Kerala High Court
Devarajan vs State Of Kerala on 14 February, 2025
2025:KER:12809
Crl.M.C.No.3412 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
CRL.MC NO.3412 OF 2020
IN CC NO.303 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, SOUTH PARAVUR, KOLLAM
ARISING OUT OF THE ORDER DATED 26.11.2019 IN CRL.M.P.
NO.2028 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
SOUTH PARAVUR, KOLLAM
PETITIONERS/ACCUSED NOS.1 TO 5:
1 DEVARAJAN
AGED 76 YEARS, S/O.KUNJULI,
NEDIYA VILA MEKKU MURI VEEDU, PUTHENKULAM,
POOTHAKKULAM CHERRY, KOLLAM, PIN - 691 302.
2 SANTHA KUMARI,
AGED 66 YEARS, W/O.DEVARAJAN,
NEDIYA VILA MEKKU MURI VEEDU, PUTHENKULAM,
POOTHAKKULAM CHERRY, KOLLAM, PIN - 691 302.
3 SAJEEV DEVARAJAN,
AGED 49 YEARS, S/O.DEVARAJAN,
NEDIYA VILA MEKKU MURI VEEDU, PUTHENKULAM,
POOTHAKKULAM CHERRY, KOLLAM, PIN - 691 302.
4 SAJITH DEVARAJAN,
AGED 46 YEARS, S/O.DEVARAJAN,
NEDIYA VILA MEKKU MURI VEEDU, PUTHENKULAM,
POOTHAKKULAM CHERRY, KOLLAM, PIN - 691 302.
5 SAIJU DEVARAJAN
AGED 43 YEARS, S/O.DEVARAJAN,
NEDIYA VILA MEKKU MURI VEEDU, PUTHENKULAM,
POOTHAKKULAM CHERRY, KOLLAM, PIN - 691 302.
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Crl.M.C.No.3412 of 2020
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BY ADVS.
T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.K.C.KIRAN
SMT.M.R.MINI
SHRI.THAREEQ ANVER
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
2 ASHOK KUMAR,
AGED 58 YEARS, S/O.DHAMANAN, PUTHEN VEEDU,
MULLARAMCODE DESHAM, OTTOOR VILLAGE, KOLLAM - 691 001.
BY ADV.
SRI SANGEETHARAJ NR, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 14.02.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Crl.M.C.No.3412 of 2020
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G. GIRISH, J.
--------------------------------
Crl.M.C.No.3412 of 2020
-------------------------------------
Dated this the 14th day of February, 2025
ORDER
The petitioners are accused Nos.1 to 5 in C.C.No.303 of 2019 on the
files of the Judicial First Class Magistrate Court, South Paravur, Kollam
District, a case instituted on a private complaint filed by the 2nd respondent.
The allegation against the petitioners is that they criminally trespassed into
the 151/2 Cents of land, which belonged to the complainant and his siblings
and committed theft by cutting and removing the standing trees situated
therein. The 6th accused is the driver of a mini lorry, who allegedly helped
the petitioners to remove the timber from the aforesaid property. It is
further alleged that the 6th accused criminally intimidated the 2nd
respondent, whereas the petitioners caused destruction of evidence by
disposing of the trees so cut and removed from that property.
2. The learned Magistrate recorded the sworn statement of the
defacto complainant and one witness. It is also seen that the learned
Magistrate had called for a report from the Station House Officer, Paravur
Police Station, on the complaint filed by the defacto complainant.
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Thereafter, by virtue of Annexure-5 order dated 26.11.2019, the learned
Magistrate held that there are sufficient grounds to proceed against the
accused in connection with the commission of offence under Sections 200,
201, 120 B, 379, 447 and 506(ii) IPC, read with Section 34 IPC, and issued
summons to the accused. In the present petition filed under Section 482 of
the Code of Criminal Procedure, the petitioners seek to quash the
proceedings in the aforesaid case.
3. Though notice was duly served on the defacto complainant /
2nd respondent, he did not choose to appear before this Court or to file any
counter.
4. Heard the learned counsel for the petitioners, and the learned
Public Prosecutor representing the 1st respondent.
5. The sum and substance of the complaint which the 2nd
respondent filed before the Judicial First Class Magistrate Court, South
Paravur, is that the petitioners, with the help of the 6th accused, cut and
removed the standing trees situated in the 151/2 Cents of land which
belonged to the defacto complainant and his siblings, on 05.05.2019 and
08.05.2019. However, it could be discerned from the various averments in
the complaint that the defacto complainant has conceded the fact that the
aforesaid property of 151/2 Cents in extent, was remaining under the
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absolute possession of the petitioners herein. The complaint also reveals
the history of civil disputes persisting for more than three decades in
connection with the aforesaid property. The grievance of the defacto
complainant is that the petitioners herein committed the aforesaid act of
cutting and removing the trees situated in the said 151/2 Cents of land
remaining under their possession, in violation of the decree and judgments
rendered by various civil courts. It is also clear from the averments in the
complaint that the defacto complainant has not so far succeeded in getting
recovery of possession of the aforesaid 151/2 Cents of land from the
petitioners herein through execution proceedings. The learned counsel for
the petitioners, by adverting to Annexure-6 judgment rendered by this
Court in an original petition filed by petitioners 1 and 2 herein under Article
227 of the Constitution of India, pointed out that there is the clear finding
of this Court that the property from where the trees are said to have been
cut and removed, remained under the exclusive possession of the
petitioners. It is also submitted that, on the basis of the aforesaid finding,
the defacto complainant and others were restrained by this Court, by an
interim order, from interfering with the possession of the petitioners over
the said property. Thus, it is pointed out that none of the offences alleged
in Annexure-I complaint are attracted , in the facts and circumstances of
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this case.
6. As already stated above, it is writ large from the various
averments in the complaint itself that the grievance of the defacto
complainant is about the acts being committed by the petitioners in
violation of the decree and judgments of the civil courts which conferred
the right to the defacto complainant over the aforesaid extent of 151/2
Cents of land. Since it is the admitted case of the complainant that the
petitioners are in possession of the aforesaid property, the act of cutting
down trees from the said property and removing the same would not
constitute the offence of theft as contemplated under Section 379 IPC. So
also, there cannot be any trespass committed by the petitioners over a
property, which is remaining under their own possession. When viewed in
the above perspective, it has to be concluded that even if the allegations in
Annexure-I complaint is accepted as such, it would not constitute the
offence of criminal trespass and theft alleged by the defacto complainant.
When the substratum of the accusation in Annexure-I complaint is found to
be unsustainable, there is no scope for a finding against the petitioners
regarding the other offence under Section 201 IPC pertaining to the
disposal of trees cut and removed from the property remaining under their
possession.
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7. So also, it is not possible to say that the offence under Section
506(ii) IPC, pertaining to criminal intimidation, has been brought out in the
facts and circumstances of this case. It appears that the attempt of the
defacto complainant was to try whether the alleged violation of the decree
and judgments of the civil court by the petitioners could be moulded as a
criminal offence, and the matter could be taken up before the criminal
court. Needless to say, such a course cannot be permitted since it would be
nothing short of abuse of process of court. Therefore, the prayer of the
petitioners for quashing the proceedings in C.C.No.303 of 2019 on the files
of the Judicial First Class Magistrate Court, South Paravur, is fully justified.
In the result, the petition stands allowed. The proceedings before the
Judicial First Class Magistrate Court, South Paravur, in C.C.No.303 of 2019,
are hereby quashed.
Sd/-
G. GIRISH
JUDGE
ded
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PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE COMPLAINT DATED 15.07.2019 IN
CRL.MP NO.2028/2019 FILED BEFORE THE MUNSIFF
MAGISTRATE COURT, PARAVUR.
ANNEXURE 2 TRUE COPY OF THE SWORN STATEMENT OF THE
COMPLAINANT DATED 27.07.2019.
ANNEXURE 3 TRUE COPY OF THE SWORN STATEMENT OF A WITNESS
DATED 17.08.2019.
ANNEXURE 4 TRUE COPY OF THE ENQUIRY REPORT DATED
19.10.2019 SUBMITTED BY THE STATION HOUSE
OFFICER, PARAVUR POLICE STATION.
ANNEXURE 5 CERTIFIED COPY OF THE ORDER DATED 26.11.2019
IN CRL.MP NO.2028/2019 PASSED BY THE JFCM,
SOUTH PARAVUR,
ANNEXURE 6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN OP(C)NO.2636/2014 DATED 19.11.2014.
