Allowed

Hidayathulla v. State of Kerala

Kerala HC16 Dec 2019Bail Appl./7899/2019

Case brief

AI extract

What is this about?

This bail application concerning apprehended arrest for trespass and property damage was allowed. The High Court granted bail subject to strict conditions, including a bond, an interim deposit to mitigate financial loss, and a prohibition on entering the disputed property until a civil suit concludes.

What did the court decide?

Bail granted with a bond of Rs. 50,000 each and an interim deposit of Rs. 5,89,472 to mitigate loss, subject to conditions prohibiting entry into the property and cooperation with investigation.

Hidayathulla Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941

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Bail Appl..No.7899 OF 2019

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Crime NO.1883/2019 OF Medical College Police Station, Thiruvananthapuram

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PETITIONERS:

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1 HIDAYATHULLA AGED 49 YEARS S/O MOHAMMED IQUBAL,PERMANENT RESIDENT OF ARIFJAN,MANTHARA,EDAVA,THIRUVANANTHAPURAM695311,PRESENTLY WORKING IN KUWAIT DRILLING COMPANY,PRESENTLY RESIDING AT FAHAHEEL, POST BOX NO.47677,KUWAIT.

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2 SHAJI.M, AGED 41 YEARS S/O.MOHAMMED ABDUL KHADER,PERMANENT RESIDENT OF KIZHAKKEVILA,PRESS MUKKU, EDAVA,THIRUVANANTHAPURAM-695311, PRESENTLY WORKING IN KUWAIT DRILL POST BOX NO.47677,KUWAIT.

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BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN

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RESPONDENT/STATE:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.

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SRI RAMESH CHAND, PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

B.A.No.7899/2019

ORDER

This application is filed under Section 438 of the Code of Criminal Procedure.

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On 22.7.2019, Crime No.1883 of 219 of the Medical College Police Station was registered at the instance of the Assistant Engineer, Sewerage Section, Kerala Water Authority (“KWA” for short) against certain unknown persons under Section 447 read with Section 34 of the IPC and under Section 3 of the Prevention of Damage to Public Property Act, 1984. In the complaint it is alleged that certain unidentified persons trespassed into the property possessed by the Kerala Water Authority where the Subsection office was functioning and demolished a portion of the building situated in the said property. It is also alleged that they brought down certain trees causing loss to the KWA and the State Exchequer. In the course of investigation, a friend and relative of the 1^st applicant is alleged to have stated that it is at the instance of the 1^st applicant herein that workers entered the premises and cleaned up the area in the course of which, a building situated therein was brought down. Based on the above information, the applicants herein were roped in as accused.

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Sri.C.Harikumar, the learned counsel for the applicants, submitted that the applicants herein are near residents and according to the

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B.A.No.7899/2019

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learned counsel, the property which is the subject matter of the dispute, having an extent of about 34 cents, originally belonged to late Abdul Rahuman Kunju. The said property was assigned to the 1^st applicant by the legal heirs of Abdul Rahman. The 2^nd applicant is a near relative and friend of the 1^st applicant. They were roped in as an accused at a much later stage based on the statement given by Sri. Naseer. According to the learned counsel, the applicant has already approached the learned Munsiff, Thiruvananthapuram and had filed O.S.No.1326 of 2019 arraying the Kerala Water Authority and its Executive Engineer as defendants and has sought for a declaration of the 1^st applicant's right over the very same property and to injunct Kerala Water Authority and its officers from interfering with his possession. According to the learned counsel, the property was lying in an abandoned state and the building which was situated therein was an old and run down building. Much reliance is placed on the report of the Commissioner Advocate who had visited the spot in terms of the orders issued by the learned Munsiff to advance his contention.

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The learned Public Prosecutor has strenuously opposed the prayer. It is submitted that there were numerous litigation in respect of the property in question and this Court in F.A.O.No.140 of 2010 had occasion to observe that the building situated in the said property was constructed either by the Water Authority or by its predecessor Department and that

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B.A.No.7899/2019

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they have been in possession of the said property. According to the learned Public Prosecutor, the applicants herein had no authority to trespass into the property possessed by the KWA and in demolishing the building.

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I have considered the submissions and have perused the entire case diary. When the F.I.R was registered, the names and other details of the accused were not available. It appears that in the course of investigation, a person by name Naseer, who happens to be a close friend and relative of the applicant, was questioned and he had divulged to the Police that the applicants are the persons who had employed workers to clear out the property. From the statement of the Assistant Engineer, KWA, which is seen recorded by the investigating officer, it appears that in the year 2012, an application was filed by the KWA before the revenue authorities to measure out the 34 cents of property and to effect mutation. He also requested the authorities to remove encroachments. However, no action was taken. Later, on 16.8.2018, the water authority filed a reminder before the Tahsildar Thiruvananthapuram. Even then, no steps were taken. It was on 22.7.2019 that information was received about the trespass and demolition of the building. From the statements of the witnesses, it does not appear that the subsection office was actually functioning there. The revenue records reveal that the property is still in the name of the predecessors of the 1^st applicant.

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B.A.No.7899/2019

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From the entire records, the conclusion is inescapable that the property is still under the possession of the Kerala Water Authority. From Annexure-A6 report of the Commissioner Advocate appointed by the learned Munsiff in O.S.No.1326 of 2019, it appears that a very old building was situated in the said property and remnants of the same only are available there at the moment. It also appears that though the Investigating officer had issued repeated communications to the revenue authorities to assess the loss, the same was being delayed for one reason or the other. It now appears that the Assistant Executive Engineer, PWD, Buildings subdivision, inspected the property on 13.11.2019 and found that the building having an area of about 536 sq.ft was brought down. The age of the building has been assessed at 30 years and it has been tentatively valued at Rs. 5,89,472/-.

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In view of the peculiar fact scenario, the dispute with regard to title over the property, the materials based on which the applicants were arrayed as an accused, and also the pendency of the civil suit, I am of the view that the custodial interrogation of the applicants are not necessary in

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the instant case. However, the fact remains that by the acts of the applicants herein, loss to the tune of Rs.5,89,472/- has been caused. The learned counsel has undertaken to deposit the said amount before the Court having jurisdiction so that the same can be used to mitigate the loss, if any, sustained to the KWA. Necessary directions can therefore be issued to the

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B.A.No.7899/2019

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applicants to deposit the said amount before the learned Magistrate. Till the civil court decides the disputes one way or the other, the applicants shall not enter the property and cause any mischief.

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In the result, this application will stand allowed. The applicants shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

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i) The applicants shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till final report is filed, whichever is earlier.

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ii) The 1^st applicant shall deposit a total sum of Rs 5,89,472/before the learned magistrate having jurisdiction within a period of three weeks from today. If after trial, 1^st applicant is acquitted of all charges, the amount shall be refunded or else the amount will be at the disposal of the court trying the case for payment of compensation and for mitigation of damages.

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iii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer.

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iv) They shall not commit any similar offence while on bail.

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In case of violation of any of the above conditions, the jurisdictional

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Court shall be empowered to consider the application for cancellation, if any,

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B.A.No.7899/2019

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and pass appropriate orders in accordance with the law.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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csl

Hidayathulla v. State of Kerala

Case brief

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Hidayathulla v. State of Kerala

Case brief

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