Allowed

Chacko Varghese v. State of Kerala

Kerala HC14 Feb 2020Crl.MC/4624/2014

Case brief

AI extract

What is this about?

In Crl.MC. No.4624 of 2014, the High Court of Kerala quashed proceedings under Section 107 CrPC for keeping peace. The court held that since a civil suit regarding the same property was pending, invoking preventive measures under Section 107 was without factual basis and the remedy lies in the civil court.

What did the court decide?

All further proceedings pursuant to Annexure A10, pending before the learned Sub Divisional Magistrate, Alappuzha stand quashed.

Chacko Varghese Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2020)

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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 N.ANIL KUMAR

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FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941

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Crl.MC.No.4624 OF 2014

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AGAINST THE ORDER/JUDGMENT IN MC 116/2014 OF SUB DIVISIONAL MAGISTRATE, ALAPPUZHA

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PETITIONER/ACCUSED:

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CHACKO VARGHESE AGED 53 YEARS S/O.KOSHY,PUTHOORAM VEETTIL, WARD II, KAVALAM PANCHAYATH, KAVALAM P O-688506

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BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA

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RESPONDENTS/COMPLAINANTS:

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1 STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031

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2 SUB DIVISIONAL MAGISTRATE ALAPPUZHA-688 001

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BY ADV.

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MR.SUMODU P.N PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.4624 OF 2014

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O R D E R

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Dated this the 14th day of February 2020

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This Criminal Miscellaneous Case is filed seeking to quash all further proceedings pursuant to Anneuxre A10 order of the learned Sub Divisional Magistrate, Alappuzha under Section 111 of the Code of Criminal Procedure, 1973.

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The Sub Inspector of Police, Pulinkunnu Police Station reported that the petitioner has been indulging in criminal activities frequently, causing threat to the public tranquility and peaceful life of the residents of Ward 11 of Kavalam Panchayath. Pursuant to the report, it has come to the notice of the learned Sub Divisional Magistrate that Crime Nos.763/2013, 770/2013 and 993/2013 have been registered

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against the petitioner, under various Sections of the Indian Penal Code, Protection of Children from Sexual Offences Act, 2012 and Juvenile Justice Act, 2000, for assaulting one Udayan,

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Kochupurackal house, East Kunnumma for sexual abuse on Athira Udayan, daughter of afore said Udayan and also for trespassing into the house of Swapna Udayan, wife of the said Udayan and uttering obscene words on her respectively. Based

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Crl.MC.No.4624 OF 2014

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on the above materials, the learned Magistrate is satisfied that the petitioner is likely to cause breach of peace and public tranquility in Ward 11 of Kavalam Panchayath, as the petitioner is seen repeatedly assaulting innocent individuals causing threat to public tranquility. Accordingly, the notice has been issued to appear before the learned Magistrate at 11.00 am on 13.8.2014 requiring him to show cause as to why he should not be required to execute a bond for keeping peace for one year on the strength of two personal sureties worth Rs.25,000/each. Annexure A10 order passed by the learned Magistrate is under challenge in this proceedings.

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Heard Sri.S.Sanal Kumar the learned counsel for the petitioner as also Sri.Sumodu P.N the learned Public Prosecutor.

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Annexure A2 plaint in OS.No.394 of 2013 discloses that Udayappan referred to in Annexure A10 proceeding is the 3^rd defendant in a suit for permanent injunction, restraining him and others from trespassing into the property owned by the petitioner and constructing any road therein. The learned Additional Munsiff by Annexure A3 order dated 30.7.2013 passed an order of status quo in the said case. Alleging that after the issuance of the afore order, Udayappan assaulted the

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Crl.MC.No.4624 OF 2014

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petitioner. Annexure A4 complaint was filed before the District Police Chief Alappuzha and pursuant which Annexure A5 FIR was registered against the afore said Udayappan. The said crime was registered on 3.10.2013.

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The learned counsel for the petitioner contends that subsequent to the registration of Annexure A5 FIR, Annexure A6 crime was registered against the petitioner at the instance of afore said Udayappan alleging that the petitioner attempted to molest his daughter which is punishable under Sections 7, 9(l) (m), Section 10 of the Protection of Children from Sexual Offences Act, 2012, Section 23 of the Juvenile Justice Act, 2000 and 506(2) of Indian Penal Code. The petitioner moved an anticipatory bail application before this Court and accordingly, bail was granted by Annexure A7 order. The learned counsel for the petitioner further contends that the registration of crimes at the instance of Udayappan is as a result of civil disputes between the parties.

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Annexure A2 suit was filed before the Munsiff Court Alappuzha on 15.6.2013. The learned Munsiff passed an order of status quo by Annexure A3 on 30.7.2013. On going through Annexures A2 and A3, it is clear that on the date of passing Annexure A10, civil dispute has been pending between the

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Crl.MC.No.4624 OF 2014

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parties. Under the circumstances, the information received by the learned Magistrate that the petitioner is likely to commit breach of peace or disturbance of public tranquility as provided under Section 107 of the Criminal Procedure Code is without any factual or legal basis. The preliminary order issued by the learned Magistrate is not in accordance with the scheme of the Code of Criminal Procedure. The nature of proceedings under Section 107 is of preventive in nature. In a case where civil dispute has been pending between the parties on the date of initiation of Section 107 proceedings, the remedy available before the aggrieved is to seek his rights adjudicated in the civil court in accordance with law. Merely because three crimes have been registered against the petitioner, the same itself is not a ground to proceed under Section 107 of the Code of Criminal Procedure in view of the civil lis between the petitioner and Udayappan referred to in Annexure A10 proceedings. The fact that the crime No.763/2013 which infact was registered at the instance of the petitioner has been shown as a crime registered against the petitioner in the impugned order itself indicates non application on the part of the learned Magistrate. It appears that the prosecution initiated against the petitioner and the proceedings under Section 107 are at the instance of the person

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Crl.MC.No.4624 OF 2014

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referred to in Annexure A2.

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In the result, the Crl.M.C is allowed. All further proceedings pursuant to Annexure A10, pending before the learned Sub Divisional Magistrate, Alappuzha stand quashed.

Sd/-

N.ANIL KUMAR

JUDGE

ska

Crl.MC.No.4624 OF 2014

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	ANNEXURE A1:-TRUE COPY OF THE FIR IN CRIME NO 519/2011 OF PULINKUNNU POLICE STATION
ANNEXURE A2	ANNEXURE A2:-TRUE COPY OF THE OS NO 394/2013 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, ALAPPUZHA
ANNEXURE A3	ANNEXURE A3:-TRUE COPY OF THE ORDER IN IA NO 1978/2013 IN OS NO 394/2013 OF THE ADDITIONAL MUNSIFF COURT, ALAPPUZHA, DTD 30/7/2013
ANNEXURE A4	ANNEXURE A4:-TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF DTD 1/10/2013
ANNEXURE A5	ANNEXURE A5:-TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 763/2013 DTD 3/10/2013
ANNEXURE A6	ANNEXURE A6:-TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 770/2013 DTD 5/10/2013
ANNEXURE A7	ANNEXURE A7:-TRUE COPY OF THE ORDER IN BA NO 7444/2013 DTD 11/11/2013 OF HON'BLE COURT
ANNEXURE A8	ANNEXURE A8:-TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO 993/2013 DTD 30/11/2013
ANNEXURE A9	ANNEXURE A9:-TRUE COPY OF THE ORDER DTD 23/12/2013 OF THE HUMAN RIGHTS COMMISSION
ANNEXURE A10	ANNEXURE A10:-TRUE COPY OF THE NOTICE ISSUED BY THE SUB DIVISION MAGISTRATE, ALAPPUZHA DTD 3/7/2014
ANNEXURE A11	ANNEXURE A11:-TRUE COPY OF THE DISABIBLITY CERTIFICATE ISSUED BY MEDICIAL COLLEGE HOSPITAL ,ALAPPUZHA, DTD 31/10/2007

Chacko Varghese v. State of Kerala

Case brief

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Chacko Varghese v. State of Kerala

Case brief

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