HIDAYATHULLA Vs. STATE OF KERALA

JUDGEMENT

(1.) This application is filed under Section 438 of the Code of Criminal Procedure.

(2.) On 22.7.2019, Crime No.1883 of 219 of the Medical College Police Station was registered at the instance of the Assistant Engineer, Sewerage Section, Kerala Water Authority ("KWA" for short) against certain unknown persons under Section 447 read with Section 34 of the IPC and under Section 3 of the Prevention of Damage to Public Property Act, 1984. In the complaint it is alleged that certain unidentified persons trespassed into the property possessed by the Kerala Water Authority where the Subsection office was functioning and demolished a portion of the building situated in the said property. It is also alleged that they brought down certain trees causing loss to the KWA and the State Exchequer. In the course of investigation, a friend and relative of the 1st applicant is alleged to have stated that it is at the instance of the 1st applicant herein that workers entered the premises and cleaned up the area in the course of which, a building situated therein was brought down. Based on the above information, the applicants herein were roped in as accused.

(3.) Sri.C.Harikumar, the learned counsel for the applicants, submitted that the applicants herein are near residents and according to the learned counsel, the property which is the subject matter of the dispute, having an extent of about 34 cents, originally belonged to late Abdul Rahuman Kunju. The said property was assigned to the 1st applicant by the legal heirs of Abdul Rahman. The 2nd applicant is a near relative and friend of the 1st applicant. They were roped in as an accused at a much later stage based on the statement given by Sri. Naseer. According to the learned counsel, the applicant has already approached the learned Munsiff, Thiruvananthapuram and had filed O.S.No.1326 of 2019 arraying the Kerala Water Authority and its Executive Engineer as defendants and has sought for a declaration of the 1st applicant's right over the very same property and to injunct Kerala Water Authority and its officers from interfering with his possession. According to the learned counsel, the property was lying in an abandoned state and the building which was situated therein was an old and run down building. Much reliance is placed on the report of the Commissioner Advocate who had visited the spot in terms of the orders issued by the learned Munsiff to advance his contention.