Nipun Cherian vs State Of Kerala

V.G.Arun, J

The petitioner is the first accused in Crime No. 614 of 2020 registered at the Ernakulam Town South Police Station for offences punishable under

Sections 447, 353, 506 and 427 r/w 34 of IPC and the subsequently added Section 3(1) of the Prevention of Damages to Public Property Act, 1994.

The crime was registered on the allegation that the petitioner and three others had trespassed into the private property of one Commander Praveen

George from where soil was being excavated for geotechnical analysis by the Kochi Metro Rail Ltd (KMRL), in connection with the proposed Water

Metro Project of the State Government. It is alleged that the accused intimidated the workers, destroyed some of the soil samples and took away the

balance, thereby causing a loss to the tune of Rs.2.25 lakhs. The petitioner is seeking to get the FIR and further proceedings quashed. The prayer is

founded on the contention that no offence will be made out, even if the allegations are accepted in their entirety.

According to Sri.Ashik K. Mohamed Ali, learned Counsel for the petitioner, the KMRL was attempting to construct a bund to the Chilavannur

Kayal, violating the Stop Memos issued by the revenue authorities, as also the interim direction of the High Court. On coming to know about this, the

petitioner, as a dutiful citizen, had prevented the workers at the site from continuing the illegal activity. In an attempt to prove the contention, reliance

was placed on Annexure A3 and A6 orders of this Court and Annexures A4 and A5 Stop Memos issued by revenue authorities. Attention was drawn

to Annexures A7 and A8 satellite images, to point out the illegal constructions around Chilavannoor Kayal and Annexure A10, to contend that the

alleged place of occurrence is within prohibited distance from the high tide line. The decision in Poulose v State of Kerala (1984 KLT 759) was cited

to contend that the offence under Section 353 IPC will be attracted only when a public servant is prevented from carrying out his lawful duty and not

when an illegal activity by the public servant is obstructed. It was also argued that the ingredients to attract the other IPC offences are not made out

and that the offence under Section 3(1) of the PDPP Act has been added to get over this lacuna.

Sri.Hrithik C.S, learned Senior Public Prosecutor, highlighted the circumspection with which the power under Section 482 Cr.P.C is to be exercised,

particularly when the prayer is for premature termination of a criminal investigation. Refuting the factual averments, it was submitted that the KMRL

and its workers were not engaged in any construction activity in or around Chilavannoor Kayal. The only work being done was collection of samples

for geotechnical investigation from a private property and as on 16.09.2020, sixty samples had been collected and stored inside wooden boxes. The

petitioner along with other accused trespassed into the property, intimidated and threatened the workers at the site, destroyed some of the samples and

took away the rest. According to the learned Prosecutor, the work was done after obtaining sanction from the District Collector and with due

intimation to the Village Officer. It was pointed out that the stop memos produced by the petitioner have nothing to do with the soil sampling work

conducted by the KMRL and that no order interdicting the preparatory activities of the Water Metro Project has been issued by the High Court.

The argument based on the stop memos issued by the revenue authorities and the interim order of this Court cannot be countenanced for the

following reasons; Annexures A4 and A5 stop memos have nothing to do with the soil sampling work undertaken by the KMRL. The direction in

Annexure A3 is only to survey the lands on the banks of Chilavannur lake. Pertinently, even in Annexure A6 order issued in the writ petition filed by

the petitioner challenging the encroachments, illegal constructions and dumping of waste in and around Chilavannur Kayal, there is no order

interdicting the activities of the KMRL. As such, the contention that the activities of the KMRL being illegal, the offence under Section 353 IPC is not

attracted, is liable to be rejected.

The legal position that the High Court, while exercising jurisdiction under Section 482 Cr.P.C should not embark upon an enquiry as to the

genuineness or otherwise of the allegations or probe into the evidence, being trite, the argument based on Google Maps and Charts is also liable to be

rejected.

Having gone through the allegations in the FIR and the statement of the de-facto complainant, I am unable to accept the contention that the

allegations do not disclose the commission of any offence or make out a case against the petitioner.

The learned Counsel for the petitioner strenuously contended that the petitioner is being victimised for espousing a public cause. Even accepting that

the petitioner is a good samaritan, the alleged act of intimidating workers engaged in public work and of destroying the soil samples, cannot be justified.

Such acts, if encouraged, will upset the rule of law and lead to anarchy.

In the result, the Crl.M.C is dismissed.