Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 19TH DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 CRL.MC NO. 81 OF 2020 CRIME NO.473/2017 OF POTHENCODE POLICE STATION, THIRUVANANTHAPURAM IN CC NO.1264 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL
PETITIONERS/ACCUSED: 1 VINEETHA AGED 33 YEARS D/O. SUSEELA, SANTHOSH BHAVAN, ANACKODE, MANJAMALA, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT-695317. 2 SHIBU AGED 48 YEARS S/O. SUDHAKARAN, GOKULAM VEEDU, ANACKODE, MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT-695317. BY ADV M.ABDUL RASHEED RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA THROUGH STATION HOUSE OFFICER, POTHENCODE POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,HIGH COURT P.O, ERNAKULAM-682031. 2 SHIBU AGED 43, S/O. VISWAMBARAN, -:2:- AMALALAYAM HOUSE, MANGATTUKONAM, CHANTHAVILA DIVISION, AYIROOPARA VILLAGE, THIRUVANANTHAPURAM-695584. BY ADV. M.C .ASHI PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: -:3:-
BECHU KURIAN THOMAS, J.
--------------------------------------- --------------------------------------- Dated this the 19th day of March, 2024
ORDER
Petitioners are the accused in C.C.No.1264/2017 on the files of the Judicial First Class Magistrate’s Court-I, Attingal, arising out of Crime No.473/2017 of Pothencode Police Station, Thiruvananthapuram District. Petitioners seek to quash the proceedings in the above case through this petition under Section 482 of the Code of Criminal Procedure, 1973.
2. According to the prosecution, the accused had, on 22.03.2017,
blocked a pathway leading to the house of the plaintiff in OS.No.128/2017, by dumping two loads of metal, causing obstruction and also acted in violation of the interim order in I.A.No.709/2019 in O.S.No.128/2017 and thereby committed the offences under Sections 188 and 283 r/w Section 34 of the Indian Penal Code, 1860.
3. I have heard Sri. M.Abdul Rasheed, the learned counsel for the petitioners and Sri. Ashi.M.C, the learned Public Prosecutor.
4. Despite notice to the second respondent, there is no appearance.
5. As per Section 195 of Cr.P.C, no court shall take cognizance of an
offence under Section 188 of IPC, unless the complaint in writing is given by the public servant concerned or some other public servant to whom he is administratively subordinate. Petitioners are alleged to have violated an -:4:- interim order of the Munsiff’s Court, Attingal, in O.S.No.128/2017 and the defacto complainant is the Sub Inspector of Police. There is no compliance with the mandate of Section 195 of Cr.P.C, as the Sub Inspector of Police cannot fall within the purview of the public servant concerned, when the order of court is allegedly violated. On the above basis, Section 188 of IPC cannot be attracted.
6. As far as Section 283 IPC is concerned, the offence is attracted
only if the obstruction is caused on a public way or public line of navigation. Though the final report alleges that two loads of metal were unloaded on a pathway, there is no reference to a public pathway. In the absence of the said allegation, the offence under Section 283 of IPC also cannot be attracted.
7. In such a view of the matter, proceedings against the petitioners in C.C.No.1264/2017 on the files of the Judicial First Class Magistrate’s Court-I, Attingal is an abuse of the process of the court.
8. Accordingly, all proceedings against the petitioners in
C.C.No.1264/2017 on the files of the Judicial First Class Magistrate’s Court-I, Attingal, arising out of Crime No.473/2017 of Pothencode Police Station, Thiruvananthapuram District, shall stand quashed. Criminal miscellaneous case is allowed as above. Sd/- BECHU KURIAN THOMAS JUDGE Jka/19.03.24. -:5:- APPENDIX OF CRL.MC 81/2020 PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE F.I.R IN CRIME NO. THIRUVANANTHAPURAM DISTRICT. ANNEXURE A2 TRUE COPY OF THE INJUNCTION ORDER DATED 20.03.2017 IN IA NO.709/2017 IN OS NO. COURT, ATTINGAL. ANNEXURE A3 TRUE COPY OF THE PLAINT IN OS NO. 128/2017 DATED 20.03.2017 ON THE FILE OF MUNSIFFS COURT, ATTINGAL. ANNEXURE A4 CERTIFIED COPY OF THE FINAL REPORT IN CC
NO.1264/2017 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL WITH AROSE FROM CRIME NO.473/2017 OF POTHENCODE POLICE STATION, THIRUVANANTHAPURAM DISTRICT.