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2024 Supreme(Online)(KER) 40690
HIGH COURT OF KERALA
P. G. Ajithkumar, J
SURESH BABU – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 1076/2018
SRI.P.FAZIL, SMT.JAYASREE MANOJ, SRI.SAJU THALIATH, SRI.V.S.SREEJITH, SRI.K.SUNIL, SRI.SONNYMON K. MATHEW
The court emphasized that contentions regarding the applicability of IPC sections must be raised before the trial court, allowing the petitioner to file an application to drop proceedings under Section 258 Cr.P.C.
Headnote:(A) Indian Penal Code, 1860 - Sections 447 and 427 - Criminal Procedure Code, 1973 - Section 155(2) and 258 - Quashing of proceedings - The petitioner sought to quash proceedings alleging offences of trespass and mischief, asserting that the alleged trespass occurred on a pathway owned by him, and that the charges were non-cognizable without prior permission. The court held that these contentions should be raised before the trial court, allowing the petitioner to file an application to drop proceedings. (Paras 1-4)
(B) Criminal Procedure - The court directed that if an application under Section 258 is filed, the jurisdictional court must consider it expeditiously, ensuring the petitioner's presence is not required until final orders are made. (Paras 2-3)
Facts of the case:
The petitioner filed a Criminal Miscellaneous case to quash proceedings in a case alleging offences under IPC sections for trespass and mischief, claiming ownership of the pathway in question.
Findings of Court:
The court allowed the petitioner to file an application under Section 258 Cr.P.C. to drop proceedings and exempted his presence until the application is decided.
Issues: The main issues were whether the allegations constituted an offence and the appropriateness of the Magistrate's cognizance without prior permission.
Ratio Decidendi: The court ruled that the contentions regarding the applicability of IPC sections should be addressed at the trial court level, emphasizing the procedural rights of the petitioner.
Result: Criminal Miscellaneous case disposed of with directions.
O R D E R
This Criminal Miscellaneous case is filed to quash the proceedings in CC No. 1597 of 2017 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram arising from Crime No. 1109/2015 of Poojappura Police Station. The above case is charge-sheeted alleging offences punishable under Secs. 447, 427 r/w 34 IPC .
2. According to the petitioner, even if the entire allegations are accepted, no offence is made out. It is the definite case of the petitioner that the alleged trespass is to a place, which is a pathway. According to the petitioner, the title of that property is with the petitioner. The counsel submitted that Sec. 447 IPC is not attracted in such situation and Sec. 427 is to be quashed, because it is a non- cognizable offence and even then, the learned Magistrate had taken cognizance without permission under Sec. 155(2) Cr.P.C. I am of the considered opinion that these are contentions to be raised before the trial court, at the appropriate stage, especially because, all the contentions raised by the petitioner are disputed by the 2nd respondent.
3. The counsel for the petitioner submitted that the petitioner may be allowed to file an application under Sec.258 Cr.P.C. to drop the proceedings. I think that prayer can be allowed. The counsel submitted that till consideration of the same, the presence of the petitioner may be exempted. That prayer also can be allowed. The petitioner is free to produce additional documents also before the trial court, if he intends to do so.
Therefore, this Criminal Miscellaneous case is disposed of with the following directions :
1) The petitioner is free to file an application under Sec.
258 Cr.P.C. within thirty days from the date of receipt of a certified copy of this order.
2) If such a petition is received, the Jurisdictional Court will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the counsel for the petitioner and the learned Public Prosecutor concerned, as expeditiously as possible, at any rate, within six weeks from the date of receipt of the petition.
3) If the petition as directed above is filed, the presence of the petitioner shall not be insisted by the learned Magistrate till final orders are passed in the petition filed under Sec. 258 Cr.P.C.
4) All the contentions raised by the petitioner in this Crl.M.C. are left open and the petitioner is free to agitate the same before the trial court in the petition filed under Sec.258 Cr.P.C.
5) Registry will forward a copy of this order to the jurisdictional court forthwith.
