JOSE ALIAS THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused Nos. 1 to 5 in Crime No. 215 of 2000 of the Sreekandapuram Police Station for offences punishable under S.143, 147, 148, 452, 324, 326, 427 read with S.149 IPC and under S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. According to the petitioners this crime case is registered as a counter case to Crime No. 214 of the same police station which is registered against respondents 4 to 7 on the basis of a complaint preferred by the first petitioner for offences under S.341, 323, 324, 354, 506(1) r/w S.34 IPC.

(2.) The 4th respondent, it is stated, had executed an agreement on 4.11.1998 with one Jameela, D/o. Hamsa, Meethalakath, Nediyanga and one M. M. Mathai, S/o. Mathai, Nediyanga for excavation and removal of granite boulders from the properties belonging to them for a total consideration of Rs. 1,50,000/- for a period of 5 years. It is stated that the said properties are situated very close to the residences of the petitioners, that respondents 4 to 7 started running a granite quarry without obtaining any licence under the Panchayat Raj Act, the Explosives Act, the Minor Metals and Minerals Excavation Act and the Rules issued under the said Acts, that respondents 4 to 7 did not obtain no objection certificate from the nearby residents and that they have started excavating granite boulders by using explosives which started causing serious damages, health problems, and nuisance to all the neighbouring properties and persons. It is stated that the people of the locality objected to the same, that the quarry has a depth of 35 metres, that on 15.8.2000 the father of the 3rd petitioner fell down in the said quarry and died at the spot, that a case Crime No. 149/2000 was registered by the 3rd respondent and that the matter is being enquired into by the police. It is also stated that the petitioners along with the people of the locality submitted a mass petition (Ext. P5) before the Circle Inspector of Police seeking to stop the functioning of the quarry completely as the same is functioning without any proper licence or without taking any protective measures. Since no action was initiated by the authorities on such representation they filed representation before the District Collector, Kannur on 18.9.2000 with a copy to the R.D.O., Thalassery. The copies of the said complaints, it is stated, are given to the S. I. of Police, Kannur, Assistant Director of Geology, Kannur, Pollution Control Board, Kannur and the Secretary, Sreekandapuram Grama Panchayat. The 4th respondent in the meantime approached the Munsiff's Court, Thaliparamba and Sub Court, Payyannur by filing a caveat O. P. on 18.9.2000 against petitioners 2 and 3 and others. Since the respondents did not take any action on the representation the 5th petitioner and 2 others filed O. P. No. 27824 of 2000 before this Court, that notice was ordered in the said O. P. and that the R.D.O., on receipt of the notice, immediately passed on order under S.133(1) Cr.P.C. directing the 4th respondent and others to stop the quarrying of granite boulders within 7 days from the date of receipt of his order dated 30.10.2000. Prior to the said order the 3rd petitioner and his brothers had caused a lawyer's notice to be sent to the 4th respondent and the land owners of the quarry demanding an amount of Rs. 1,00,000/- for the damages caused to them due to the death of his father. It is alleged that even after the order passed by the R.D.O. respondents 4 to 7 without any regard to the same are conducting the quarrying operations, that the complaint in Ext. P1 is that these petitioners tried to prevent the work of loading of granite boulders from the quarry and that the petitioners had only brought this to the attention of the R.D.O. and had not done anything further. It is further alleged that respondents 4 to 7 for the purpose of preventing permanently any further action from the part of these petitioners had preferred complaint Ext. P1 including an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act so that the petitioners will not be able to get bail easily. The petitioners in the above circumstances have filed this Original Petition seeking to quash Ext. P1 F.I.R. They have also sought for direction to respondents 1 to 3 to effectively prevent respondents 4 to 7 from carrying out the illegal quarrying operations disobeying the order of the R.D.O.

(3.) A counter affidavit is filed by respondents 4 to 7. It is stated that the Original Petition is not maintainable, that the first prayer in the O. P. is to quash Ext. P1 which is the F.I.R. in Crime No. 215 of 2000 of Sreekandapuram Police Station, that the writ jurisdiction of this Court under Art.226 of the Constitution of India cannot be invoked for quashing the F.I.R. in a criminal case, that Crl. M. C. No. 6340/2000 filed by the petitioners for quashing the very same F.I.R. was withdrawn by them and that this Writ Petition is liable to be dismissed on these grounds alone. It is also stated that the petitioners have suppressed material facts and filed a false affidavit in the O. P. In the affidavit, the deponent has stated that he has not filed any petition as prayed for in the O. P. But he admitted in Para.5 of the O. P. that the petitioners have averred that the 5th petitioner and 2 others have filed O. P. No. 27824/2000 before this Court as the respondents were not taking any action on Ext. P5 petition. It is stated that the prayers in O. P. No. 27824/2000 and this O. P. are identical. They denied the averment that Crime No. 215/2000 was registered as a counter case to crime No. 214/2000. It is stated that the quarrying operations were going on in the plots belonging to one Jameela and Mathai with the permission of the authorities long before they undertook the work, that the quarry was leased out by its owners to one Sukumaran, Xavier and Devasya since 1995 and the petitioners had not raised any objections, that the 4th respondent was conducting the granite quarrying work on the basis of a valid lease from the owners believing in good faith, that the operation of the quarry was permitted by the authorities, and that the quarry site was bounded by a stone wall around and there is no public passage touching any boundary of the quarry. They have denied the averment that the respondents started running a granite quarry without obtaining licence from the Panchayat and without obtaining licence under the Explosives Act as also under the Minor Metals and Minerals Excavation Rules. They admitted that an old man named Chacko had fallen or jumped into the quarry on 15.8.2000. It is stated that his death was either accidental or suicidal. They have denied various averments contained in the O. P. They have also denied the averment that they are conducting the quarrying operations violating the order Ext. P7 passed by the R.D.O. and that loading granite from the quarry is different from excavating granite. It is stated that the offences alleged in Exts. P1 and P2 FIRs are under investigation by police officials and that if the petitioners are aggrieved by Ext. P1 FIR lodged by the police against them, it is for them to agitate the matter before the appropriate criminal court and not under Art.226 of the Constitution of India.