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Judgment
Thomas P. Joseph, J.—Petitioner is accused in Crime No. 21 of 2014 of the Pothanikkadu Police Station for the offences punishable under Sections 452, 294(b), 506(i) of the Indian Penal Code, Section 118(b) of the Kerala Police Act, apprehends arrest and has filed the application.
Learned Public Prosecutor has opposed the application. It is submitted that as per version of the de facto complainant, on 28.03.2013 the petitioner threatened him over phone and following that, trespassed into his house breaking open the door. Petitioner and family are forcibly staying there.
Learned counsel submits that the allegations are not true. The de facto complainant owed money to the petitioner. They executed Annexure-A agreement whereby the house in question was pledged in favour of the petitioner as security. The understanding is that the petitioner could possess the building until the de facto complainant re-pays the amount. The amount is not repaid. The de facto complainant has also filed suit in the civil court. It is also stated that the petitioner is willing to handover the building to the de facto complainant on payment of the entire amount.
Hearing both sides it would appear that the petitioner is trying to enforce a right of mortgage over the immovable property. But, as per the law no mortgage over immovable property worth more than Rs. 100/- could be created or enforced except by a registered instrument and any transaction otherwise would not affect the property. The petitioner says that he will vacate the building only if the entire amount is paid. May be, the Division Bench of this Court has passed order concerning police harassment and a civil suit also is pending. Now, I am to consider whether the discretionary jurisdiction should be exercised in favour of the petitioner?
Having regard to the relevant circumstances, including that the petitioner has occupied house of the de facto complainant, I am inclined to think that I should not.
The application is dismissed.
It is directed that in case the petitioner is arrested, he shall be produced before the jurisdictional magistrate as early a possible.