ABU FAISAL vs STATE OF KERALA

The petitioners are accused Nos.1 to 6 in C.C.No.1173/2017 of the Judicial First Class Magistrate''s Court, Kadakkal, based on Annexure-

A5 final report in Crime No.26/2013 of the Kadakkal Police Station, for the offences under Sections 143, 147, 451, 188 and 427 read with 149

IPC. Disputes were pending between the petitioners and the defacto complainant. According to the petitioners, the defacto complainant is a money

lender. It is the case of the petitioners that the 1st petitioner happened to borrow an amount of Rs.15 Lakhs from the defacto complainant.

Subsequently, just as an arrangement, the property and the building in question were transferred to the defacto complainant by the 1st petitioner,

through a sale deed.

Challenging the sale deed, the 1st petitioner filed a civil suit before the Subordinate Judge''s Court, Kottarakkara through Annexure-A3

complaint as O.S.No.47/2013. The defacto complainant had also filed O.S.No.321/2012 before the Subordinate Judge''s Court, Kottarakkara

against the 1st petitioner herein. An order of temporary injunction was passed in O.S.No.321/2012.

The allegation is that the defacto complainant was in possession of the building and property, and in his absence the petitioners formed

themselves into an unlawful assembly and trespassed into the property and building by smashing the locks of the building. After committing house

trespass, it is alleged that the locks of all the rooms in the building were also destroyed and forced open, which resulted in a wrongful loss of

Rs.15,000/- to the defacto complainant.

According to the learned counsel for the petitioners, the offence under Section 188 IPC is not legally sustainable through the final report filed by

the police. The argument seems to be correct in view of the specific bar contained in Section 195(1)(a)(i) Cr.P.C. The further argument is that

when the other offences, which are shown as distinct offences, have been committed along with the offence under Section 188 IPC, the said

offences are incorporated with a view to make devices for escaping from the clutches of Section 195(1)(a)(i) Cr.P.C., and therefore, all those

offences also could not have been taken cognizance of by the court below, as decided in Basir-Ul-Huq v. State of West Bengal [AIR 1953 SC

293(A)].

The question to be considered here is whether the other offences alleged are dependent on the offence allegedly committed under Section 188

IPC. It is a mixed question of law and facts. The same has to be elicited through evidence. The present stage is too premature to conclude that the

other distinct offences alleged are solely dependent on the offence under Section 188 IPC. Therefore, this is not a fit case wherein a premature

termination of the prosecution proceedings can be ordered.

In the result, this Crl.M.C. is allowed in part and the offence under Section 188 IPC incorporated in Annexure-A2 final report is quashed. The

petitioners are at liberty to take up all these contentions before the court below at appropriate stage, either at the stage of Section 239 Cr.P.C., if

that stage is not over, or during trial, as the case may be. As far as practicable, the court below shall grant exemption to the petitioners from

personal appearance.