-------------- This is an application filed by the petitioners who are the accused in CC.No.81 of 2011 on the file of the Judicial First Class Magistrate Court, Idukki to quash the proceedings as against them under Section 482 Code of Criminal procedure.
2. It is alleged in the petition that they were arrayed as accused Nos.3 and 4 in CC.No.81 of 2011 on the file of judicial First Class Magistrate Court, Idukki. The case was originally filed by the second respondent by filing a private complaint before the Judicial First Class Magistrate Court, Idukki which was sent for investigation and crime was registered as crime No.297 of 2008 of Idukki police station and alleging offences under Sections 120B, 447, 427, 379, and r/w Section 34 of the Indian penal Code. During the course of investigation the present third accused was deleted from the party array and thereafter they have referred the case as civil dispute. Against the same the second respondent filed Annexure-A1 protest complaint against five accused persons including the present petitioners and three identifiable persons and after enquiry, the learned Magistrate has taken cognizance of the case as CC.No.81 of 2011. Accused Nos.1 and 2 filed Criminal M.C.No.2450 of 2011 before this Court for quashing the proceedings and this Court by Annnexure-A5 order quashed the proceedings as against accused Nos. 1 and 2. Now the petitioners have come before this Court to quash the proceedings and seeking the following releif:-
to allow this Crl.M.C. quashing Annexure 1 complaint now pending as CC.No.81/2011 on the files of the Judicial First Class Magistrate's Court, Idukki.
3. Heard the counsel for the petitioners and counsel appearing for the second respondent and the learned Public Prosecutor.
4. The counsel for the petitioner submitted that in fact there is a civil suit pending in respect of the same property and that has ended in favour of the accused Nos.1 and 2 and against the present defacto complainant as per Annexure-A2 judgment. When there is a civil dispute regarding the property, none of the offences alleged could be said to have been committed by the accused persons as the right in respect of the property itself has to be decided by the civil Court. First accused who is the husband of the first petitioner herein along with herself filed the suit against persons who attempted trespass and the present defacto complainant also filed another suit and both suits were tried together and suit filed by the first petitioner and her husband was decreed and the suit filed by the second respondent was dismissed. So according to the counsel for the petitioners, no offence has been made out. Further since this Court has already quashed the proceedings in respect of accused Nos.1 and 2, there is nothing to survive against the present petitioners also as the allegations are common as far as all the accused are concerned. So he prayed for allowing the petition.
5. On the other hand, the counsel for the second respondent submitted that the property belongs to his brother- in-law and as entrusted by him, he was managing the property. While so the petitioners and other accused persons criminally trespassed and committed theft and also mischief in the property. So he filed the complaint. Annexure-A2 common judgment was set aside by this Court and it was remanded to the Court below for fresh disposal and the cases are pending before the trial Court. So under the circumstances, this cannot be now said that the petitioners have succeeded in their attempt and other matters are to be decided on the basis of evidence.
6. It is an admitted fact that the second respondent is not the owner of the property in respect of which the dispute is made. According to him, he has been entrusted with the property by the owner of the property who is none other than co-brother of the second respondent. But the petitioners as well as other accused persons claimed that on the basis of an agreement, this property was entrusted to them and they were in possession of the property and there is no question of trespass or committing mischief in respect of the property which is being possessed by them arises. It is also an admitted fact that the present second respondent filed a complaint and crime was registered as crime No.297 of 2008 of Idukki police station on receipt of the private complaint which was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code of Criminal procedure and it is also an admitted fact that after conducting investigation refer report was filed by the investigating officer stating that it is a civil dispute. It is also an admitted fact that the first petitioner herein and also her husband Joseph filed O.S.No.117 of 2008 against the owner of the property Sri.Kunjumon and his father and brother for injunction restraining them from trespassing into the property and present second respondent also filed a suit as O.S.No.147 of 2009 against accused Nos.1 to 3 the criminal case for same relief and both suits were tried jointly and as per Annexure-A2 common judgment, the suit filed by the present first petitioner and her husband who was arrayed as first accused in the case was decreed and the suit filed by the second respondent was dismissed. According to the counsel for the second respondent appeals have been preferred against them and that was set aside and remanded to the Court below.
7. However, it is seen from the documents produced that accused Nos.1 and 2 are the husband and son of the first petitioner herein who is arrayed as third accused in the complaint have filed Crl.M.C.No.2450 of 2011 before this Court for quashing the complaint in this case as against them and after hearing both sides, this Court, by Annexure-A5 judgment, came to the conclusion that on the basis of the allegations in the complaint and also as the things stood, its cannot be said that there is a prima facie case made out for proceeding with the complaint and it is a civil dispute that their rights ill have to be decided by the competent civil Court and quashed the proceedings as against them. Since this Court has already considered all the aspects and come to the conclusion that case against accused Nos.1 and 2 is liable to be quashed, the same principle will apply to the present petitioners also as the allegations against all the accused was that none of the accused persons have right in the property and they trespassed into the property belonging to the co-brother of the present second respondent and thereby they have committed the above said offences. When the case against some of the accused persons has already been quashed by this Court on the finding that there is no prima facie case made out to attract a criminal offence and it is only in the nature of the civil dispute, then the proceedings against the present petitioners also follow the same result and thereby they are entitled to get the relief of quashing the proceedings as against them as well.
So the petition is allowed and further proceedings in CC.No.81 of 2011 on the file of the Judicial First Class Magistrate Court, Idukki as against the petitioners who are accused Nos.3 and 4 in the case is also quashed.
Office is directed to communicate this order to the concerned Court immediately for necessary further action in this regard.
K.RAMAKRISHNAN, JUDGE R.AV