MUTHUKUMARASWAMY PILLAI Vs. BHAGAVATHI CHETTIYAR

JUDGEMENT

(1.) This revision petition is filed by the complainant against the order of the lower court by which the accused were discharged on the ground that the court was not competent to take cognizance of the offence as the complaint was not made by a person who was aggrieved by such offence. The complaint was that the accused trespassed on a particular land and into the building standing thereon and committed mischief, offences falling under Ss. 453 (1) and 427 of the Travancore Penal Code. The land and the building admittedly belonged to the complainant's wife but it was stated that they were in his possession and that he had locked the building with his own lock which was broken open by the accused in the process of entering the building. It was also alleged that he had spent his own money over repairs to the building and that to that extent he had some tangible interest in the property. After a part of the evidence was adduced for the prosecution, the defence raised the point that the complainant was not a person aggrieved by the offence and that therefore the court was not competent to take cognizance of the offence under the provisions of S.195 of the Criminal Procedure Code. The defence contention was accepted and the accused were discharged under S.250 of the Criminal Procedure Code.

(2.) S.195 of the Code provides that no court shall take cognizance of an offence falling under Ss. 496 to 499 (both inclusive) of the Travancore Penal Code, or any offence compoundable without the permission of the court under S. 285 except upon a complaint made by some person aggrieved of such offence. One of the offences of which the accused were charged in this case namely mischief is one compoundable without the permission of the court and no court therefore can take cognizance of that offence except upon a compliant made by some person aggrieved by the offence. The question arising for consideration in this case is whether the husband alleging to be in possession is a person aggrieved by the offence of mischief committed in respect of property belonging to his wife. Where the question was raised whether an agent in charge of property on behalf of an absent principal may maintain a prosecution for a compoundable offence committed in respect of such property, it was held by a Full Bench in Criminal Proceedings No. 221 of 1072 (reported in 14 Travancore Law Reports, Appendix page 1) that he could maintain such a charge and invoke the aid of the criminal courts for the protection of his possession on behalf of the absent owner. In Criminal Proceedings No. 13 of 1079 (reported in 19 Travancore Law Reports 121) it was held that a Samudaya Manushiyam of a Devaswom can maintain a charge of mischief committed in respect of property belonging to the Devaswom. The Samudaya Manushiyam was held to be "a person aggrieved" (under the corresponding S. 176 of the old Criminal Procedure Code) so as to be entitled to complain of the destruction of trees belonging to the Devaswom. In a similar case reported in 2 Travancore Law Journal 228 it was held that the manager of a temple was a person aggrieved within the meaning of the term as used in S. 176 of the Code and could institute a complaint for an offence of mischief in respect of the properties of the temple under his management.

(3.) The question was raised in Criminal Proceedings No. 30 of 1080 (reported at page 255 of Kolappa Pillai's Important Unreported Decisions) whether an agent with limited powers can prefer a complaint for mischief committed on the property belonging to his principal, it was held that having regard to the wording of the Muktiyarnamah and the fact that the agent was neither in possession nor in charge of, nor had any duties in respect of the garden in which the mischief was alleged to have been committed, he could not be considered as an "aggrieved party" under S. 176 of the old Criminal Procedure Code. It was likewise held in the case reported at page 394 of Thandu Iyer's Select Decisions that an agent by oral appointment of a principal who lived in Travancore is not a party aggrieved who could complain in respect of compoundable offences committed in respect of the properties of his principal.