The Court held that the dispute over puramboke land involving the demolishing of a gate is a civil matter. The Overseer, acting under the Municipal Secretary's orders, cannot be held criminally liable, and the Magistrate mechanically took cognizance.
Criminal Misc. Case is allowed by quashing the complaint and its further proceedings.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
Crl.MC.No.4053 OF 2016
AGAINST THE ORDER/JUDGMENT IN CC 1390/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PARAVOOR
PETITIONER/ACCUSED:
RAJAN.G, AGED 47 YEARS,S/O D.GOPINATHAN, OVERSEER, SOUTH PARAVUR MUNICIPALITY, SOUTH PARAVUR P.O. SOUTH PARAVUR, KOLLAM
BY ADVS. SRI.AYYAPPAN SANKAR SMT.S.HRIDYA SRI.JAYAN JOHN SHRI.V.VENUGOPALAN NAIR, SC, PARAVUR MUNICIPALITY
RESPONDENT/STATE & DE-FACTO COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031
2 PRAKASH, AGED 59 YEARS,S/O SADASIVAN, KULATHIL PUTHENVEEDU, KURUMANDEL, SOUTH PARAVUR P.O., SOUTH PARAVUR, KOLLAM-691013
R1-2 BY ADV. SRI.B.MOHANLAL
PUBLIC PROSECUTOR: SRI. K.B. UDAYAKUMAR.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4053 OF 2016 2
ORDER
As per the order No.G1/12451/I dated 05.06.2014
of the Municipal Secretary attached to the Municipality, South Paravur, the Overseer attached with the Municipality demolished a gate installed in the Puramboke land vested with the Municipality. Earlier the question came up before the Ombudsman and Ombudsman passed an order Annexure-I and subsequently Annexure - II order was also issued, directing the Secretary to take the assistance of Tahsildar to locate the property and to ascertain whether the gate was installed within the Puramboke land. The dispute pertaining to disputed boundary or encroachment over the puramboke land vested with the Municipality would be a civil dispute to be addressed and adjudicated as per the provisions of the existing laws. But the Overseer always would stand bound by
Crl.MC.No.4053 OF 2016 3
the orders of the Municipal Secretary, unless the order per se found to be illegal. Exercise of statutory duty vested with the Overseer when acted under the orders of the Secretary of the Municipality cannot be challenged by fastening criminal liability, either under Section 447 IPC or 379 IPC. It is so unfortunate that the
learned Magistrate had not applied his mind while taking cognizance for the offence under Section 379 IPC, a serious offence of theft,
but took cognizance mechanically and that has resulted in miscarriage of justice.
pre-cognizance stage under Section 202 Cr.P.C.
But the canvass available under Section 482
Cr.P. C. is so wide enough to interfere with the order of taking cognizance, when it would fall under the ground in which Section 482 Cr.P.C. can be invoked, for which whether it is
at the instance of accused pales into
Crl.MC.No.4053 OF 2016 4
insignificance.
Crl.M.C. is allowed by quashing the
complaint and its further proceedings.
Sd/-
P.SOMARAJAN
JUDGE
msp
Crl.MC.No.4053 OF 2016 5
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE PHOTOCOPY OF THE ORDER DATED 10.04.2012 OF HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN OP NO.1503/2011 ANNEXURE II TRUE PHOTOCOPY OF THE ORDER DATED 04.10.2012 OF HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN CMP NO.239/2012 IN O.P NO.1503/2011 ANNEXURE III TRUE PHOTOCOPY OF THE PLAINT IN O.S NO.235/2014 FILED BY THE 2ND RESPONDENT IN THE MUNSIFF'S COURT, SOUTH PARAVUR ANNEXURE IV CERTIFIED TURUE COPY OF THE PRIVATE COMPLAINT IN C.C.NO.1390/2014 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SOUTH PARAVUR ANNEXURE V TRUE PHTOCOPY OF THE SUMMONS ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, SOUTH PARAVUR IN C.C. NO. 1390/2014
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
2 issues framed by the court
Whether an Overseer attached to a Municipality can be held criminally liable for demolishing a gate when acting under orders of the Sectionary.
Whether the order of the Judicial Magistrate taking cognizance was arbitrary and resulted in miscarriage of justice.
3 provisions across 2 enactments
Rajan.G
State of Kerala
Prakash
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
