IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA WRIT PETITION NOs.34041 & 34225 OF 2017 (GM-RES) BETWEEN:
1. M/S. AVENUE SUPERMARTS LTD.
A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956 ANJANEYA CO-OP. HOUSING SOCIETY LTD., ORCHARD AVENUE OPP. HIRANANDANI FOUNDATION SCHOOL POWAI, MUMBAI – 400 076 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR.JUDE FERNANDEZ.
2. MR. PRAKASH PACHISIA SENIOR MANAGER AGED 54 YEARS AVENUE SUPERMARTS LTD.
ANJANEYA CO-OP. HOUSING SOCIETY LTD. ORCHARD AVENUE, OPP. HIRANANDANI FOUNDATION SCHOOL POWAI, MUMBAI – 400 076.
... PETITIONERS (BY SRI B.V.SHANKAR NARAYANA RAO, FOR SRI GOUTHAM CHAND S.F., ADVs.,) AND:
1. THE STATE OF KARNATAKA THROUGH POLICE SUB-INSPECTOR BANGALORE METROPOLITAN TASK FORCE N.R.SQUARE, BENGALURU – 560 002.
2. SRI N.R. RAMESH MAJOR IN AGE S/O. LATE NARAYANARAJU NO.2910, 14TH A CROSS BANASHANKARI II STAGE BENGALURU – 560 070.
…RESPONDENTS (BY S. RACHAIAH, HCGP FOR R1, R2 SERVED & UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRYAING TO QUASH THE ENTIRE PROCEEDINGS IN CRIME NO.009/2017 REGISTERED ON THE FILE OF THE IV ACMM COURT, BANGALORE CITY, VIDE ANNEX-R AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioners and also the learned High Court Government Pleader for the respondent - State. Perused the records.
2. The petitioner has sought for quashing of Crime No.9/2017 registered by the Bengaluru Metropolitan Task Force (for short ‘BMTF’), in turn registered on the file of the IV ACCM Court, Bengaluru City.
3. Learned Counsel for the petitioners drawn the attention of this Court to the registration of FIR by the BMTF under Sections 441 of KMC Act, 120(B), 217, 409, 468 and 420 r/w. 34 of IPC on the basis of the first information report dated 16.5.2017 filed by the second respondent. The second respondent though served with notice, remained absent before this Court.
4. It is undisputed fact and law that, the BMTF gets jurisdiction only when the offences are committed under the KMC Act as invoked by BMTF police in connection with this particular case. This Court while dealing with the similar matter in Criminal Petition No.4028/2014, disposed of on 08.09.2014, has discussed in detail about the jurisdiction of BMTF to register any case exclusively under Indian Penal Code and investigate the matter without there being any offence under the KMC Act or other enactment under which it is empowered to register and investigate the matter. In the earlier order in Criminal Petition No.5340/2012, this Court had an occasion to deal with in detail the powers of BMTF. At paragraph 15 of the said order, the powers of the BMTF has been categorically stated, which reads thus:-
“15. Thus, from the above discussions, it is clear that the object of constituting BMTF was to protect the public properties and it is empowered to detect any unauthorized occupation or construction over the public property and to launch prosecution against any persons who indulge in such activities. Of course, as indicated in the notification dated 28.08.1997 extracted supra, the BMTF is also empowered to identify the Officers and officials of the organizations who collude with the public in creating and fabricating documents and thereby cause loss to the funds of the authorities and to launch prosecution against such persons. Thus, reading of various notifications issued by the State Government in relation to the constitution, objects, powers and functions of BMTF, makes it clear that BMTF has no jurisdiction to register the case and investigate any offences regarding unauthorized or illegal construction on private properties. It has no power to register and investigate cases involving I.P.C. offence/s only”
and ultimately at paragraph 20, this Court has also held that:-
“20. Initiation of criminal prosecution and summoning of a person to answer charges results in various consequences and it affects the right to liberty of such person/s. Therefore, such actions should be in accordance with the law and should be by a persons or authority recognized by law, as otherwise it would offend the right guaranteed under Article 21 of the Constitution of India. It is well settled rule of interpretation that penal statutes are to be interpreted strictly. It is in this background the power and jurisdiction of BMTF to register and investigate the cases and to launch prosecution has been examined in the light of the purpose for and the object with which the said Force was constituted and was conferred the status of ‘Police Station’, as also in the light of the powers conferred and functions enumerated. ”
5. Learned Counsel for the petitioners has brought to the notice of this Court that, the offence under Section 441 of KMC Act is not at all constituted as it is evident from the FIR. Registration of the case itself shows that Section 441 of KMC Act is not at all attracted. If Section 441 of KMC Act is not attracted, the BMTF has no jurisdiction to investigate such matters. In this background, it is relevant to note that Annexure-Q, which is the information submitted to the BMTF by the second respondent, wherein it is categorically stated that the Corporation authorities have without any materials on record changed ‘A’ katha pertaining to Revenue Sy.No.1/2 of Vajarahalli village in favour of the petitioner and the petitioner on the basis of such katha, even without converting the said property for commercial purpose, running business in the said property in the name and style “D-Mart”. Therefore, he requests the BMTF to take appropriate action.
6. What is contemplated under Section 441 of KMC Act, which is a penal provision reads as follows:
“441. Penalty for unauthorised use of corporation property. Whoever dishonestly misappropriates or converts to his own use any corporation property or puts into improper or unauthorised use such property shall, on conviction, be punished with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both.”
7. In order to attract this particular provision as invoked by BMTF police, the property should belong to the Corporation and that property should have been put into improper or unauthorized use by any person, then only the said provision is attracted. Admittedly, in this particular case, there is no whisper in Annexure-Q or in the FIR that the property belonged to the Corporation.
8. Under the above said circumstances, when the offence under Section 441 of KMC Act is not constituted and no allegations are made, the BMTF does not get jurisdiction to investigate the matter. What remains is that the other provisions under the Indian Penal Code, the BMTF has no jurisdiction to investigate the matter, if there are any offence committed under the KMC Act or any other Act also the BMTF has no powers to investigate the matter.
9. Therefore, prima facie, on looking to the above said records, the BMTF police have no jurisdiction to investigate the matter. In the above said circumstances, I proceed to pass the following:
ORDER (i) Writ petitions are allowed.
(ii) Registration of the case in Crime No.9/2017 by the BMTF police is not maintainable and the same is liable to be quashed. Accordingly, Crime No.9/2017 registered by the BMTF police is hereby quashed. However, the State is at liberty to take appropriate action if available in accordance with law.
Sd/- JUDGE SA