Nishad Vs. State of Kerala

Nishad vs State of Kerala

Type Court Judgment Court Kerala Decided Sep 11, 2013

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https://sooperkanoon.com/case/1089247

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Citation: sooperkanoon.com/1089247
Court: Kerala High Court
Judge: Honourable Mr.Justice V.K.Mohanan
Decided On: Sep 11, 2013
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Nishad

Respondent

State of Kerala

Excerpt

.....witnesses were cited to prove that due to excavation of sand there was diminition of supply of water for food or drink. it is also found that no evidence was adduced by the prosecution to prove that the sand was excavated from the property of a1. the defence contention was referred, according to which they were cultivating the land and not excavated the sand. on the strength of the testimony of pw5 according to the learned magistrate the contention of the accused cannot be brushed aside, since there are 4 or 5 pits having 40cm in depth. so on the basis of the above discussion and the evidence so referred, the learned magistrate concluded that the prosecution has not succeeded in establishing the gult of the accused for the offences punishable under sections 143, 147, 430 r/w section crl.m.c.no.3957 of 2013 3 149 of ipc.5. if that be so, according to me, in the given facts and circumstance of the case, even if the petitioner is ordered to under go ordeal of trial no purpose would be served rather the net result would be sheer waste of judicial time, which will amount to abuse of process of court. in the result this m.c is disposed of quashing annexure-1 fir and 2 final report and all further proceedings pending against the petitioner in c.c.no.307/2010 on the file of the judicial first class magistrate court-i, attingal. sd/- v.k.mohanan, judge as

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE11H DAY OF SEPTEMBER201320TH BHADRA, 1935 Crl.MC.No. 3957 of 2013 () --------------------------- CC. NO.307/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL. CRIME NO. 180/2005 OF PANGOD POLICE STATION. .......... PETITIONER/3RD ACCUSED: ------------------------------------------ NISHAD, S/O.ABDUL HAKKIM, THADATHARIKATHU VEEDU, KILIMANOOR MURI, PULIMATH VILLAGE, THIRUVANANTHAPURAM. BY ADVS.SRI.K.SIJU, SMT.CHITHRA.S.BABU. RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, PANGOD POLICE STATION, KOLLAM DISTRICT, REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR MR.RAJESH VIJAYAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON1109-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.MC.No. 3957 of 2013 APPENDIX PETITIONER'S ANNEXURES:- ANNEXURE-1: THE COPY OF THE FIR IN CRIME NO.180/2005 OF PANGOD POLICE STATION. ANNEXURE-2: COPY OF FINAL REPORT IN CRIME NO.180/2005 DATED1510.2005. ANNEXURE-3: COPY OF THE JUDGMENT

DATED0206.2009 IN C.C.NO.872/2006 ON THE FILE OF JFMC-I, ATTINGAL. RESPONDENT'S ANNEXURES:- NIL. //TRUE COPY// P.A. TO JUDGE. rs. V.K.MOHANAN, J --------------------------------------- Crl.M.C.No.3957 of 2013 ---------------------------------------- Dated this the 11th day of September, 2013 ORDER

The petitioner is the 3rd accused in Crime No.180/2005 of Pangod Police Station and on the strength of Annexure-3 judgment, according to the petitioner, the proceedings now pending against him are abuse of process of Court and no purpose would be served even if he is ready to face the trial. Therefore, the present M.C is filed under Section 482 of Cr.P.C with a prayer to quash Annexures-1 FIR and 2 final report and all further proceedings pending against the petitioner in C.C.No.307/2010 on the file of the Judicial First Class Magistrate Court-I, Attingal.

2. Heard the counsel for the petitioner and the learned Public Prosecutor.

3. The prosecution case is that accused 1 to 4 along with other persons, in prosecution of their common object to cause diminition of supply of water for agricultural purposes and for food and drink for human beings, on 10.05.2005 around 11 PM excavated the sand to a depth of 40 cm in the property of first accused in violation of the order of Hon'ble High Court of Kerala and thereby caused diminition of supply of water to the Crl.M.C.No.3957 of 2013 2 human beings in the locality. Thus the prosecution case is that the accused has committed the offences punishable under Section 430, 188 and 149 of IPC.

4. In the light of the submission made by the counsel for the petitioner, I have carefully perused Annexure-3 judgment and the learned Magistrate who undertaken the trial in C.C.No.872/2006, particularly in paragraph 16 of Annexure-3 judgment, it is found no independent witnesses were cited to prove that due to excavation of sand there was diminition of supply of water for food or drink. It is also found that no evidence was adduced by the prosecution to prove that the sand was excavated from the property of A1. The defence contention was referred, according to which they were cultivating the land and not excavated the sand. On the strength of the testimony of PW5 according to the learned Magistrate the contention of the accused cannot be brushed aside, since there are 4 or 5 pits having 40cm in depth. So on the basis of the above discussion and the evidence so referred, the learned Magistrate concluded that the prosecution has not succeeded in establishing the gult of the accused for the offences punishable under Sections 143, 147, 430 r/w Section Crl.M.C.No.3957 of 2013 3 149 of IPC.

5. If that be so, according to me, in the given facts and circumstance of the case, even if the petitioner is ordered to under go ordeal of trial no purpose would be served rather the net result would be sheer waste of judicial time, which will amount to abuse of process of Court. In the result this M.C is disposed of quashing Annexure-1 FIR and 2 final report and all further proceedings pending against the petitioner in C.C.No.307/2010 on the file of the Judicial First Class Magistrate Court-I, Attingal. Sd/- V.K.MOHANAN, JUDGE AS

Same Court & Year Kerala · 2013 Same Parties Nishad vs State of Kerala Same Subject Land Acquisition Same Judge Honourable Mr.Justice V.K.Mohanan