Allowed

Fr. Antony Chillittassery v. State of Kerala

Kerala HC11 Jul 2024Crl.MC/1096/2017

Case brief

AI extract

What is this about?

Accused sought quashing of prosecution arising from construction of a compound wall allegedly in violation of prohibitory orders and without licence. The court held that a Section 188 IPC case cannot be launched on a private complaint under Section 195 CrPC, unlawful assembly offences consequently failed, and Section 235W(2) is exercisable only by the Panchayat Secretary.

What did the court decide?

All proceedings against petitioners in C.C.No.588/2013 (Crime No.286/2010, Vadakkekara Police Station) quashed; Crl.MC allowed.

Fr. Antony Chillittassery Vs State of Kerala — Quashing and FIR | Kerala HC (2024)

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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
THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA,

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1946

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CRL.MC NO. 1096 OF 2017

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CRIME NO.286/2010 OF VADAKKEKARA POLICE STATION,

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ERNAKULAM

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AGAINST THE ORDER/JUDGMENT DATED IN CC NO.588 OF 2013

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OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH

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PARAVUR

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PETITIONERS/ACCUSED :

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1 FR. ANTONY CHILLITTASSERY, AGED 43 YEARS S/O. THOMAS, CHITTILASSERY HOUSE, PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICTG

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2 STANLY, S/O. RAPHEL, AGED 53, VADAPPURATH HOUSE, KADALVATHURUTH, GOTHURUTH P.O, CHENNAMANGALAM VILLAGE, ERNAKULAM DISTRICT.

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3 JOLY PETER, S/O. PETER, AGED 59, VALIYAVEETTIL HOUSE, KADALVATHURUTH, GOTHURUTH P.O, CHENNAMANGALAM VILLAGE, ERNAKULAM DISTRICT

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4 SASI, S/O. ANTONY, AGED 53, PUTHEZHATH HOUSE, KADALVATHURUTH, GOTHURUTH P.O, CHENNAMANGALAM VILLAGE, ERNAKULAM DISTRICT

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5 WILSON, S/O. FRANCIS, AGED 59, VALIYAVEETTIL HOUSE, KADALVATHURUTH, GOTHURUTH P.O, CHENNAMANGALAM VILLAGE, ERNAKULAM DISTRICT

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CRL.MC 1096/2017

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2

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6VISAL, S/O. WILSON,
AGED 18/10,
VALIYAVEETTIL HOUSE,
KADALVATHURUTH,
GOTHURUTH P.O,
CHENNAMANGALAM VILLAGE,
ERNAKULAM DISTRICT
BY ADVS.
SRI.P.SAMSUDIN
SRI.K.C.ANTONY MATHEW
SMT.ANJU CLETUS
SRI.JITHIN LUKOSE

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RESPONDENT/STATE :

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1STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA,
ERNAKULAM 682 031
(CRIME NO 266/2010 OF VADAKKEKARA POLICE STATION IN
ERNAKULAM DISTRICT)

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2ADDL R2
ANTONY, AGED 72 YEARS,
S/O CHEEKKU, PARAKKAL HOUSE,
KADALVATHURUTHU, GOTHURUTH,
CHENDAMANGALAM VILLAGE,
GOTHURUTHI P.O,683516, PARAVOOR,
ERNAKULAM DISTRICT. IS IMPLEADED AS ADDL.R2 AS PER
ORDER DATED 01/07/2024 IN CRL.M.A.NO.1/2021 IN
CRL.M.C.NO.1096/2017.
BY ADV FRANKLIN ARACKAL
SRI.NOUSHAD K.A., PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.07.2024,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC 1096/2017

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BECHU KURIAN THOMAS, J

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

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Crl.M.C.No.1096 of 2017

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

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Dated this the 11^th day of July, 2024

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ORDER

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Petitioners are the accused in C.C.No.588/2013 on the files of the Judicial First Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station. It is submitted that the 5^th accused has already expired.

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According to the prosecution, accused had on 19.04.2010 formed themselves into an unlawful assembly and in furtherance of their common object to construct a compound wall around a property in violation of the prohibitory orders of the District Collector and while they were indulging in the construction, the local people who had questioned the same was intimidated with threats to kill them and thereby committed the offences punishable under Sections 143, 147, 148, 188, 283, r/w Section 149 of the Indian Penal Code, 1860, apart from Section 235W(2) of the Kerala Panchayat Raj Act, 1994.

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I have heard Sri.P.Samsudin, the learned counsel for the petitioners as well as Sri.Noushad K.A., the learned Public Prosecutor and Sri.Franklin

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CRL.MC 1096/2017

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Arackal, the learned counsel for the second respondent.

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On a reading of the prosecution allegations, as revealed from the final report, it is evident that, the construction of the compound wall was alleged to be in violation of a prohibitory order issued by the District Collector, based on which, the offences are alleged to have been committed. Admittedly the FIR was registered not at the behest of the District Collector, who had issued the prohibitory order under Section 188 of IPC, instead it is initiated by the second respondent, who is a private individual.

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As per the provisions of Section 195 Cr.P.C. an offence under Section 188 IPC can be initiated only on the basis of a complaint filed by the public servant, who issued the order or by a public servant who is administratively subordinate to the person who issued the order. Admittedly, complaint having been initiated by the second respondent-a private individual, the requirement under Section 195 Cr.P.C. is not satisfied. Hence, Section 188 IPC is not attracted under any circumstances, whatsoever.

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Once the offence under Section 188 IPC is not attracted, the alleged assembly of five or more persons cannot be stated to be unlawful.

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CRL.MC 1096/2017

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Therefore, the offence under Sections 143, 147, 148 r/w Section 149 of IPC also cannot be attracted.

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As far as Section 235W(2) of the Panchayat Raj Act is concerned, the same confers power upon the Secretary of the local authority to initiate prosecution proceedings for any unauthorised construction. The provision confer power upon the Panchayat to initiate prosecution proceedings. A complaint filed by a private individual is not the proceeding contemplated under Section 235W(2) of the Act. Since the power under Section 235W(2) is vested solely with the Secretary of the local authority, the prosecution is without legal backing.

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Even otherwise, the requirement of a license to construct the compound wall was brought in only as per Rule 87 of the Kerala Panchayat Building Rules, 2011; with effect from February 14, 2011, that too with the condition that the property abuts a public road. There is no reference in the final report that the alleged property is adjacent to any public road as such. In view of the above circumstances, the offence under Section 235W(2) of the Panchayat Raj Act is also not attracted.

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Viewed in the above perspective, I find that the prosectuion initiated against petitioners in C.C.No.588/2013 on the files of the Judicial First

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CRL.MC 1096/2017

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Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station, is an abuse of the process of law.

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Accordingly, all proceedings against petitioners in C.C.No.588/2013 on

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the files of the Judicial First Class Magistrate Court, North Paravur, arising out of Crime No.286/2010 of Vadakkekara Police Station, are quashed.

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The Crl.M.C.is allowed.

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AMV/12/07/2024

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CRL.MC 1096/2017

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APPENDIX OF CRL.MC 1096/2017

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PETITIONER ANNEXURES

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`ANNEXURE A1`	`THE CERTIFIED` `286/2010 OF VA`	`COPY` `DAKKE`	`OF THE FIR AND FIS IN NO` `KARA POLICE STATION.`
`ANNEXURE A2`	`THE CERTIFIED` `CRIME NO.286/` `STATION.`	`COPY` `2010`	`OF THE CHARGE SHEET IN` `OF VADAKKEKARA POLICE`
`ANNEXUREA3`	`TRUE COPY OF` `GRANTED BY THE` `12-09-2011.`	`THE` `DIST`	`ORDER APPROVING THE SITE` `RICT MEDICAL OFFICER DATED`
`ANNEXUREA4`	`TRUE COPY OF` `DISTRICT COLLE`	`THE` `CTOR`	`LICENSE GRANTED BY THE` `DATED 22-11-2014.`

Fr. Antony Chillittassery v. State of Kerala

Case brief

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Fr. Antony Chillittassery v. State of Kerala

Case brief

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