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2025 Supreme(Online)(KER) 6280
HIGH COURT OF KERALA
A. BADHARUDEEN, J
T.J.JOSSY @ THAIVEETTIL JOVAKKIM JOSY S/O. JOCKEY – Appellant
Versus
THE STATE OF KERALA – Respondent
Crl.MC 6020/2022
B.KRISHNA MANI, N.V.SANDHYA, DHANUJA M.S, PUBLIC PROSECUTOR SRI.JIBU.T.S, ADV.GERRY DOUGLAS
The Magistrate must provide a reasoned order when summoning accused in criminal cases, ensuring a thorough examination of the complaint and evidence.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Quashing of proceedings - Petitioners sought to quash criminal proceedings for trespass based on allegations deemed civil in nature - The court emphasized that the Magistrate's order must reflect a thorough examination of the complaint and evidence before summoning accused. (Paras 3, 4, 12, 17)
(B) Criminal Trespass - Definition and elements - The court reiterated the definitions of criminal trespass, house-trespass, and lurking house-trespass under IPC, emphasizing the necessity of proving intent and possession. (Paras 8, 9, 10)
Facts of the case:
The petitioners, accused of criminal trespass, argued that the allegations were civil in nature and that the complainant lacked title over the property. The trial court had taken cognizance of the complaint, which the petitioners sought to quash. (Paras 3, 4)
Findings of Court:
The court found the Magistrate's order to be cryptic and lacking in reasoning, necessitating a fresh examination of the complaint and evidence. (Paras 12, 17)
Issues: The main issues included whether the allegations constituted a criminal offence and the validity of the Magistrate's order taking cognizance. (Paras 4, 12)
Ratio Decidendi: The court ruled that the Magistrate must apply his mind to the facts and law before summoning accused, and a non-speaking order is unsustainable. (Paras 12, 16)
Result: The petition was allowed in part, directing the Magistrate to reconsider the matter afresh.
| Table of Content |
|---|
| 1. complaint lodged by the 2nd respondent (Para 3) |
| 2. allegations in the complaint are civil (Para 4) |
| 3. defending the proceedings sought to be quashed (Para 5 , 6 , 12 , 13 , 14 , 15 , 16) |
| 4. trial court took cognizance (Para 7 , 8 , 9 , 10) |
| 5. magistrate must apply his mind (Para 11) |
| 6. annexure-viii order is a cryptic order (Para 17 , 18) |
ORDER
Dated this the 11th day of February, 2025
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 cop
