Babu and Others vs State of Kerala, Sub Inspector of Police and Sumam

Thomas P. Joseph, J.—Against husband of the third Respondent, the Sub Divisional Magistrate, Thiruvananthapuram passed orders purporting to be one under Sections 133 and 138 of the Code of Criminal Procedure (for short, "the Code") directing him to restore a pathway having a width of one metre and length of 100 metres. Husband of third Respondent challenged that order in Crl. R.P. No. 67 of 2005. It is alleged that in the meantime on 03.12.2005 and 04.12.2005 Petitioners and others trespassed into the property of C.W.1/third Respondent, destroyed the compound wall, portion of the building, cut down trees and constructed a road. In respect of the separate (alleged) incidents, the Chirayinkeezh Police registered Crime Nos. 344 and 345 of 2005 for offences punishable under Sections 143, 147, 188, 447 and 427 read with Section 149 of the Indian Penal Code. After investigation police submitted final reports against Petitioners. Learned Magistrate took cognizance of the said offences and filed C.C. No. 626 and 627 of 2007 respectively, against Petitioners. Those proceedings are challenged in these cases. Learned Counsel contends that there is no material on record to show that Petitioners are involved in the alleged incident and that it is a case where following the order of the Sub Divisional Magistrate, the people of the locality have opened a way since the husband of third Respondent refused to comply with the order of the Sub Divisional Magistrate. It is also stated that cases have been registered against Petitioners for the alleged incidents on successive dates which itself shows the falsity of the cases. I have heard learned Public Prosecutor also.

The Investigating Officer after investigation found involvement of Petitioners in the alleged incidents. It is seen that witnesses are cited to prove (alleged) involvement of Petitioners in the said incidents. Whether Petitioners are involved in the (alleged) incidents is not being a disputed question of fact, it is not required to be settled in a proceeding u/s 482 of the Code. It is for the trial court to decide at the appropriate stage whether Petitioners are involved in the alleged incidents and what if any, is the offence committed by Petitioners. I am not inclined, on the facts of these cases to think that this Court is justified in exercising the extraordinary jurisdiction u/s 482 of the Code.

Without prejudice to the right of Petitioners to take appropriate defence in the trial court at the appropriate stage, these Criminal Miscellaneous Cases are dismissed.