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2019 Supreme(Cal) 499
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
R. NARAYANA PISHARADI, J.
Anilakumari - Petitioner
Versus
State of Kerala, Represented by Public Prosecutor, High Court of Kerala, Ernakulam & Others - Respondents
Crl.MC.No. 3950 of 2017
Decided On : 31-05-2019
For the Petitioner:V. Bahuleyan, B. Ananthu, Advocates
For the Respondents: D. Kishore, K.K. Sheeba, Public Prosecutor
The central legal point established in the judgment is that the legal provisions under Sections 188, 447, and 427 of the Indian Penal Code were interpreted to determine the petitioner's actions and influence the court's decision to quash the criminal proceedings.
Headnote:
Section 482 - Quashing of Criminal Proceedings - Indian Penal Code - Sections 188, 447, 427 - The court discussed the provisions of Sections 188, 447, and 427 of the Indian Penal Code and their interpretations in the context of the case. It highlighted that the offence under Section 188 requires an order promulgated by a public servant, and does not apply to orders passed by civil courts in judicial proceedings. The court also emphasized that the offence of criminal trespass under Section 447 requires the property to be in the possession of another person, and in this case, the possession of the petitioner over the property was recognized by civil court orders. Additionally, the court examined the offence of mischief under Section 427 and emphasized that the act alleged to have been committed by the petitioner can be regarded as an act in assertion of her right over the property. The legal provisions and their interpretations influenced the court's decision to quash the criminal proceedings against the petitioner.
Fact of the Case:
The petitioner was accused of offences under Sections 188, 447, and 427 of the Indian Penal Code for trespassing into a property and cutting a tree in violation of a civil court order. The court analyzed the allegations and legal provisions to determine the outcome of the case.
Finding of the Court:
The court found that the allegations against the petitioner did not constitute the offences under the mentioned sections of the Indian Penal Code. It emphasized that the petitioner's actions were in assertion of her right over the property, and the continuation of the criminal proceedings would be an abuse of the process of the court.
Issues: The issues revolved around the interpretation of legal provisions under Sections 188, 447, and 427 of the Indian Penal Code and their application to the petitioner's actions in the case.
Ratio Decidendi: The court's decision was based on the interpretation of the legal provisions and their application to the facts of the case. It emphasized that the petitioner's actions did not amount to the offences under the mentioned sections and that the continuation of the criminal proceedings would be an abuse of the process of the court.
Final Decision: The court quashed the proceedings initiated against the petitioner for the offences punishable under Sections 188, 427, and 447 of the Indian Penal Code, based on the Annexure-A1 first information report.
JUDGMENT :
1. The petitioner is the sole accused in the case registered as Crime No.875/2017 of Vattiyoorkkavu police station under Sections 188, 447 and 427 of the Indian Penal Code. She seeks to quash Annexure-A1 first information report registered against her, by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').
2. The case against the petitioner was registered on the basis of the first information statement given to the police by the third respondent. The material averments in the first information statement are as follows: The son of the third respondent owns two acres and thirty seven cents of property. The third respondent is the power of attorney holder of her son. The petitioner is the wife of the brother of the third respondent. There are civil cases pending with regard to the title and possession of the aforesaid property. On 15.05.2017, the petitioner trespassed into the aforesaid property and cut an anjili tree standing therein, causing a loss of Rs.2,00,000/- to the third respondent and her son. Such an act was committed by the petitioner in violation of the direction of the civil court to maintain status quo with regard to the property.
3. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent.
4. Learned counsel for the petitioner contended that registration of the case against the petitioner for an offence punishable under Section 188 of the Indian Penal Code cannot be sustained since there was no complaint given by any public servant as envisaged under Section 195 of the Code. Learned counsel also contended that the title and possession of the petitioner and her daughter over the property involved had been declared by the civil court and therefore, the offences punishable under Sections 447 and 427 I.P.C will also not lie against the petitioner.
5. On the other hand, learned counsel for the third respondent contended that the first information report (Annexure-A1), which is based on the statement given by the third respondent, discloses commission of the offences punishable under Sections 188, 447 and 427 I.P.C by the petitioner and therefore, this Court would not be justified in quashing the proceedings against the petitioner by invoking the power under Section 482 of the Code.
6. Section 188 of the Indian Penal Code reads as follows:
"188. Disobedience to order duly promulgated by public servant: Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation - It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm."
7. The ingredients of the offence under Section 188 I.P.C. are the following: (1) There was promulgation of an order by a public servant lawfully empowered to promulgate such order (2) Such order directed the accused to abstain from a certain act, or to take certain order with certain property in his possession or under his managemen
