civil in nature has been given the cloak of a criminal offence. On going through the entire facts and materials available, the ingredients required to constitute a criminal offence is not made out against the petitioners. Even their presence at the scene of occurrence is not brought out through the enquiry conducted by the learned magistrate. So the continuation of the criminal proceedings against these petitioners will be nothing but an abuse of process of court. So, this Court is inclined to allow the revision petition, setting aside the impugned order of taking cognizance and issuing summons against these petitioners. 17. The second petitioner in Crl. R.P. No. 1708 of 2018 filed Crl. M.C. No. 7386 of 2018 to quash the proceedings in CMP No. 174 of 2016 of JFCM Kolenchery invoking the inherent powers of this Court under Section 482 of Cr.P.C. Since, he has joined the Crl. R.P. for setting aside the order in CMP No. 174 of 2016, invoking the revisional powers of this Court under Section 401 of Cr.P.C. no separate relief need be granted in the Crl. M.C. Since, taking cognizance and issuing summons under Section 204 of Cr.P.C. is not an interlocutory order, is amenable to the revisional jurisdiction of the High Court. R.P. for setting aside the order in CMP No. 174 of 2016, invoking the revisional powers of this Court under Section 401 of Cr.P.C. no separate relief need be granted in the Crl. M.C. Since, taking cognizance and issuing summons under Section 204 of Cr.P.C. is not an interlocutory order, is amenable to the revisional jurisdiction of the High Court. The respondents also do not have a case that the order in CMP No. 174 of 2016, taking cognizance and issuing summons against the petitioners is an interlocutory order to which the bar under Section 397 (2) of Cr.P.C. applies. In Rajendra Kumar Sitaram Pande and Others vs. Uttam and Another, 1999 (3) SCC 134, the Apex Court held that, order of the Magistrate taking cognizance and issuance of process is not an interlocutory order and therefore, it is amenable to revisional jurisdiction. Since, the petitioner in Crl. M.C. No. 7386 of 2018 has joined the Crl. R.P. No. 1708 of 2018 for setting aside the order in CMP No. 174 of 2016, the Crl. M.C. is closed, as no separate relief is to be granted in that petition. 18. Accordingly, Crl. M.C. No. 7386 of 2018 is closed and Crl. R.P. No. 1708 of 2018 is allowed, setting aside the impugned order in CMP No. 174 of 2016 on the file of JFCM, Kolenchery. The petitioners are set at liberty cancelling their bail bonds.