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BEENA versus PRIYA

High Court of Kerala

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BEENA v. PRIYA - Crl Rev Pet No. 3370 of 2006 [2006] RD-KL 965 (4 October 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3370 of 2006()

1. BEENA, W/O.GOPALAKRISHNAN,
... Petitioner

Vs

1. PRIYA, AGED 29, D/O.LATE SEKHARAN,
... Respondent

2. REMA, AGED 42, DO. DO.

3. BABY, AGED 44, DO. DO.

4. VIJAYA, AGED 38, DO. DO.

5. VINOD, AGED 27, S/O.LATE SEKHARAN,

6. STATE OF KERALA TO BE REP. BY PUBLIC

For Petitioner :SRI.K.S.MADHUSOODANAN

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :04/10/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 3370 of 2006
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Dated this the 4th day of October, 2006

O R D E R

This revision petition is directed against an order passed by the Magistrate under Section 203 Cr.P.C. dismissing a complaint filed by the complainant alleging commission of offences punishable under Sections 143, 147, 427, 448 and 457 r/w. 149 I.P.C.

2. All the five accused persons are siblings. The house in question admittedly belonged originally to the mother of the accused. The mother of the accused, it is claimed, had executed an Assignment Deed in favour of the complainant/the petitioner herein. The complainant would allege that even though the title was transferred under the document dt. 9.9.1999 the vendor and her children were permitted to continue in the premises - a residential building and the appurtenant land. Such possession, according to the complainant, continued till 1.6.2005.

3. On 1.6.2005, it is contended that, the accused persons Crl.R.P.No. 3370 of 2006 2 voluntarily surrendered possession of the premises to the complainant. Long later, it is alleged that, the complaint was filed on 18.7.05 complaining about forcible eviction of the accused persons by high handed action of the petitioner and her husband along with others. The petitioner's husband, it is alleged, is a person engaged in money lending business. When that complaint from the accused was received by the police, the parties were allegedly called to the police station. The complainant would aver that the police explained that this was a civil dispute and the police cannot take any action in the matter.

4. The allegation in the complaint filed by the petitioner is that thereafter on 19.7.2006 at 10 p.m. all the accused criminally trespassed into the property which was allegedly covered by document dt. 9.9.1999. The accused broke open the house in the possession of the complainant and indulged in contumacious and culpable overt acts. This incident allegedly took place on 19.7.2006. The police did not take any effective action and this allegedly obliged the complainant to go before the criminal court with a criminal complaint. Before the criminal court, the sworn statements of the complainant and two witnesses were recorded. Thereafter the court Crl.R.P.No. 3370 of 2006 3 proceeded to consider whether there are sufficient grounds to proceed against the accused under Section 203/204 Cr.P.C. By the impugned order, in which a fairly detailed consideration of the question is undertaken, the learned Magistrate came to the conclusion that there are no sufficient grounds to proceed against the accused. The petitioner claims to be aggrieved by the impugned order.

5. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned order passed by the learned Magistrate, the learned counsel for the petitioner submits that an innocuous and incongruent statement by the witnesses as to whether the front door or rear door was broken open was relied on by the learned Magistrate to come to the conclusion that there is no sufficient ground to proceed. The learned counsel for the petitioner, relying on precedents on the point, advances a contention that meticulous evaluation, assessment and appreciation of evidence is not warranted at the stage of Section 203/204 Cr.P.C. The counsel urges that the threshold satisfaction required is much lesser and inferior and the court is not expected to delve deep into the question. The innocuous incongruity between the sworn statements of the two witnesses Crl.R.P.No. 3370 of 2006 4 as to whether the front door or rear door was opened should not have weighed with the court as a satisfactory reason to conclude that there is sufficient ground to proceed against the accused, submits counsel.

6. I have been taken through the impugned order in detail. The learned counsel for the petitioner has advanced detailed arguments. The learned counsel for the petitioner has taken me through the sworn statements of the witnesses as well as the complaint. Having gone through all these relevant inputs, I must express my opinion that the conclusion of the court below does not appear to be suffering from any gross error, much less perversity. At the stage of Section 203/204 Cr.P.C. the Magistrate has a very sublime duty to perform. The jurisdiction of the criminal court to consider the materials available before it varies from stage to stage. At the stage of Section 203/204 Cr.P.C. the Magistrate should concern himself with the short question whether there are sufficient grounds to proceed. The exercise of weighing the evidence in golden scales is not to be undertaken at this stage and must necessarily be postponed to the later stages of the trial. But the limited nature of jurisdiction does not at all Crl.R.P.No. 3370 of 2006 5 oblige the court to swallow whatever assertions are made by the complainant and his interested witnesses at the stage of taking cognizance. Alert application of mind is required though not a meticulous appreciation and evaluation of the data placed. At the threshold the court has the duty to show the door to a vexatious complainant. At the same time, it has the duty to ensure that a bonafide complainant is given the fuller opportunity to adduce better and more elaborate evidence. Conscious of the twin responsibilities, the sublime function under Section 203/204 has to be undertaken by any court.

7. Having thus identified the principles, I now look at the fact. Admittedly, from 9.9.1999 to 1.6.2005 the accused and their mother were in possession of the property. The crucial question hence is whether there has been a transfer of possession on or after 1.6.2005. On that crucial aspect we find only the oral assertion of PW1. In the nature of the facts and circumstances of this case, I am certainly of the opinion that any prudent person, whose standards Section 3 of the Evidence Act obliges the courts to follow, must have insisted on satisfactory data primafacie to persuade a court to come to the conclusion that there actually was a transfer Crl.R.P.No. 3370 of 2006 6 of possession. Only if that fundamental and axiomatic aspect is indicated satisfactorily could the court permit initiation of the criminal adjudicatory process against the accused person. On this crucial and vital aspect, as the materials stood before court when it proceeded to pass the impugned order, I find absolutely no satisfactory data except the oral assertion of PW1. Better and more satisfactory reasons must reasonably be insisted by any prudent mind to tilt the scales in favour of the complainant on that crucial aspect.

8. The learned counsel for the petitioner fairly concedes that a civil suit is filed for injunction on the strength of the title deed dt. 9.9.1999. The counsel also submits that certain crucial admissions were made by the accused persons in the complaint filed before the police on 18.7.05. The same has not been produced before the court.

9. Be that as it may, I am certainly of the opinion that the conclusion of the court below that there are no sufficient ground to proceed against the accused and to initiate criminal adjudicatory process against them cannot be said to suffer from any such vice which warrants or can persuade this court to invoke the revisional jurisdiction of superintendence Crl.R.P.No. 3370 of 2006 7 and correction against the impugned order. The said finding does appear to me to be absolutely justified on the basis of the materials available and at any rate, I am not persuaded to agree that the finding/order results in any miscarriage of justice. It appears to me that the civil dispute must be resolved by initiating appropriate proceedings before the civil court. Some steps have already been initiated. I am in these circumstances satisfied that this revision petition deserves to be dismissed.

10. This revision petition is hence dismissed. I may hasten to observe that no observations in this order shall be reckoned as expression of opinion on the crucial disputes between the parties. Any court called upon to decide such questions will have to decide them on the basis of materials which will be made available to such court, untrammelled by any observations by courts in these proceedings. (R. BASANT) Judge tm


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