BIJU K.PETER Vs. STATE OF KERALA

JUDGEMENT

(1.) Above Crl.R.P has been filed by the accused persons (eight in number) in C.M.P No.174 of 2016 of JFCM, Kolenchery, under Sec. 401 of Cr.P.C to set aside the impugned order of taking cognizance and issuing summons, and to dismiss the same with costs.

(2.) The petitioners' case in short is as follows: They belong to Kunnathu family and they are age old and sick and they are well reputed persons in that locality. On 26/2/2016, the 2nd respondent filed a private complaint against the petitioners, alleging that on2/12/2015 they trespassed into the cemetery of St.Peters and St.Pauls Church, Kolenchery, destroyed tombstones fixed in the tomb of his family members causing damages to the tune of Rs.10,000.00.

(3.) The cemetery belongs to St.Peters and St.Pauls Church and more than 130 members of petitioners' family are members of that Parish. A specific area is there in the cemetery of the Church, where tombs of petitioners' family is situated. In fact the 2 nd respondent damaged a portion of the petitioners' family tombs, for which they have filed O.S No.77 of 2015 before Munsiff Court, Kolenchery seeking a decree of permanent prohibitory injunction and such other reliefs. The Advocate Commissioner visited the suit property twice and filed reports. Only to bypass the situation and to defend the civil case, after a lapse of more than two months, 2 nd respondent filed a private complaint against these petitioners, who are senior citizens retired from responsible posts and ailing from various illnesses. The case is purely civil in nature. There is nothing to prove the ingredients of Ss. 427 and 379 of IPC as against these petitioners. The Church in question was closed for long and it is under the custody and surveillance of Police. So, the offence as alleged was not possible or probable. The 2nd respondent has no locus standi to file this complaint. Since the petitioner are age old and sick, there is no possibility for them to travel long distance to reach the cemetery and to destroy the tombstones fixed in the tombs of respondent-family members. The learned Magistrate without considering the real state of affairs simply took cognizance against the petitioners under Ss. 427 and 379 of IPC and hence it is liable to be set aside.