IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4101 of 2005()
1. ANIL KUMAR @ UNNI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. RAMACHANDRAN PILLAI @ RAJENDRAN PILLAI,
For Petitioner :SMT.DEEPA G. PAL
For Respondent :SRI.MVS.NAMBOOTHIRY
The Hon'ble MR. Justice V.K.MOHANAN
Dated :20/06/2008
O R D E R
V.K.MOHANAN, J.
----------------------------------------------
CRL.M.C. No.4101 OF 2005
----------------------------------------------
Dated, 20th June, 2008.
ORDER
The petitioner is the sole accused in C.C.No 146/2004
pending before the Judicial First Class Magistrate Court,
Ranny which is a case instituted based upon Final Report,
Annexure-I, in crime No. 25/2004 of Ranny Police Station
for the offence under section 379 of IPC. The petitioner
now seeks an order under section 482 of Cr.P.C. quashing
Annexure-I Final Report report and all further proceedings
thereon pending before the court below.
2. The averments in the above Crl.M.C. is to the
effect that the petitioner is the son of the 2nd
respondent’s brother. Both the petitioner’s father and the
2nd respondent claim ownership over the property in
question as the same belonged to their mother. The
allegation against the petitioner is that he had cut and
removed 55 rubber trees, two coconut trees and two jack
trees from the property owned by the 2nd respondent by
CRL.M.C.4101/05
-:2:-
the end of December 2003 and in between 16-1-2004. On
the strength of the above allegation, the 2nd respondent
lodged information before the Ranny police station
wherein F.I.R in crime No.25/2004 for the offence under
section 379 of IPC was registered against the petitioner.
The Ranny Police, after investigation, filed Annexure I
final report on the basis of which the Judicial First Class
Magistrate, Ranny took cognizance and instituted
C.C.No.146/2004 for the above offence. It is the above
case and Annexure I final report are being challenged in
this Crl.M.C. and the petitioner prays that the above
proceedings may be quashed.
3. I have heard the learned counsel for the
petitioner as well as the counsel for the 2nd respondent
and also the learned Public Prosecutor.
4. The learned counsel appearing for the petitioner
submitted that the petitioner has already approached the
Munsiff’s court, Ranni by filing O.S No.47/2004, copy of
which is produced as Annexure 2. It is submitted by the
CRL.M.C.4101/05
-:3:-
counsel that in the above suit, the petitioner has got an
interim order of injunction restraining the 2nd
respondent/de facto complainant from dispossessing the
petitioner from the property in question. It is the further
case that as a counter blast to the above suit, the 2nd
respondent filed a suit, i.e., O.S.No.74/2004 before the
same court which is produced as Annexure-3. It is also
submitted by the petitioner’s counsel that despite the
above civil suit, the 2nd respondent has filed another suit
also, i.e., O.S.211/2004 claiming damages. Thus the
counsel for the petitioner submitted that a very serious
civil dispute is pending before the competent court and
the petitioner also claimed absolute right over the
property as evidenced by Annexure 2 and the interim
order passed thereon and therefore, according to the
learned counsel for the petitioner, even if the so called
items of trees were removed, it will not amount to theft
as there is no dishonest intention. On the other hand,
the said act can only be treated as part of his exercise of
CRL.M.C.4101/05
-:4:-
right over the property.
5. Per contra, the learned counsel for the 2nd
respondent submitted that the petitioner herein had
preferred the suit O.S.47/2004 only on 25-2-2004 as a
counter blast to the criminal proceedings initiated at the
instance of the 2nd respondent. On the basis of
Annexure-I Final Report, the learned counsel submitted
that the 2nd respondent approached the police on 18-1-
2004 alleging the offence committed by the petitioner and
after registration of crime on 18-1-2004 the police
conducted a thorough investigation and the stolen
properties were recovered in accordance with law. It is
also the case of the 2nd respondent that they have
approached the civil court for claiming damages by
filing O.S.211/2004. According to the counsel for the 2nd
respondent, the 2nd respondent has absolute ownership
and right over the property in question and he is residing
far away from the property and it was in this
circumstances, the petitioner herein filed O.S.47/2004 on
CRL.M.C.4101/05
-:5:-
the ground of adverse possession. According to the
counsel, merely a suit was filed for adverse possession,
no absolute ownership will confer on the
plaintiff/petitioner.
6. The learned Public Prosecutor submitted that on
the basis of the information furnished by the 2nd
respondent, police have registered F.I.R. and
subsequently, investigation was undertaken which
resulted in Annexure -I final report and during the
investigation it is found that the petitioner has committed
offence under section 379 of IPC. It is also pointed out
that during police investigation, no evidence or
documents produced by the petitioner to substantiate his
right over the property defending the criminal allegation.
7. I have considered the submissions made by the
counsel and also perused the documents and records
and materials available on records. The place of
occurrence in the present case is pertained to the
property in Sy.No.29/16-4 (0.789 hectares) and
CRL.M.C.4101/05
-:6:-
Sy.No.29/16-15 (0.0324 hectares), the total extent is
0.01113 hectares which is equivalent to 27 1/2 cents.
From the submissions and various records filed by the
parties, it appears to me that a civil dispute is pending
before the competent court and each of them are
claiming their right over the property. In the present
case, after registering the crime, police conducted
investigation and through their investigation they found
that the petitioner has committed the offence. In support
of the above allegation they have produced various
materials. Admittedly, The petitioner herein had
preferred the suit O.S.47/2004 only on 25-2-2004
whereas FIR was registered on 18-1-2004. At the time of
lodging the FIR, whether the petitioner has got any right
over the property is a question of fact to be decided at the
time of trial by both the criminal court as well as the civil
court. At present the police after investigation found
that the petitioner is guilty of the offence under section
379 of IPC. I am not proposed to enter into the merits of
CRL.M.C.4101/05
-:7:-
the criminal case against the petitioner. Whatever the
defence the petitioner has got, the same can be raised
before the trial court and if he has got any right over the
property, the same can be brought to the notice of the
trial court. The counsel for the petitioner submitted
that even if the removal of the property is admitted, it will
not amount to theft since the petitioner got right over
the property and no dishonest intention can be attributed
with the removal of property. It is relevant to note that
in a proceedings under section 482 of Cr.P.C., this Court
has no jurisdiction to conduct an enquiry and decide the
right, when the facts are under dispute. Whether the
petitioner has got right over the property in question
and whether he had dishonest intention in removing the
articles etc. are to be decided on the basis of evidence to
be adduced at the time of trial. It is also open to the
petitioner to raise all his contentions regarding his right
over the property and other pleadings before the trial
court at the time of framing of charge.
CRL.M.C.4101/05
-:8:-
8. In the light of the above facts and circumstances,
I am not inclined to interfere with the criminal trial, but
the petitioner is at liberty to raise all objections and
pleadings at the time of framing of charge and with the
above observation, the Crl.M.C. is dismissed.
V.K.MOHANAN, JUDGE
kvm/-
CRL.M.C.4101/05
-:9:-
V.K.MOHANAN, J.
No….
Judgment/Order
Dated: