High Court Kerala High Court

Anil Kumar @ Unni vs State Of Kerala on 20 June, 2008

Kerala High Court
Anil Kumar @ Unni vs State Of Kerala on 20 June, 2008
       

  

  

 
 
  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

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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

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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

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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

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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

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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

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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.

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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/-

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V.K.MOHANAN, J.

No….

Judgment/Order

Dated: