Allowed

Dr.C. Gangadharan Nambiar v. State of Kerala

Kerala HC16 Nov 2021Crl.MC/5299/2016

Case brief

AI extract

What is this about?

High Court of Kerala, per Justice Ziyad Rahman A.A., held that allegations of mischief and criminal trespass failed to attract specific offences due to lack of intentional damage and public access to land. The proceedings, arising from a civil dispute over road construction, were quashed as abuse of process of law.

What did the court decide?

Annexure A3 final report in CC No.2179/2015 and all further proceedings pursuant thereto were quashed.

Dr.C. Gangadharan Nambiar Vs State of Kerala — Quashing and FIR | Kerala HC (2021)

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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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TUESDAY, THE 16TH DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943

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CRL.MC NO. 5299 OF 2016

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AGAINST THE ORDER/JUDGMENT IN CC 2179/2015 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,HOSDRUG, KASARGOD

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PETITIONERS/ACCUSED 1 & 2:

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1DR.C. GANGADHARAN NAMBIAR
AGED 59 YEARS, S/O M. KRISHNAN NAIR,
PROFESSOR, DEPARTMENT OF MARINE GEOLOGY AND GEOPHYSICS
CUSAT, KOCHI-682016, RESIDING AT ANUGRAHA,
EROOR S. TRIPUNITHURA.682306.

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2SASIKUMAR A.
AGED 41 YEARS, S/O NARAYANAN NAIR, KALATHIL HOUSE,
MEENGOTH, PO, PULLUR, KASARGOD DISTRICT.

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BY ADVS.

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SRI.O.V.MANIPRASAD
SRI.JOSE ANTONY

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RESPONDENTS/STATE & DEFACTO COMPLAINANT:

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1STATE OF KERALA
(THE SUB INSPECTOR OF POLICE,
AMBALATHARA POLICE STATION, CRIME NO.58/2015)
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.

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2THE REGISTRAR
CENTRAL UNIVERSITY OF KERALA, TEJASWINI HILLS,
PERIYA POST, HOSDURG TALUK, KASARGOD DISTRICT.

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BY ADV.

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SRI.V.SAJITH KUMAR
PP- SRI. ARAVIND V. MATHEW.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 5299 OF 2016

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ORDER

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The petitioners are the accused Nos.1 and 2 in CC No.2179/2015 on the files of Judicial First Class Magistrate Court – I, Hosdurg. The aforesaid Calendar Case arises from Crime No.58/2015 of Ambalathara Police Station. The offences alleged against the petitioners are under Section 447 of Indian Penal Code and under Section 3 of Prevention of Destruction of Public Properties Act (PDPP Act). This petition is submitted by them seeking to quash Annexure A3 final report submitted in the said case and all further proceedings pursuant thereto.

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The case of the prosecution is as follows: on 10.02.2015 some identifiable persons have illegally trespassed into the property of the 2^nd respondent , the Central University of Kerala and forcibly started to dug the property in order to reduce it into their illegal possession. Then the Executive Engineer of the 2^nd respondent University and other officials requested them to stop the work and accordingly those persons have withdrawn themselves from the site. However, on 11.02.2015 at about 9 a.m. the accused have wrongfully trespassed into the property with JCB bearing Registration No.KL 60-D-6014 and as per the directions of the petitioners herein, they dug out a portion of the property of the 2^nd

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CRL.MC NO. 5299 OF 2016

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respondent University lying adjacent to the compound wall at a length of 150 m. and at a width of 6 m. It was alleged that on account of such illegal acts of the petitioners, the 2^nd respondent University has sustained a loss of Rs.22,67,100/- (Rupees twenty two lakh sixty seven thousand and

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one hundred only) and accordingly, the offences were charged against the petitioners.

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Heard Sri.O.V.Maniprasad, learned counsel for the petitioners

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and Sri.Aravind Mathew, learned Public Prosecutor. The specific case of the learned counsel for the petitioners is that, no offences as alleged are made out even if the entire allegations contained in Annexure A3 final report are accepted in its entirety, for its face value. The dispute between

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the parties is civil in nature, and the University has already filed O.S.No.6/2016 before the Sub Court, Hosdurg seeking damages for the loss allegedly caused. It was further pointed out by the learned counsel by specifically referring to the contents of Annexure A1 complaint which formed the basis of registration of the crime that, even according to the 2^nd respondent, the property wherein the act of digging was allegedly committed by the petitioners was maintained by the 2^nd respondent University outside the western boundary of their property to be used as a

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CRL.MC NO. 5299 OF 2016

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road. Since it was intended to be used as a road, the petitioners who were the beneficiaries of the said road were only carrying out certain works so as to make the said road motorable to the general public. The aforesaid acts were never intended to cause any mischief to the property and therefore, the offence under Section 3 is not attracted. Similarly, it was also contended that, as the disputed property was left outside the compound wall of the University to be used as a road, and was accessible to all members of the public, the offences under Section 447 also would not be attracted. In such circumstances, the learned counsel for the petitioners seeks for invocation of powers of this Court under Section 482 of Cr.P.C. as according to him the entire proceedings pursuant to Annexure A3 is an abuse of process of law.

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Per contra, learned Public Prosecutor seriously opposes the

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said prayer and contends that there are sufficient allegations contained in Annexure A3 for constituting the offences alleged. In such circumstances, the learned Public Prosecutor prays for dismissal of this Crl.M.C. as according to him the contentions put forward by the petitioners are essentially a matter of evidence which cannot be adjudicated in the proceedings of this nature.

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CRL.MC NO. 5299 OF 2016

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The only point that arises for consideration is whether the

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offences alleged against the petitioners are made out on going through the averments contained in Annexure A3 and the materials places in support of the same. As pointed out by the learned counsel for the petitioners, the

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criminal proceedings were set into motion on the basis of a complaint submitted by the 2^nd respondent on 11.02.2015, the same reads as follows:

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“The Central University of Kerala (A Government of India Institution) has its main campus situated at Periya, Kasaragod. The Central University has got in absolute possession, title, right, and enjoyment of the same. Nobody else has got any right over the said land. The Western boundary of the Campus is situated in R.S No. l/pt of Pullur Village. The Central University is constructing a laterite compound wall throughout its boundary. The compound wall is being constructed on the Western boundary by leaving 6 metres gap from its property. The said 6 metres is kept in order to use as a road. The said land is also belonged to the Central University of Kerala.

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On 10-02-2015 some identifiable person have illegally trespassed into the property of the Central University and forcefully started to drag the property in to their illegal possession. The Executive Engineer of the Central University Sri. K. G Rajagopal and some other officials requested them to stop the work, though they have temporarily withdrawn from the site. But today i e on 11-02-2015 at about 9.00 A M, the accused have wrongfully trespassed into the property with JCBs bearing Reg No. KL 60 D 6014 and a private party (name and details are not available) is now deeply dugout about 2 to 3 metres of this portion which will cause danger to the compound wall. A small portion of the University land is also seen encroached and deeply dugout using JCB. The total estimated loss occurred to University as 15 lakhs.”

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From a careful scrutiny of the aforesaid complaint, it can be

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seen that even according to the 2^nd respondent University, the disputed

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portion was kept by them outside the compound wall of the property of the University to be used as a road. Even though in the aforesaid complaint it was alleged that a portion of the property of the University was trespassed into, no such allegation is seen made in Annexure A3 final report. The sum and substance of Annexure A3 is that a portion of the property lying adjacent to the compound wall having an extent of 150 mtrs. in length and 6 mtrs. in breadth have been dugged up by the petitioners for the purpose of construction of a road and thereby committed the loss of Rs.22,67,100/- (Rupees twenty two lakh sixty seven thousand and one hundred only).

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From the aforesaid allegations itself it is evident that the motive attributed to the petitioners for commission of the alleged crime is

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construction of a road. Section 3 of Prevention of Damage to Public Properties Act, 1984 (PDPP Act) reads as follows:

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“ 3. Mischief causing damage to public property.— (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.

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(2) Whoever commits mischief by doing any act in respect of any public property being—

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(a) any building, installation or other property used in

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connection with the production, distribution or supply of water, light, power or energy;

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(b) any oil installations;

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(c) any sewage works;

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(d) any mine or factory;

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(e)any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith,

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shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years, and with fine:

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Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.”

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In Section 2(a) of PDPP Act it is specified that the expression ‘mischief’

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shall have the same meaning as in Section 425 of Indian Penal Code.

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Section 425 of Indian Penal Code reads as follows:

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“425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.

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Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

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Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.”

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From the joint reading of the aforesaid provisions, it can be seen that, in

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order to attract the offence under section 3 of PDPP Act, the accused must

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have, with the intent to cause or knowing that he is likely to cause any wrongful loss or damage to public or to any person, caused destruction to any property or any change in any property or in any situation thereof as destroys or diminishes its value or utility or affects it injuriously. In this case, even going by the allegations contained in Annexure A3, it cannot be concluded that the intention of the petitioners was to cause any destruction to any property or to cause any change in the property which destroys or diminishes its value or utility. Even as per the complaint submitted by the 2^nd respondent, the disputed portion of the property was set apart for being used as a road and the specific allegation contained in Annexure A3 final report is that the attempt made by the petitioners was to construct a road through the said property. In such circumstances, it cannot be found that there was any intention on the part of the petitioners to cause any damage or destruction to any property or to cause any change in the property which destroys or diminishes its value. On the other hand, the acts allegedly committed by the petitioners were intended to increase the utility of a portion of land by constructing a road through the property which was admittedly set apart for being used as a road. In such circumstances, it cannot be concluded that the actions on the part of the

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petitioners as alleged in Annexure A3 final report would attract the offence under Section 3 of PDPP Act.

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It is true that an assessment of damage is seen to have been made in Annexure A3 final report and the aforesaid estimate is for an amount of Rs.22,67,100/- (Rupees twenty two lakh sixty seven thousand and one hundred only). However, that by itself would not attract the aforesaid offence particularly because as mentioned above even going by the allegations contained in Annexure A3 the intention to commit wrongful loss or damage to the property is lacking. It is also to be noted in this regard that the 2^nd respondent has already filed a civil suit seeking damages for the same wherein an Advocate Commissioner was appointed. Annexure A7 is the aforesaid Commission Report. In paragraph 12 of the aforesaid report, it is specifically pointed out that the Commissioner could not notice any damages sustained as such to the compound walls in the disputed area except the possibility of the collapse of the same in future or in near future. Even though there was allegation that a portion of the compound wall was collapsed, as per Annexure A7 report the portion of compound wall which was found collapsed was not related to the disputed area. It is evident that, the actual loss alleged to have suffered by the 2^nd

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respondent is also seriously disputed. As It is an admitted case that the actions committed by the petitioners were for the purpose of constructing a road through the property which was set apart for being used as a road, as it is the specific allegation in the final report. It is evident from the materials available on record that the petitioners were prevented from completing the work of the road consequent to the complaint submitted by the 2^nd respondent. In such circumstances, from the consideration of the contents of Annexure A3 coupled with the report made by the Advocate Commissioner as per Annexure A7, it is evident that as of now no damage was caused to the 2^nd respondent and consequence of the acts is that is a possibility of collapse of compound wall in future or near future. This would mean that, as of now there is no wrongful loss or damage caused to the property and what the Annexure A7 report refers to only the possible damages which may or may not occur in a near future. Section 3 of PDPP Act read with Section 425 does not take in any anticipated damages. Merely because of the reason that there is possibility of such damages in near future consequent to the actions which is the subject matter of the case, the aforesaid offences would not get attracted. In order to attract the same it should be shown that a damage has indeed

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occurred and the same was consequent to some acts of the accused, who

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committed with an intention to cause the loss or change the nature of the property in such a manner as to diminish its value . In this case I have no hesitation to hold that the actions of the petitioners were never with an intention to cause any wrongful loss or damage or destruction, and no actual damage or loss has occurred nor with the knowledge that any damage was likely to cause. In such circumstances, Section 3 of PDPP Act is not attracted.

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What is remaining is the offences under Section 447 of IPC.

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Section 447 deals with criminal trespass which is defined under Section 441. Section 441 reads as follows:

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441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

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or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

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As per the said provision, in order to attract the said offence, accused

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person must have entered into the property in the possession of another,

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with the intention to commit an offence or to intimidate insult or annoy

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any person in possession of such property. In this case even though it was

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claimed that the disputed property was belonged to the 2^nd respondent University, even according to the averments made in Annexure 1 complaint the aforesaid portion of property was set apart for a road. The measurement specified in Annexure A1 is clearly tallying with measurements mentioned in Annexure 3 as well. Similarly, in Annexure A1 complaint, the 2^nd respondent also does not have a case that the property which was set apart for road was intended to be used exclusively by the University. In such circumstances, it can be safely concluded that it was accessible to general public. It is also to be noted that even according to the 2^nd respondent the said property was lying outside the western boundary wall of the 2^nd respondent University. In such circumstances, as the disputed property was accessible to general public, entry of the petitioners into the said property would not attract the offence of Section 447 . Further, on going through the allegations in Annexure A3 final report, the entry of the petitioners was to construct a road and it is evident from Annexure A1 complaint that the portion of property where the alleged acts were committed by the petitioners, was set apart by the 2^nd respondent to be used as a road. I have already found that, no offence under section 3 of PDPP Act is also attracted. In order attract the offence

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under section 447, the entry of the accused must amount to criminal trespass. As per section 441 of IPC, in order to attract criminal trespass, such entry must be with an intention to commit an offence, or to intimidate, insult or annoy any person in possession of such property. As already observed above, even according to the contents of Annexure A3 final report, the petitioners were attempting to construct a road, through the property, which was set apart for being used as a road. Therefore, it cannot be treated as an entry with an intention to commit an offence, or to intimidate, insult or annoy the person in possession of the property. Hence no offence under section 447 of IPC is also attracted.

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In such circumstances, I am of the view that, none of the offences alleged against the petitioners would get attracted even if the contents of Annexure A3 final report are accepted in its entirety, for its face value. If at all there is any dispute between the parties, that can only be a dispute of civil nature. The rights and liabilities of the parties have to be decided before a competent civil court and merely because of the existence of dispute with civil nature, no culpability can be attributed to the petitioners. It is also discernible from the records that the 1^st petitioner is a retired Professor, and the 2^nd petitioner is also a Government servant.

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None of the petitioners have any criminal antecedents and evidently the criminal proceedings initiated against them which are civil in nature, is a clear abuse of process of law. If the said proceedings were allowed to be continued against them, it would result in undue harassment to the petitioners.

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In such circumstances, I am of the view that this is a fit case in which proceedings under Section 482 of Cr.P.C. is to be invoked and accordingly I quash Annexure A3 final report in C.C.No.2179/2015 on the file of Judicial First Class Magistrate Court – I, Hosdurg which arises from Crime No.58/2015 of Ambalathara Police Station, and all further proceedings pursuant thereto.

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The Crl. MC is thus allowed with the above observations, findings and directions.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

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scs

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CRL.MC NO. 5299 OF 2016

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APPENDIX OF CRL.MC 5299/2016

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`PETITIONE`	`R ANNE`	`XURE`
`ANNEXURE`	`A1`	`A TRUE COPY OF THE` `IN CRIME NO.58 OF` `POLICE STATION.`	`FIR AND FI STATEMENT` `2015 OF AMBALATHARA`
`ANNEXURE`	`A2`	`A TRUE COPY OF THE` `NO.4350/2012 OF HO` `17.12.2012.`	`ASSIGNMENT DEED` `SDURG SRO DATED`
`ANNEXURE`	`A3`	`A TRUE COPY OF THE` `30.7.2015 IN CIRME` `AMBALATHARA POLICE`	`FINAL REPORT DATED` `NO. 58/2015 OF` `STATION.`
`ANNEXURE`	`A4`	`A TRUE COPY OF THE` `DATED 11.3.2016 IS` `DEPARTMENT, DEPART` `AND GEOPHYSICS, CO` `SCIENCE AND TECHNO` `COCHIN.`	`ATTENDANCE CERTIFICATE` `SUED BY THE HEAD OF` `MENT OF MARINE GEOLOGY` `CHIN UNIVERSITY OF` `LOGY AT ERNAKULAM,`
`ANNEXURE`	`A5`	`A TRUE COPY OF THE` `DATED 10.3.2016 IS` `SWAMI NITHYANANDA` `KANHANGAD.`	`ATTENDANCE CERTIFICATE` `SUED BY THE PRINCIPAL,` `POLYTECHNIC COLLEGE`
`ANNEXURE`	`A6`	`A TRUE COPY OF THE` `09.02.2016 IN O.S.` `SUBORDINATE JUDGE’`	`PLAINT DATED` `NO.6/2016 BEFORE THE` `S COURT, HOSDURG`
`ANNEXURE`	`A7`	`A TRUE COPY OF THE` `08.02.2020 FILED B` `COMMISSIONER IN O.` `SUBORDINATE JUDGE’`	`REPORT DATED ON` `Y THE ADVOCATE` `S.NO.6/2016 BEFORE THE` `S COURT, HOSDURG.`

Dr.C. Gangadharan Nambiar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.C. Gangadharan Nambiar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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