Kerala High Court
John Jacob vs State Of Kerala Rep. By Pp on 7 November, 2024
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Crl.M.C.No.5446 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 5446 OF 2023
CRIME NO.997/2021 OF Erumeli Police Station, Kottayam
AGAINST THE ORDER IN CC NO.55 OF 2023 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,ERATTUPETTA
PETITIONER/ACCUSED:
JOHN JACOB
S/O.JACOB, AGED 55 YEARS
PEEDIKAPARAMBIL HOUSE, PAMPAVALLEY NORTH PO,
MUKKOOTTUTHARA, PANAPILAVU, ERUMELI SOUTH VILLAGE,
KOTTAYAM DISTRICT, KERALA, PIN - 686510
BY SRI.JOHN JACOB(Party-In-Person)
RESPONDENTS/STATE/DE FACTO COMPLAINANT:
1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 NISHA BIJU PALACKAL
W/O.BIJU PALACKAL, AGED AROUND 45 YEARS
PALACKAL HOUSE, PAMPAVALLEY NORTH PO,
MUKKOOTTUTHARA, ERUMELI SOUTH VILLAGE,
KOTTAYAM DISTRICT, KERALA, PIN - 686510
3 BIJU PALACKAL
S/O.MADHU, AGED AROUND 50 YEARS
PALACKAL HOUSE, PAMPAVALLEY NORTH PO,
MUKKOOTTUTHARA, ERUMELI SOUTH VILLAGE,
KOTTAYAM DISTRICT, KERALA, PIN - 686510
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Crl.M.C.No.5446 of 2023
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BY ADVS.SHEEBA THOMAS, PUBLIC PROSECUTOR
MANUEL KACHIRAMATTAM
MERRY GEORGE(K/732/2006)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07.11.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Crl.M.C.No.5446 of 2023
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C.S.SUDHA, J.
---------------------------------------------
Crl.M.C.No.5446 of 2023
---------------------------------------------
Dated this the 7th day of November 2024
ORDER
This Crl.M.C. under Section 482 Cr.P.C. has been filed by
the sole accused in C.C.No.55/2023 on the file of the Judicial First
Class Magistrate, Erattupetta, for quashing Annexure A1 FIR;
Annexure A2 Final report and all further proceedings in the said
case. The second respondent herein, is the informant/aggrieved in
the said crime and the third husband, her husband.
2. According to the petitioner, two plots of land in
block no.28, Resurvey no.425/2 and 322/1, 2 & 7 of Erumeli South
Village belong to his parents. His father passed away in the year
2018 leaving the petitioner responsible for the care of his aged
mother, who has executed a power of attorney in his favour to
manage his properties. There are disputes with the petitioner's
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cousin as well as his elder brother Oommen Jacob relating to the
property of his parents and in the said dispute, the cousins and
brother are supported by the local residents. In the dispute with his
elder brother, the Erumeli police had taken a biased stand in favour
of his brother and his men. In the complaint given against the
unlawful acts of his brother and his men, the police without proper
investigation filed a closure report. It is in this background the
dispute with the respondents started. On 06/07/2020, the petitioner
found that the respondents were cutting down a large mahogany
tree standing in the boundary of the petitioner's property. The
petitioner immediately videographed the theft of the tree and
informed the police on the same day. However, the police
dismissed the theft of the tree as a civil dispute. In order to resolve
the boundary dispute existing between the petitioner and the
respondents, he applied for demarcation of the boundaries before
the authority concerned. Since 06/07/2020, the petitioner and his
mother have been facing problems like trespass into their property,
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nuisance and theft like cutting of trees standing in the property.
There has been a total lack of support from the authorities due to
the biased approach taken by the police in favour of the locals
including the respondents. On 13/07/2021 the petitioner
videographed a dispute with the respondents. Though several
complaints had been filed against the respondents and their
supporters, the authorities concerned are not taking any steps to
redress the same. In the light of the boundary dispute, the
petitioner and his mother filed O.S.No.26/2022 before the Munsiff
Court, Kanjirappally for declaration of title and fixation of
boundaries.
2.1. Annexure A1 FIR, that is, crime no.997/2021,
Erumeli police station, was registered on the basis of the FIS given
by the second respondent herein. As per the FIS, the incident is
alleged to have taken place on 03/07/2021. The allegation is that
the petitioner with the intention of outraging the modesty of the
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second respondent trespassed into the property of the second
respondent, abused and also threatened her with dire consequences.
He is alleged to have used his mobile phone to capture the videos
and photographs of the second respondent and her daughter while
they were washing clothes, bathing etc. The petitioner has also
been accused of making obscene and indecent gestures at the
second respondent and her daughter. No such incident as alleged in
the FIS has taken place. The petitioner was only exercising his
right of recording the instances of mischief being committed by the
respondents. All the allegations in the FIS and the final report
based on a faulty investigation are false. Hence he seeks quashing
of Annexure A1 FIR and Annexure A2 final report alleging the
commission of the offences punishable under Sections 447, 294(b),
509 and 506 Part I IPC.
3. The petitioner appeared in person before this
Court and quite strenuously and persuasively contended that the
registration of the crime and the subsequent final report is "a clear
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instance of maliciously fabricated complaint aimed at harassing
and pressurizing the petitioner". None of the ingredients of the
offences alleged against him are made out from the materials on
record. The FIR, final report and all the proceedings in
C.C.No.55/2023 are an abuse of process of the Court. The
complaint has been filed by the respondent with an ulterior
motive/intention due to the ongoing property dispute with the
petitioner. The complaint has been given as a counterblast to the
defamation notice sent by the petitioner to the 3 rd respondent.
Reference was also made to several decisions of the Apex court
with specific reference to the dictum in State of Haryana v.
Ch.Bhajan Lal, (1992) Supp.1 SCC 335 and it was submitted
that the present case falls under the 7 th Category specified in the
judgment and hence liable to be quashed.
4. Heard both sides.
5. On going through Annexure A1 FIR and
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Annexure A2 final report, the ingredients of the offence under
Section 294(b) IPC are not made out. However, the argument that
the offences punishable under Sections 447, 509 and 506 Part I IPC
are also not made out does not seem to be correct. The allegation
of the 2nd respondent in the FIS is that the petitioner trespassed into
the property in her possession, abused her and showed
obscene/indecent gestures and threatened her with dire
consequences. The petitioner is also alleged to have taken videos of
the second respondent and her daughter. The petitioner contends
that the portion of the property where the bathroom used by the
respondents is situated, also belongs to his mother and that the
respondents have no right over the same. My attention was drawn
to Annexure-A31, the 164 statement of the second respondent, to
substantiate and probabilise his argument that the property belongs
to him. In the 164 statement, the second respondent has stated that
their bathroom is situated outside their residence ; that the
petitioner claiming that the property in which the bathroom is
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situated belongs to him, keeps trespassing into the property and
take videos. Once her husband, that is, the third respondent had
warned the petitioner from doing so, at which instance the accused
threatened and abused the former. Whenever the second
respondent or her daughter goes for bathing and washing clothes,
the petitioner trespasses into their property and starts taking videos
and shows gestures with sexual overtones. On 03/07/2021 the
petitioner trespassed into the property, took videos and when the
second respondent questioned him, the petitioner abused and
threatened to do away with her.
6. The question whether the property where the bathroom
of the respondents is situated belongs to the petitioner or the
respondents is a matter that has to be decided in the civil suit filed
relating to the boundary dispute existing between the parties. The
question whether the petitioner has trespassed into any property in
the possession of the second respondent, irrespective of whether
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she has title over it or not and whether the said trespass amounts to
criminal trespass as contemplated under Section 447 IPC are all
matters to be decided on the basis of the evidence let in, in the trial
of C.C.No.55/2023. At this stage, the Court only need look into
whether a prima facie case is made out from the materials on
record ? The settled law is that the power under Section 482
Cr.P.C. is exercised where the allegations made in the FIS or the
complaint, even if taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a
case against the accused or where the allegation in the
FIR/complaint are so absurd and inherently improbable on the
basis of which, no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused or
where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge.
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7. In this case even before the incident alleged and
before the issuance of the defamation notice by the petitioner, the
parties were at loggerheads. Therefore at this stage it cannot be
decided or concluded that Annexure A1 FIR is a mere counterblast
to the notice issued by the petitioner.
8. The argument that the investigation conducted
was biased, faulty and that though evidence by way of videos had
been given by the petitioner, the police never took the same into
account or considered the same are also matters to be considered in
evidence. If the petitioner has got any such evidence, he is at
liberty to produce it as his evidence. Except for the offence
punishable under Section 294(b) IPC, there are materials to prima
facie make out a case under Sections 447, 509 and Part I of Section
506 IPC. Whether the gestures alleged to have been made by the
petitioner would fall within the definition of Section 509 IPC is a
matter to be decided on the basis of evidence adduced. Likewise,
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whether the threat alleged to have been made by the petitioner
would fall within the ambit of the first part of Section 506 IPC is
also a matter that requires to be decided in the trial of C.C.No.55 of
2023. Annexure A2 final report as far as the offence punishable
under Section 294(b) IPC is concerned, would stand quashed.
However the final report relating to the commission of the offences
punishable under Sections 447, 509 and Part I of Section 506 IPC
will stand and the trial court shall proceed with the same in
accordance with law.
The Crl.M.C. is disposed of as aforesaid.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
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PETITIONER ANNEXURES
Annexure A1 FIR NO. 997/2021 - ERUMELI PS (1ST
OCTOBER 2021)
Annexure A2 FINAL REPORT IN FIR NO. 997/2021 - 24TH
NOVEMBER 2021
Annexure A3 JFCMC ERATTUPETTA NOTICE - 16TH FEBRUARY
2023 (CC NO. 55/2023)
Annexure A4 POA - 7TH FEB 2019 (APPOINTMENT OF
PETITIONER AS ATTORNEY HOLDER FOR
SAFEGUARDING LANDED PROPERTY)
Annexure A5 KERALA HC ORDER IN WPC 15966/2023 - 5TH
JUNE 2023 (REGISTRATION OF GIFT DEED FOR
PETITIONER'S KERALA LAND)
Annexure A6 PATTAYAM DATED 19TH MAR 1998- KERALA
LANDED PROPERTY (PETITIONER'S MOTHER -
50% OWNER)
Annexure A7 PETITIONER'S POLICE COMPLAINT DATED 6TH
JULY 2020 - TREE THEFT (RESPONDENTS)
Annexure A8 PETITIONER'S COMPLAINT FOR TREE THEFT -
KOTTAYAM DPC (9TH JULY 2020)
Annexure A9 RTI APPLICATION, AND ERUMELI POLICE
RESPONSE - TREE THEFT AS CIVIL DISPUTE
(5TH AUGUST 2020)
Annexure A10 FORM 10 APPLICATION - DEMARCATION OF
BOUNDARIES (21ST JULY 2020) TO
KANJIRAPPALLY TEHSILDAR OFFICE
Annexure A11 VIDEO FOOTAGE - TREE THEFT INCIDENT (6TH
JULY 2020)BY DE FACTO COMPLAINANT'S
FAMILY
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Annexure A12 VIDEO FOOTAGE - BOUNDARY DISPUTE
INCIDENT (13TH MAY 2021) SHOWING
PETITIONER'S INTENT TO APPROACH COURTS
Annexure A13 PETITIONER'S POLICE COMPLAINT - PALACKAL
FAMILY (25TH JUNE 2021)
Annexure A14 CIVIL SUIT - OS 26/2022 - PETITION FOR
DECLARATION OF TITLE AND FIXATION OF
BOUNDARIES (PALACKAL FAMILY AND OTHERS)
Annexure A15 PRINCIPAL SESSIONS JUDGE ORDER -
ANTICIPATORY BAIL PETITION - 1ST FEB
Annexure A16 PETITIONER'S POLICE COMPLAINT - 4TH JULY
2021 - DISPUTE OF 3RD JULY 2021
Annexure A17 VIDEO FOOTAGE - 3RD JULY 2021 - DISPUTE
Annexure A18 PETITIONER'S ESCALATION TO DPC - 22ND
JULY 2021 - REGARDING 3RD JULY 2021
DISPUTE
Annexure A19 PETITIONER'S DEFAMATION NOTICE TO
RESPONDENTS - 22ND SEPT 2021
Annexure A20 REGISTERED A/D CARD ACKNOWLEDGING
DEFAMATION NOTICE - 24TH SEPT 2021
Annexure A21 INDIAN POSTAL TRACKING DETAILS OF
DEFAMATION NOTICE - DATE: 24TH SEPT
2021, CONFIRMED DELIVERY TO RESPONDENTS
Annexure A22 FAKE COMPLAINT LODGED BY DEFACTO
COMPLAINANT - DATE: 29TH SEPT 2021,
PERTAINING TO 3RD JULY 2021 DISPUTE
Annexure A23 COMPLAINT AGAINST HIGH-HANDEDNESS AND
INTIMIDATION BY POLICE - 29TH SEPT 2021
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Annexure A24 ERUMELI POLICE SUMMONS - DATE: 30TH SEPT
2021 APPEARANCE REQUIRED: 1ST OCT 2021,
10 AM AT ERUMELI PS
Annexure A25 AUDIO RECORDING - DATE 1ST OCT 2021
CONTENT : ERUMELI SHO THREATENIG FIR
AGAINST PETITIONER IF SETTLEMENT IS
REFUSED WITH COMPLAINANT
Annexure A26 PETITIONER'S COMPLAINT TO DPC, DGP - 1ST
OCT 2021 CONTENT: COMPLAINT AGAINST THE
FAKE CASE, UNLAWFUL ARREST, AND SEIZURE
Annexure A27 PETITIONER'S COMPLAINT TO DGP - DATE:
13TH OCT 2021 CONTENT: COMPLAINT AGAINST
GRAVE MISCONDUCT BY POLICE
Annexure A28 KERALA HIGH COURT ORDER - WP CRL.
411/2021 - DATE: 5TH JULY 2022 CONTENT:
ORDER REQUIRING THE PETITIONER TO FILE A
QUASHING PETITION OR STAND TRIAL.
Annexure A29 POLICE REPORT - DATE: 2ND NOV. 2022 -
CONTENT: REPORT INDICATING THAT THE
SEIZED MOBILE DEVICE WAS NOT SENT FOR
FORENSIC ANALYSIS.
Annexure A30 ARREST MEMO - DATE: 1ST OCT. 2021 -
CONTENT: MEMO LACKING PROPER REASONS FOR
THE ARREST
Annexure A31 SECTION 164 CRPC STATEMENT - DEFACTO
COMPLAINANT'S STATEMENT DATED 16TH NOV
Annexure A32 CONFIRMATION OF SERVICE OF NOTICE TO
RESPONDENTS BY HC DISPATCH SECTION
