Dismissed

Fr.Marcelene.M.J v. State of Kerala

Kerala HC18 Nov 2021Crl.MC/4570/2018

Case brief

AI extract

What is this about?

The High Court dismissed the petition quashing criminal proceedings under Section 482 Cr.P.C. involving allegations against church members for trespass and threatening public servants. The Court held the pending civil dispute and limited injunction did not warrant quashing, directing dismissal while leaving contentions open for trial.

What did the court decide?

Criminal Miscellaneous Case No. 4570/2018 was dismissed though observations regarding property rights dispute were reserved for trial.

Fr.Marcelene.M.J Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2021)

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Crl.M.C.No.4570/2018

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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 ZIYAD RAHMAN A.A.

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943

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CRL.MC NO. 4570 OF 2018

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AGAINST THE ORDER/JUDGMENT IN CMA 63/2012 OF ADDITIONAL

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DISTRICT COURT KOZHIKODE- II, KOZHIKODE

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CC 135/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV,

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KOZHIKODE, KOZHIKODE

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PETITIONER/ACCUSED:

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1 FR.MARCELENE.M.J., AGED 77 YEARS, S/O. JOSEPH, FORMER PARISH PRIEST, ST.MICHAEL'S CHURCH, NOW RESIDING AT;SHALOM, NEAR NIRMALA HOSPITAL, VELLIMADUKUNNU, KOZHIKODE-673 012.

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2 SEBASTIAN P.H.ALIAS RAJAN, AGED 69 YEARS, S/O.LATE P.HAARY, RESIDING AT PUNIDATHPARAMBU, NEAR R.C.CHURCH, WEST HILL, KOZHIKODE -673 005.

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3 JESSI, AGED 59 YEARS, W/O.SEBASTIAN P.H., RESIDING AT PUNIDATHPARAMBU, NEAR R.C.CHURCH, WEST HILL, KOZHIKODE -673 005.

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4 RAJESH CHRISTY, AGED 34 YEARS, S/O.SEBASTIAN P.H., RESIDING AT PUNIDATHPARAMBU, NEAR R.C.CHURCH, WEST HILL, KOZHIKODE -673 005.

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5 ROOPA M.PAUL, D/O.MR.K.E.PAUL, AGED 47 YEARS, ASWATHI, WEST HILL, KOZHIKODE-673 005.

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6 SALIN P.SEBASTIAN,

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AGED 73 YEARS, S/O. JOSEPH SEBASTIAN, RESIDING AT POLLAYIL HOUSE, KACHERITHAZZHAM.

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Crl.M.C.No.4570/2018

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BY ADVS. SRI.P.T.MOHANKUMAR SRI.C.M.ANDREWS SMT.ANITYA ANNIE MATHEW SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH SMT.NEETHU RAVIKUMAR SRI.NABIL KHADER SMT.REVATHY P. MANOHARAN SRI.SHYAM PADMAN

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RESPONDENT/STATE & DE FACTO COMPLAINANT:

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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2 STATION HOUSE OFFICER, NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT-673 011.

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3 THE STATION COMMANDER, DEFENCE SECURITY CORPS CENTRE, WEST HILL BARRACKS, WEST HILL P.O., KOZHIKODE-673 005.

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BY ADVS. R3 BY SRI.JAYASHANKAR V NAIR, CENTRAL GOVERNMENT COUNSEL R1 AND R2 BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.M.C.No.4570/2018

O R D E R

Petitioners are accused Nos.1 to 6 in C.C.No.135 of 2016 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode, which arises from Crime No.541 of 2015 of Nadakkavu Police Station, Kozhikode. Offences alleged against them are under Sections 143, 147, 353, 447, 506(1) and 149 IPC.

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The prosecution case against them is that, on 07.06.2015 at 11 am accused Nos.2 to 6 under the leadership of the 1^st accused along with 200 unidentified persons formed themselves into an unlawful assembly and in furtherance of a common intention, trespassed into the property of Armed Force and threatened CWs 2, 3 and 4, who were discharging their duties as Government Servants and obstructed them from carrying out their official duties. It is also alleged that the 2^nd accused had placed an iron board which contained a writing as ‘church land’ in the aforesaid property.

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Crl.M.C.No.4570/2018

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The prayer sought for by the petitioners in this Crl.M.C. is to quash all further proceedings therein, as according to them no offence is made out.

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Heard Sri.P.T.Mohankumar, learned counsel for the

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petitioners and learned Central Government Counsel for the respondents.

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The learned counsel for the petitioners contends that the property in which the incident allegedly occurred is the property of a Church to which the 1^st petitioner is the Vikar. The aforesaid property was being used by the Church for years together and they have already filed a Civil Suit, which is Annexure-A1 (O.S.No.511/2012) before the Munisff’s Court-II A, Kozhikode, to establish their rights and the same is now pending consideration. It is also pointed out that, an interim injunction was also granted, as per order dated 10.12.2012 by the II^nd Additional District Court, Kozhikode in C.M.A.No.63 of 2012. In such circumstances, it is pointed out that the actions of the petitioner as alleged in Annexure-A3 final report does not make out an offence.

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Crl.M.C.No.4570/2018

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On the other hand, the learned Central Government Counsel would point out that the order of injunction granted by the Court was only for permitting the members of the Parish Council and Parishioners to offer worship and also for doing religious activities in the Church situated in the disputed property. The allegation is that the petitioners trespassed into the property and threatened the officers who were on duty in the said place by forming themselves into an unlawful assembly. According to him, this is a matter of evidence which is to be considered during the course of trial. The learned Central Government Counsel also brought my attention to the judgment dated 20.11.2011 in Crl.M.C.No.6418 of 2019, wherein similar prayers sought for by some other petitioners in connection with another offence alleged to have been committed in respect of the very same property was considered by this court. It was pointed out that, even though the gravity of allegations contained therein was lessor, this Court did not interfere and the Crl.M.C. was dismissed leaving open all the rights and remedies of the

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Crl.M.C.No.4570/2018

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petitioners therein. Accordingly, it was prayed for dismissal of Crl.M.C.

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The crucial question to be considered is whether the petitioners are able to make out any case for invoking the powers of this Court under Section 482 Cr.P.C. The allegation contained in Annexure-A4 is that they have formed themselves into an unlawful assembly and placed threats to the public servants who were on duty. It is true that, there is a dispute pending between the Church and defence authorities as to the rights over the property. A civil case is also pending before a competent Court on account of this dispute. Even though an injunction has been granted in favour of the Church to which the 1^st petitioner is a Vikar and the other petitioners are members, perusal of the said order of injunction would reveal that the same enables the parties to have only worship. However, the acts alleged to have committed as per Annexures-A3 and A4 are beyond that. Whether the said allegations are sustainable or not, is a matter to be examined during the course of trial. In such circumstances, I am of the

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Crl.M.C.No.4570/2018

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view that this is not a fit case in which the powers of this Court can be invoked under Section 482 Cr.P.C.

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Accordingly, I dismiss this Crl.M.C, by leaving open all the contentions of either parties. It is made clear that the observations and findings entered into in this order are only for the purpose of examining whether a case is made out for invoking powers of this Court under Section 482 Cr.P.C and in any circumstances, the trial court shall be at liberty to consider all the contentions put forward by petitioners, untrammeled by any of the observations contained herein.

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This Crl.M.C. is dismissed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

DG/19.11.21

Crl.M.C.No.4570/2018

APPENDIX OF CRL.MC 4570/2018

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PETITIONER ANNEXURE

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ANNEXURE -A1: TRUE COPY OF THE PLAINT DATED 14.11.2012 IN O.S.NO.511/2012 PENDING BEFORE THE MUNSIFF'S COURT-IIA, KOZHIKODE.

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ANNEXURE A2; TRUE COPY OF THE ORDER IN C.M.A.NO.63/2012 DATED 10.12.2012 OF THE IIND ADDITIONAL DISTRICT COURT, KOZHIKODE.

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ANNEXURE A3: CERTIFIED COPY OF THE FINAL REPORT DATED 19-01-2016 IN CRIME NO.541/2015 OF THE NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT. ANNEXURE A4; CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 07.06.2015 IN CRIME NO.541/2015 OF THE NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT.

Fr.Marcelene.M.J v. State of Kerala

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Fr.Marcelene.M.J v. State of Kerala

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