IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2193/2019 BETWEEN:
1. DEEPAK HEGDE S/O VASANTHA HEGDE AGED ABOUT 25 YEARS R/AT KRINCHABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK UDUPI – 574 104.
2. MADHUKAR SHETTY S/O CHITRU SHETTY AGED ABOUT 28 YEARS R/AT KRINCHABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK UDUPI – 574 104.
3. PRASANTH SHETTY S/O VASANTH SHETTY AGED ABOUT 25 YEARS R/AT KRINCHABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK, UDUPI – 574 104.
4. AKSHATH SHETTY S/O JAYAKAR SHETTY AGED ABOUT 24 YEARS R/AT KRINCHABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK UDUPI – 574 104.
5. NISHITH POOJARY S/O RAMANANDA KARANDUR AGED ABOUT 30 YEARS R/AT 1/21, PADAVINANAGADAI KAVOOR, KONCHADI MANGALORE, D.K. – 575 008.
6. PRASANTH SHETTY S/O SADHU SHETTY AGED ABOUT 36 YEARS R/AT KRINCHABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK UDUPI – 574 104.
7. KEERTHAN SHETTY S/O JAYAJAR SHETTY AGED ABOUT 22 YEARS R/AT BAGANABETTU HOUSE NINJUR POST & VILLAGE KARKALA TALUK UDUPI – 574 104.
8. RAJESH KOTIAN S/O LATE NAGAPPA POOJARY R/AT KOTIAN NIVASA NEAR BRAHMASTANA NADSAL VILLAGE PAUDIBIDRI, UDUPI TALUK & DISTRICT – 574 111.
(BY SRI. ARUNA SHYAM M., ADVOCATE) AND:
1. STATE OF KARNATAKA BY SHIRVA, POLICE STATION (REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001) ... PETITIONERS 2. SANDESH SHETTY S/O LATE JAYANTH SHETTY AGED ABOUT 32 YEARS R/AT MOOKAMBIKA NILAYA NINJOOR POST & VILLAGE UDUPI – 574 101.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1; SRI. VIKAS M. ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDE SECTION 482 CR.P.C PRAYING TO QUASH THE FIR IN CRIME NO.13/2019 AND COMPLAINT ON THE FILE OF THE RESPONDENT SHIRVA POLICE (THE HON'BLE PRINCIPAL CIVIL JUDGE (Sr.Dn.) AND C.J.M COURT, UDUPI DISTRICT, UDUPI FOR THE OFFENCE U/S.395 AND 427 OF IPC AND ALL FURTHER PROCEEDINGS PRUSUANT THERETO.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who have been arraigned as accused in Crime No.13/2019 registered by Shirva Police Station, Udupi for the offences punishable under Sections 395 and 427 of IPC pending on the file of Prl. Civil Judge (Sr.Dn.) & CJM, Udupi, are before this Court for quashing of said proceedings.
2. Case of the prosecution is that on 10.02.2019 at 8.30 p.m. complainant who is running S.S.Bar and Restaurant, Kattingeri, was summoned by the petitioners, who had arrived in a Ertiga Car and at their request he came out of the bar counter and while talking to accused Nos.1 to 3 with regard to previous day of incident, other accused got down from the vehicle and on sensing there was some unusual development was taking place, complainant was trying to call his brother over phone and at that point of time he was assaulted by one of the accused persons and accused No.3 snatched the mobile of complainant and thereafter, they ransacked the liquor bottles in the said bar and restaurant. It is also alleged that on the previous day Manager of the Bar by name Sri.Sujindra had been asked by accused Nos.1 and 2 to serve liquor after the bar came to be closed and on account of his refusal to serve liquor, accused Nos.1 and 2 had vengeance and as such, they came and assaulted the complainant. Hence, complainant had sought for suitable action being taken against accused persons.
3. Today a memorandum of compromise petition has been filed under Section 320 r/w 482 of Cr.P.C. whereunder petitioners and second respondent have entered into a settlement by stating thereunder that due to misunderstanding between petitioners and complainant, the complaint in question had been lodged by second respondent and they are residents of same locality and in their best interest they have amicably settled their dispute and complainant is not interested in proceeding with the complaint lodged by him.
4. Second respondent has also filed an affidavit to the said effect and it has been stated thereunder that he has no objection for proceedings initiated by him against petitioners, which is now pending in Crime No.13/2019 being quashed.
5. Sri.Aruna Shyam, learned counsel appearing for petitioners would reiterate the grounds urged in the petition.
6. Petitioner Nos.2, 5 and 7 and second respondent are present before Court and they reiterate the contents of memorandum of compromise petition entered into between the parties. Second respondent present before Court submits that out of his own free will and volition, without any threat, force or coercion he has affixed his signature to the memorandum of compromise petition. To establish the identity of the parties present before Court, photocopies of identity cards issued by the statutory authority is produced along with memorandum of settlement/ compromise petition. In token of having identified the parties present before Court, learned Advocates have also affixed their signatures to the memorandum of compromise petition.
7. Sri.S.Rachaiah, learned HCGP appearing for the first respondent-State would oppose the compounding of offences contending that provision of Section 395 Cr.P.C., which has been invoked against petitioners is a crime against society and a heinous offence and as such, said offence should not be allowed to be compounded and despite parties entering into settlement and it would not be apt and appropriate to recognize such compromise. Hence, he prays for dismissal of the petition.
8. Hon’ble Apex Court in the case of NARINDER SINGH vs. STATE OF PUNJAB & ANOTHER reported in (2014) 6 SCC 466 has held where parties have reached settlement and prayer is made for quashing of criminal proceedings the guiding factor in such cases would be; (i) to secure the ends of justice; (ii) to prevent any abuse of the process of any court. Even in circumstances where predominantly case is of the civil nature, this Court would not hesitate in quash such proceedings particularly when parties have entered into settlement.
9. Sri.S.Rachaiah, learned HCGP is right in contending that where the offence alleged against petitioners relates to an offence having an impact on the society, such proceedings should not be quashed. To ascertain or examine the said issue, allegations made in the complaint will have to be seen and if the answer is in the affirmative, this Court would desist from invoking extraordinary jurisdiction for quashing of such proceedings. In the instant case, as noticed hereinabove and at the cost of repetition, when the allegations made in the complaint are perused it would not disclose the ingredients of Section 395 Cr.P.C. being present, but on the other hand, there is no such allegation of dacoity alleged against petitioners. The legislature has made the offence of dacoity punishable for which four stages should occur: (i) where five or more persons assemble for the purpose of committing dacoity; (ii) when one makes preparation to commit dacoity; (iii) third and fourth stage can be taken within the definition of dacoity as defined under Section 391 of IPC i.e., the stage of attempting to commit and stage of actual commission of dacoity and commission of robbery. If these ingredients are present and found from the allegations made in the complaint or by meaningful reading of the complaint it would disclose these ingredients are present then it would attract Section 395 of Cr.P.C. However, in the instant case, allegations made in the complaint would disclose that is relates to an incident that occurred on 09.09.2019 i.e., previous day of the complaint i.e., refusal by the bar manager to serve liquor to the petitioners after closure timings of the bar. Hence, on the next day, complainant is said to have been assaulted by the petitioners- accused persons. Since complainant wanted to call his brother to protect himself from probable assault as stated by him in the complaint itself, accused persons are said to have snatched mobile phone from the complainant so as to prevent him from calling his brother. This allegation would not attract the definition of dacoity or in other words, ingredients of Section 395 of Cr.P.C. would not be attracted. To put it differently, even if the allegations made in the complaint were to remain unrebutted, it would not lead to his conviction for the offence of dacoity i.e., Section 395 of Cr.P.C. Hence, this Court is of the considered view that contention of Sri.S.Rachaiah, learned HCGP cannot be accepted and it stands rejected.
10. In the light of complainant having agreed to withdraw the allegations made in the complaint and taking into consideration that petitioners and accused persons are from the same locality and they intend to live in peace and harmony, continuation of proceedings against petitioners by taking it to its logical end would not result in their conviction, since possibility of complainant supporting the case of prosecution is too remote and as such petitioners cannot be made to undergo the ordeal of trial. In the instant case, as noticed hereinabove, parties have settled their dispute and intend to live in peace and harmony, which is a good ground to accept the plea of petitioners.
Hence, I proceed to pass the following:
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending against petitioners in Crime No.13/2019 registered for the offences punishable under Sections 395 and 427 of IPC by Shirva Police Station on the file of Prl. Civil Judge (Sr.Dn.) & CJM, Udupi, is hereby quashed and petitioners are acquitted of aforesaid offences.
(iii) The Superintendent of Jail, Hiriyadka Jail, Udupi, shall release forthwith accused Nos.1, 3, 4, 6 and 8 (Deepak Hegde, Prasanth Shetty, Akshath Shetty, Prasanth Shetty, Rajesh Kotian respectively), if not required in any other case.
(iv) Jurisdictional Magistrate shall also take immediate steps and ensure release of accused Nos.1, 3, 4, 6 and 8 forthwith as ordered hereinabove.
(v) Registry is directed to furnish operative portion of the order to learned counsel appearing for petitioner as well as learned HCGP free of cost.
SD/- JUDGE DR