Allowed

Nazar v. State of Kerala

Kerala HC9 Nov 2022Crl.MC/206/2013

Case brief

AI extract

What is this about?

The High Court allowed a criminal miscellaneous petition and quashed criminal proceedings C.C.No.523/2008 involving allegations of demolition of a compound wall. The court held that the dispute was inherently civil in nature due to a pending civil suit, allegations were improbable, and the proceedings abused the criminal process.

What did the court decide?

Criminal proceedings in C.C.No.523/2008 were quashed as they constituted an abuse of the court's process.

Nazar Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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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 BECHU KURIAN THOMAS WEDNESDAY, THE 9^TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944

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CRL.MC NO. 206 OF 2013

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AGAINST THE ORDER/JUDGMENTCC 523/2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM

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[C.CNO.523/2008 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM]

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PETITIONERS/ACCUSED :

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1 NAZAR S/O.PEER MOHAMMED, TC 23/220, ALFIA MANZIL, MAHARAJA GARDENS, GOLF LINKS LINE, KOWDIAR, THIRUVANANTHAPURAM. 2 SHAKEER MOIDEEN AGED 46 YEARS S/O.NOOR MOHAMMED, DOOR NO.26, VEERAVA NAGAR, AMBA SAMUDRAM VILLAGE, THIRUNALVELI DISTRICT, TAMILNADU. 3 SIKANDER AGED 48 YEARS S/O.PEER MOHAMMED, TC 23/220, ALFIA MANZIL, MAHARAJA GARDENS, GOLF LINKS LINE, KOWDIAR, THIRUVANANTHAPURAM. 4 MUFEESH AGED 24 YEARS S/O.MUSTAFFA, ARIJA MANZIL, POTTAVILA, POTTAVILA DESOM, NEMOM WARD & VILLAGE, THIRUVANANTHAPURAM.

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CRL.MC NO. 206 OF 2013

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5 SUDHIR AGED 33 YEARS S/O.IBRAHIM KUTTY, FIRDAS MANZIL, TC 35/799, PUTHENPALAM, VALLAKKADAVU, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENTS/STATE :

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1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.92/2008 OF VANJIYOOR POLICE STATION, THIRUVANANTHAPURAM DISTRICT).

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2 ADDL.R2 IMPLEADED RAJA S/O KRISHNAN, RAMESH BHAVEN, TC NO.25/54, NEAR GANDHARI AMMAN KOVIL, THAMBANNUR WARD, THYKKAD VILLAGE, THIRUVANATHAPURAM 695 001. IS IMPLEADED AS ADDL. SECOND RESPONDENT AS PER ORDER DT:17.01.2013 IN CRL.M.A NO.670/2013 IN CRL.M.C.NO.206/2013.

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BY ADV SRI.M.DINESH PP SRI.NOUSHAD K.A

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 206 OF 2013

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BECHU KURIAN THOMAS, J

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......…..................................

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CRL.M.C.No.206 of 2013

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….................................. Dated this the 9th day of November, 2022

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ORDER

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Petitioners are accused Nos.1 to 5 in C.C.No.523/2008 on

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the files of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The offences alleged against the petitioners are punishable under Sections 143,147, 447, 427, 506(i), r/w Section 149 of the Indian Penal Code, 1860.

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The prosecution alleges that, on 17.03.2008, the accused, after forming themselves into an unlawful assembly, demolished a compound wall situated on the northern side of the shop of the defacto complainant, causing a loss of Rs.1,500/- to him and the accused thereby committed the offences alleged.

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The learned counsel for the petitioners contended that a

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civil suit as O.S.No.1663/2007 was pending between the parties wherein a relief of prohibitory injunction restraining the defendants therein (includes the defacto

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CRL.MC NO. 206 OF 2013

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complainant also) was sought for. The learned counsel further submitted that the crime was registered only for the purpose of compelling the petitioners to settle the aforenoted civil suit and to coerce them into such a settlement.

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The learned counsel for the 2 nd respondent on the other hand submitted that, even though the defacto complainant had sold the property, the criminal proceedings ought not to be quashed; as evidence will have to be appreciated which can be done only after trial.

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The learned Public Prosecutor also supported the contentions of the learned counsel for the 2 nd respondent and submitted that this is a case, which requires appreciation of evidence.

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The issue relates to a compound wall, which separates the property of the petitioners from the 2 nd respondent. The defacto complainant alleges that the compound wall was demolished on 17.03.2008. Apparently civil suit was pending between the parties in respect of the same compound wall and the property when the offence is

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CRL.MC NO. 206 OF 2013

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alleged to have been committed. The wife of the first petitioner had even preferred a complaint before the Corporation alleging unauthorised construction.

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Taking note of the civil dispute that was pending between the parties, I am of the view that the allegations against the petitioner in the final report does not strictly make out a case for the offences alleged. The crime is primarily a civil dispute covered under the cloak of a criminal case and there is no possibility of the allegations leading to a conviction.

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In the decision in State of Haryana & Ors. v. Bhajanlal &

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Ors. [1992 Suppl. (1) SCC 335] it has been held that when the allegations are inherently improbable and there is no possibility of the trial ending up in a conviction, there is no purpose in proceeding with the criminal proceeding and the court in execution of the powers under Section 482 of Cr.P.C., can quash the proceedings.

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Having regard to the aforesaid decision and the circumstances discussed earlier, I am of the view that proceedings in C.C.No.523/2008 on the files of the

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CRL.MC NO. 206 OF 2013

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Additional Chief Judicial Magistrate Court,

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Thiruvananthapuram is an abuse of the process of the

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court and is liable to be quashed. Ordered accordingly.

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The Crl.M.C.is allowed as above.

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Sd/BECHU KURIAN THOMAS JUDGE

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AMV/15/11/2022

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CRL.MC NO. 206 OF 2013

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APPENDIX

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PETITIONERS ANNEXURES :

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ANNEXURE-1	CERTIFIED COPY OF THE FINAL REPORT IN CC NO.523/2008
ANNEXURE-II	COPY OF O.S.NO.1663/2007 DATED 16.10.2007.
ANNEXURE-III	COPY OF THE WRITTEN STATEMENT ALONG WITH COUNTER CLAIM DATED 10.10.2008.
ANNEXURE-IV	COPY OF THE COMPLAINT ALONG WITH RECEIPT DATED 26.10.2007.
ANNEXURE-V	COPY OF ADVOCTE COMMISSIONER'S REPORT SUBMITTED IN O.S.NO.1663/07 DATED 26.10.2007.

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RESPONDENTS ANNEXURES : NIL

Nazar v. State of Kerala

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Nazar v. State of Kerala

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