Kerala High Court
T.J.Jossy, @ Thaiveettil Jovakkim ... vs The State Of Kerala on 11 February, 2025
CRL.MC NO. 6020 OF 2022 1 2025:KER:11136
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA,
1946
CRL.MC NO. 6020 OF 2022
CC NO.543 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II, KOCHI
PETITIONERS/ACCUSED:
1 T.J.JOSY, @ THAIVEETTIL JOVAKKIM JOSY,
AGED 71 YEARS,
HOUSE.NO.CC 25/362(A) (OLD 14/593A) PANDIKKUDY
EAST, SANTO GOPALAN ROAD, KOCHI., PIN - 682002
2 BIYATRESS JOY @ BABY JOY, W/O.M.V.JOY,
AGED 73 YEARS,
MUTTATHIL PARAMBIL HOUSE, CC14/635. KIZHAKKU
NAZRATHU, KOCHI., PIN - 682002
3 M.V.JOY @ M.V.JOSEPH,
AGED 75 YEARS,
MUTTATHIL PARAMBIL HOUSE, CC14/635, KIZHAKKU
NAZARATHU, KOCHI., PIN - 682002
BY ADVS.
B.KRISHNA MANI
N.V.SANDHYA
DHANUJA M.S
RESPONDENTS/THE STATE AND THE DE FACTO COMPLAINANT:
1 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM, PIN - 682031
2 PRASTHEENA JOKKY, W/O.K.P. ANTONY,
CC14/593-A, NOW RESIDING AT HOUSE NO.60/3297,
KONNOTH HOUSE, KONNOTH ENCLAVE, PERUMANOOR,
P.O. DHEEVAR ROAD, KOCHI., PIN - 682015
R1 BY PUBLIC PROSECUTOR SRI.JIBU.T.S.
R2 BY ADV.GERRY DOUGLAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 11.02.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC NO. 6020 OF 2022 2 2025:KER:11136
CR
ORDER
Dated this the 11th day of February, 2025
This Criminal Miscellaneous Case has been filed
under Section 482 of the Code of Criminal Procedure, 1973,
by the petitioners, who are accused Nos.1 to 3 in
C.C.No.543/2022 on the files of the Judicial First Class
Magistrate Court-II, Kochi, and the prayer herein is as
under:
To quash Annexure-I, C.C.No.543/2022
before the Judicial First Class Magistrate-II, Kochi
(Initially numbered as C.M.P.No.3031/2021) and
Annexure-VIII order.
2. Heard the learned counsel for the
petitioners and the learned counsel appearing for the 2 nd
respondent/de facto complainant. Also heard the learned
Public Prosecutor.
3. The prosecution come forth when
Annexure 1 complaint was lodged by the 2nd respondent
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before the Judicial First Class Magistrate - II, Kochi. The
allegation in the complaint is that, the accused herein
criminally trespassed upon the house belonged to the
complainant, which was obtained on the strength of a gift
deed on 11.10.2021, after breaking of its door in the absence
of the complainant, who is the 2 nd respondent and her
husband. The learned Magistrate proceeded with Annexure
1 complaint and recorded the sworn statements of the
complainant and witnesses. Ultimately, as per Annexure-
VIII order dated 26.5.2022, took cognizance for the offences
punishable under Sections 447, 448, 453 and 454 r/w
Section 34 of the Indian Penal Code (for short, 'the IPC'
hereinafter) and numbered the case as C.C.No.543/2022.
Now, the petitioners seek quashment of the above
proceedings.
4. According to the learned counsel for the
petitioners, the allegations in the complaint are purely civil
in nature and the same is the subject matter of civil suit viz.,
O.S.No.420/2015 filed by the siblings of the 2nd respondent
herein viz., Leela Jockey, T.J.Casper and Jossy T.J. It is pointed
out by the learned counsel that the 2 nd respondent herein has no
CRL.MC NO. 6020 OF 2022 4 2025:KER:11136
right, title or interest over the property in question and she
is not entitled to file a criminal complaint against the
petitioners on the basis of a fraudulent document, which is
already under challenge at the instance of the executant of
the same. Thus, the entire contentions are devoid of merits.
He further argued that the 2nd respondent filed a suit earlier
which resulted in Annexure-VI judgment, whereby it was
found that the 2nd respondent has neither title nor
possession over the property in question. Under such
circumstances, no trespass in the eye of law. The learned
counsel further argued that the entire allegations in terms of
Annexure 1, are totally false and no such incident occurred
and that the ingredients to constitute the offences alleged
are not made out. It is further contended by the learned
counsel that the trial court took cognizance of Annexure 1 by
not forwarding the same to the concerned police station for
registering a crime. Instead, the Magistrate Court has
passed Annexure-VIII order by taking Annexure 1 complaint
on file and numbering the same as C.C.543/2022. The
learned counsel further pointed out that Annexure-VIII
order is not a speaking order. The entire procedure adopted
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by the Magistrate Court is illegal and beyond the powers
conferred. Under such circumstances, the learned
Magistrate went wrong in issuing summons to the accused
in terms of Annexure-VIII order by not adhering to the
procedure established by law. Therefore, the further
proceedings are liable to be quashed, is the submission
made by the learned counsel for the petitioners.
5. While defending the proceedings sought to
be quashed, the learned counsel for the de facto
complainant filed Crl.M.A.No.3/2024 to receive copy of gift
deed executed by Leela Jockey in favour of the 2 nd
respondent as Annexure R2(a), copy of the Encumbrance
Certificate as Annexure R2(b), copy of Building Permit as
Annexure R2(c), copy of Occupancy Certificate as Annexure
R2 (d), copy of invoice issued by KSEB as Annexure R2(e),
copy of Ownership Certificate as Annexure R2(f), copy of
Building Certificate as Annexure R2(g) and copy of Property
Tax receipt in her name to show her possession over the
property as Annexure R2(h). That apart, copy of judgment
in C.C.No.434/2016 on the files of the Judicial First Class
Magistrate Court-II, Kochi, as Annexure R2(i) also placed.
CRL.MC NO. 6020 OF 2022 6 2025:KER:11136
nd
In addition to that, the 2 respondent filed
Crl.M.A.No.1/2025 to receive copy of judgment in
O.S.No.420/2015 delivered on 22.1.2025 as Annexure R2(j).
According to the learned counsel for the 2 nd respondent, as
per Annexure R2(j) judgment, the suit filed by Leela Jockey,
T.J.Casper and Jossy T.J., was dismissed by the learned
Munsiff holding that the gift deed in favour of the 2 nd
respondent herein as a valid document whereby, she
obtained title and possession over the same. It is pointed
out further that in this matter, the allegation in the
complaint is that the accused herein criminally trespassed
upon the house owned and possessed by the complainant on
the strength of a gift deed on 11.10.2021, after breaking of its
door in the absence of the 2nd respondent and her husband.
According to the learned counsel for the 2 nd respondent, the
allegation as to commission of the above offences is well
made out, prima facie, since the accused have no manner of
right over the property or the house situated therein. He
also submitted that the case of the complainant is fortified
by Annexure R2(j) verdict of the civil court and therefore,
the proceedings of the trial court shall go on.
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6. The learned Public Prosecutor supported
the argument of the de facto complainant, even though the
case stems from a private complaint lodged by the 2 nd
respondent before the trial court.
7. In this matter, as averred in the complaint
and as found by the learned Munsiff in Annexure R2(j)
judgment, the gift deed relied on by the 2 nd respondent who
obtained title and possession over the property, is found to
be a valid document.
8. Here, the trial court took cognizance for
the offence punishable under Sections 447 of the IPC which
provides punishment for "criminal trespass" and "criminal
trespass" is defined under Section 441 of the IPC. Similarly,
the trial court took cognizance for the offence under Section
448 of the IPC which provides punishment for "house-
trespass" and "house-trespass" is defined under Section 442
of the IPC. Apart from that, the trial court took cognizance
for the offence under Section 453 of the IPC, punishment for
lurking house-trespass and Section 454 of the IPC, lurking
house-trespass or house-breaking in order to commit
offence punishable with imprisonment. "Lurking house-
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trespass" is defined under Section 443 of the IPC.
Therefore, Sections 441, 442 and 443 of the IPC are
extracted hereunder:
441. Criminal trespass.--Whoever
enters into or upon property in the possession of
another with intent to commit an offence or to
intimidate, insult or annoy any person in possession
of such property,
or having lawfully entered into or upon
such property, unlawfully remains there with intent
thereby to intimidate, insult or annoy any such
person, or with intent to commit an offence,
is said to commit "criminal trespass".
442. House-trespass.--Whoever
commits criminal trespass by entering into or
remaining in any building, tent or vessel used as a
human dwelling or any building used as a place for
worship, or as a place for the custody of property, is
said to commit "house-trespass".
Explanation.--The introduction of any part of the
criminal trespasser's body is entering sufficient to
constitute house-trespass.
443. Lurking house-trespass.--
Whoever commits house-trespass having taken
precautions to conceal such house-trespass from
some person who has a right to exclude or eject the
trespasser from the building, tent or vessel which is
the subject of the trespass, is said to commit
CRL.MC NO. 6020 OF 2022 9 2025:KER:11136
"lurking house-trespass".
9. Reading Sections 441, 442 and 443 of the
IPC, criminal trespass is defined in Section 441 as entering
into or upon property in possession of another with intent to
commit an offence or to intimidate, insult or annoy any
person in possession of such property. So, the aim or
dominant intention of the accused for committing an
offence or intimidation, insult or annoyance must be
proved. Committing criminal trespass by entering into or
remaining in any building, tent or vessel used as a human
dwelling or any building used as a place for worship, or as a
place for the custody of property, is said to commit "house-
trespass". Similarly, "lurking house-trespass" means
committing house-trespass having taken precautions to
conceal such house-trespass from some person who has a
right to exclude or eject the trespasser from the building,
tent or vessel which is the subject matter of the trespass.
Reading the definition of Sections 441 to 443 of the IPC,
entering into or upon the property in possession of another
is the primary ingredient to find criminal trespass, house
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trespass and lurking house-trespass.
10. In the instant case, according to the 2nd
respondent, she is the owner in possession of the house,
where the accused alleged to have criminally trespassed, on
the strength of Annexure R2(a) gift deed. As per Annexure
R2(j) judgment, competent civil court found the same as a
genuine document. It is not in dispute that Annexure R2(j)
judgment can be subject matter of challenge by appeal.
However, the question arises for consideration is, what is
meant by 'entering into or upon property in the possession
of another' as stated in Section 441 of the IPC?. When a
person possesses a property in exclusion of other person's
right legally and relying on a title deed unless and until the
title deed is declared as set aside or declared as void by a
competent civil court, the possession based on the said title
deed is sufficient to meet possession dealt under Section 441
of the IPC and for the purpose of Sections 442 and 443 of
the IPC.
11. In the instant case, the 2nd respondent has
a definite case that she is having title and possession of the
property on the strength of Annexure R2(a) gift deed, which
CRL.MC NO. 6020 OF 2022 11 2025:KER:11136
nd
was locked by her. The further case of the 2 respondent is
that, the accused herein, who are having no right upon the
property and the building, trespassed upon the same, after
breaking open its key. Thus, the allegation in the complaint,
prima facie, makes the basis of the offences alleged.
12. In this matter, even though the contention
raised by the petitioners asserting the point that Annexure 1
complaint did not prima facie constitute the offences as
alleged and the said contention could not succeed, it is
noticed that Annexure-VIII order passed by the learned
Magistrate is a cryptic order without reasons.
13. In the decision in Chandran C.R v. State
of Kerala reported in (2024 KHC OnLine 514), in
paragraph Nos.6, this Court held the legal position as under:
6. It is specifically pointed out by the learned
Counsel for the petitioner further that the de-
facto complainant herein is none other than the
former Secretary of Palamel Service Cooperative
Society Ltd No.4013, and she was suspended
from service with effect from 24/01/2016, on the
allegation that she swindled away Rs.17,51,131/-
from the Society. The petitioner herein is the
President of the Society, and it is at his juncture,
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misappropriation was detected. As a sequel
thereof, apart from suspending the de-facto
complainant from service, crime was registered
against her. Thereafter, she was prosecuted as
per the proceedings in CC No.524/2018 and
convicted and sentenced for the offence
punishable under S.409 of IPC. The judgment in
CC No.524/2018 dated 13/05/2024 has been
placed for the perusal of this Court. Annexure
A14 produced before this Court is the copy of FIR
which led to conviction in CC No.524/2018.
14. In M/s.Pepsi Foods Ltd and Another
v. Special Judicial Magistrate and Others (1998
KHC 1055), in paragraph No.28, the Apex Court held as
under:
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
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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.
15. Again, in GHCL Employees Stock
Option Trust (M/s) v. M/s.India Infoline Ltd and
Others (2013 KHC 4229) in paragraph No.14, it was
held as under:
Summoning of accused in a criminal a serious
matter. Hence, criminal law cannot be set into
motion as a matter of course. The order of
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. The
Magistrate has to record his satisfaction with
regard to the existence of a prima facie case on
the basis of specific allegations made in the
complaint supported by satisfactory evidence and
other material on record.
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16. In Chandran C.R's case (supra), in
paragraph No.10, this Court held that the order of
Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. The Magistrate has to record his
satisfaction with regard to the existence of a prima facie
case on the basis of specific allegations made in the
complaint supported by satisfactory material evidence on
record. Criminal law cannot be set into motion as a matter
of course. The Court 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
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prima facie committed by all or any of the accused. In the
said decision, in paragraph No.11, this Court held as under:
11. Therefore, an order taking cognizance should be
self speaking and the same should contain the
materials relied on by referring the same in detail
and based on the said materials the offences for
which cognizance proposed to be taken are made
out, so as to justify the order taking cognizance. The
order of cognizance without disclosing the essentials
described herein above, in the form of a cryptic,
irrational and non speaking, would not sustain in
the eye of law. Therefore, the cryptic order taking
cognizance challenged in this petition would require
interference and accordingly order dated
23/07/2016 passed by the Magistrate is liable to be
set aside However, the matter would require
reconsideration by the Magistrate after considering
the materials, including the statements given by
CWs 1 to 3, afresh in view of the settled law herein
above discussed. For the said purpose, the matter is
liable to be remanded back to the trial court.
17. Since Annexure-VIII order is a cryptic and
non-speaking order, the same is set aside and the learned
Magistrate is directed to pass fresh orders on the basis of the
allegations in the complaint and sworn statements recorded
CRL.MC NO. 6020 OF 2022 16 2025:KER:11136
as that of the complainant and witnesses, afresh, as per law
and proceed further.
18. As regards to the procedural irregularity
pointed out by the learned counsel for the petitioners, there
is no procedural irregularity in the matter of not forwarding
the complaint to the police.
Accordingly, this Crl.M.C. stands allowed in part as
indicated above. For the said purpose, the complainant is
directed to appear before the Magistrate Court on 3.3.2025.
Registry is directed to inform this matter to the
jurisdictional court, for information and further steps.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
CRL.MC NO. 6020 OF 2022 17 2025:KER:11136
PETITIONERS' ANNEXURES
Annexure 1 CERTIFIED COPY OF THE COMPLAINT
FILLED BY THE 2ND RESPONDENT IN
C.C.NO.543/2022 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-II,
KOCHI
Annexure-II TRUE COPY STATEMENTS OF THE DE FACTO
COMPLAINANT DATED 24-5-2022 IN
Annexure-III TRUE COPY STATEMENT OF THE DE FACTO
COMPLAINANT DATED NIL IN
Annexure-IV TRUE COPY OF THE PLAINT IN
O.S.NO.420/2015 BEFORE THE MUNSIFFS
COURT, KOCHI DATED 30-9-2015
Annexure-V TRUE COPY OF THE WILL BEARING
NO.161/3/12
Annexure-VI TRUE COPY OF THE JUDGMENT IN
O.S.NO.141/2008 BEFORE THE SUB COURT,
KOCHI DATED 3/1/2012
Annexure-VII TRUE COPY OF THE JUDGMENT IN
RFA.NO.485/2012 BEFORE THE HON'BLE
HIGH COURT OF KERALA AT ERNAKULAM
DATED 8-6-2022
Annexure-VIII TRUE COPY OF THE ORDER DATED
26/5/2022 IN CMP.NO.3831/2021 BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-II KOCHI
Annexure-IX TRUE COPY OF THE SUMMONS ISSUED TO
THE 1ST PETITIONER
RESPONDENTS' ANNEXURES
Annexure R2 (a) TRUE COPY OF TITLE DEED NO.3479/2015
Annexure R2 (b) TRUE COPY OF ENCUMBRANCE CERTIFICATE
DATED 12/12/2015
Annexure R2 (c) TRUE COPY OF BUILDING PERMIT DATED
27/12/2006.
Annexure R2 (d) TRUE COPY OF OCCUPANCY CERTIFICATE
DATED 23/08/2007
Annexure R2 (e) TRUE COPY OF KSEB BILL DATED
25/05/2022
Annexure R2 (f) TRUE COPY OF OWNERSHIP CERTIFICATE
DATED 12/02/2022.
Annexure R2 (g) TRUE COPY OF BUILDING CERTIFICATE
DATED 5/06/2024
CRL.MC NO. 6020 OF 2022 18 2025:KER:11136
Annexure R2 (h) TRUE COPY OF PROPERTY TAX RECEIPT
DATED 24/05/2024.
Annexure R2 (i) TRUE COPY OF JUDGMENT DATED
25/07/2023 IN CC NO.434/2016 ON THE
FILES OF HON'BLE JFCM-II, KOCHI
ACQUITTING R2 IN ABOVE CRL MC.
Annexure R2 (j) TRUE COPY OF JUDGMENT DATED
22/01/2025 IN O.S.NO.420/2015 ON THE
FILES OF HON'BLE MUNISFF COURT, KOCHI
