Partly allowed

Sumesh Babu v. State of Kerala

Kerala HC19 Aug 2009Crl.MC/208/2006

Case brief

AI extract

What is this about?

In a criminal petition under CrPC Section 482 seeking quashing of a case for damaging an electricity tower, the High Court held that while the first petitioner must face trial as an aggrieved party, proceedings against the other two petitioners lacking any material evidence are an abuse of process and are quashed.

What did the court decide?

Criminal Misc. Case No.342/2005 as against Petitioners 2 and 3 is quashed; Petitioner 1 is permitted to continue facing trial.

Sumesh Babu Vs State of Kerala — Service and Employment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931

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Crl.MC.No. 208 of 2006() -----------------------CC.342/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... (F.I.R.NO.76/2005 OF KONGAD POLICE STATION)

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PETITIONER(S): -------------------------1. SUMESH BABU, CHATHAMKULAM ASSOCIATES, CHULLIMADA, KANCHIKODE, PALAKKAD TALUK.

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2. RAJEESH BABU, CHATHAMKULAM ASSOCIATES, CHULLIMADA, KANCHIKODE, PALAKKAD TALUK.

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3. BAVADAS, CHATHAMKULAM ASSOCIATES, CHULLIMADA, KANCHIKODE, PALAKKAD TALUK.

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BY ADVS. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN, MR.K.ANAND.

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RESPONDENT(S):

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---------------------------1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2. SMT.VALSALAKUMARI, THE EXECUTIVE ENGINEER, K.S.E.B., TRANSMISSION CONSTRUCTION DIVISION, MANNARKKAD.

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3. SUB INSPECTOR OF POLICE, KONGAD POLICE STATION.

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R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR R2 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE. MR.K.S.ANIL, SC, KSEB.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/08/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Kss

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M.Sasidharan Nambiar, J.

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Crl.M.C.No.208 of 2006

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ORDER

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Petitioners are the accused in C.C.No.342/2005 on the file of Judicial First Class Magistrate's Court-II, Palakkad, taken cognizance for the offence under Section 3(1)(a) of PDPP Act. Prosecution case is that on the night of 28.2.2005, petitioner, in furtherance of their common intention, damaged the tower erected by Kerala State Electricity Board (hereinafter referred to as 'the Board') by cutting the legs of the tower and thereby caused a loss of Rs.1,50,000/- to the Board. This petition is filed under Section 482 of Code of Criminal Procedure to quash the case contending that prosecution is launched without bona fides and though the Board was permitted to draw the 33 K.V. line through the boundary of the property of the first petitioner as per the approved plan, in violation of the directions of this Court, attempt was made to draw the line through the property of the first petitioner and as the first petitioner objected to the same, a

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CRMC 208/06 2

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false case is lodged against the petitioners. It is contended that even if the prosecution case is accepted, there is absolutely no material as against petitioners 2 and 3 and even against first petitioner, there is no acceptable evidence and therefore, continuation of the proceedings is only an abuse of process of the court.

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Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard.

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Admitted facts establish that there was dispute with regard to drawing of 33 K.V. line near to the property of the first petitioner. Petitioner filed W.P. (C)No.6900/2005 challenging the same before this Court. This Court permitted the Board to draw line as per the approved plan. The question whether line was drawn as per the approved plan or not, is not to be decided in this petition. Fact is that, as is clear from AnnexureK final report, on the morning of 1.3.2009, the tower erected by the Board was found damaged and the damage was caused on the night of 28.2.2009. There is force in the submission of the learned Public Prosecutor that

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CRMC 208/06

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when it was the first petitioner who objected to the drawing of line and being the aggrieved party, he could be the person behind the damage caused to the tower. The question whether there is sufficient evidence against the first petitioner is not to be decided in this petition. In such circumstances, the case as

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against the first petitioner cannot be quashed. He is entitled to raise all the contentions before the learned Magistrate.

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As against petitioners 2 and 3, position is different. There is absolutely no allegation against them in Annexure-I complaint filed by the official of the Board on the morning of the very next day, reporting the incident. There is no allegation that, apart from the first petitioner, petitioners 2 and 3 were involved in the case. Statements of CWs 2 and 3, recorded under Section 161 of Code of Criminal

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Procedure, also do not disclose that petitioners 2 and 3 have taken any part in the incident. CW1 is the first informant and in her statement also, there is no whisper with regard to any act by petitioners 2 and 3. CW4 has only alleged that first petitioner threatened

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CRMC 208/06

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him and attempted to persuade him not to dig the pit for erecting the tower. He has also no case that petitioners 2 and 3 were connected with the incident. CWs 5 and 6 are only witnesses to the mahazar and they have also no case that petitioners 2 and 3 had participated in the incident. CWs 7 and 8 are the Investigating Officers and even if their statements are accepted, it will not connect petitioners 2 and 3 with the incident. In such circumstances, prosecution of petitioners 2 and 3 is without any basis. Even if they are to be tried, there is no chance of a successful conviction and in such circumstances, continuation of the proceedings as against petitioners 2 and 3 is only an abuse of process of the court.

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Petition is partly allowed. C.C.No.342/2005 on the file of Judicial First Class Magistrate's Court-II, Palakkad as against petitioners 2 and 3 are quashed. Learned Magistrate can proceed against the first petitioner. First petitioner is entitled to raise all the contentions raised herein before the Magistrate.

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19^th August, 2009 (M.Sasidharan Nambiar, Judge) tkv

Sumesh Babu v. State of Kerala

Case brief

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Sumesh Babu v. State of Kerala

Case brief

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