The court emphasized that criminal trespass requires proof of intent and possession, and a cognizance order must be detailed and reasoned, not cryptic.

ORDER :

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 2nd 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 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 2nd 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 2nd respondent herein has no 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 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 2nd 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 Prop