IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3623/2013 BETWEEN:
1. Smt. Gowramma, W/o Gowdara Basavarajappa, Aged about 56 years.
2. Sri. G.Prasanna Kumar, W/o Gowdara Basavarajappa, Aged about 28 years.
3. Kum.G.B.Rekha, D/o Gowdara Basavarajappa, Aged about 29 years.
All are residing at Anekonda, Behind Eshwara Temple, Davangere-577001. …PETITIONERS (By Sri. T.Rajaram, Advocate) AND:
1. State of Karnataka, Sub-Inspector of Police, Law & Order, RMC Yard Police Station, Davangere-577003.
2. Sri.G.B.Siddesh, S/o Gowdara Basavarajappa, Agriculturist, Aged about 31 years, Residing at Anekonda, Behind Eshwara Temple, Davangere-577001. ...RESPONDENTS (By Sri. I.S.Pramod Chandra, SPP-II for R-1, Sri.Chidambara.G.S., Adv. for R-2) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the FIR No.5/2012 dated 12.1.2012 filed by the 1st respondent which is produced and marked at Annexure-A and charge sheet No.7/2012 dated 25.4.2012 produced and marked at Annexure-B on the file of the J.M.F.C.-II, Davanagere in C.C.No.1762/2012 marked at Annexure-C and all further proceedings before the same which are liable to be quashed.
This Criminal petition coming on for admission, this day, the Court made the following:
O R D E R This petition is filed under Section 482 of Cr.P.C. seeking to quash the charge sheet in Crime No.7/2012 presently pending in C.C.No.1762/2012 on the file of JMFC-II, Davangere for the alleged offence punishable under Section 456 r/w Section 34 of IPC.
2. Petitioner No.1 is the mother, petitioner No.2 is the brother and petitioner No.3 is the sister of respondent No.2 (complainant). The complainant lodged a report before Davangere police on 12.1.2012 alleging that on 11.1.2012 when he had gone to Manipal hospital, the petitioners herein committed lurking house trespass into his house. After investigation, charge sheet is laid against all the petitioners for the offence punishable under Section 456 r/w Section 34 of IPC.
3. The learned counsel for the petitioners would submit that the house in question in which the alleged trespass is said to have been taken place is the joint property of the petitioners and the second respondent in respect of which, the petitioners herein had filed a suit for partition in O.S.No.68/2011. The said suit was decreed by judgment and decree dated 21.7.2012 and the petitioners and the second respondent each were allotted 1/5th share in the partible properties including the house in question. Therefore, there was no question of the petitioners committing trespass in respect of their own properties. Even with regard to the material produced by the prosecution, the learned counsel would submit that the said material even if it is accepted un-controverted would not make out the ingredients of the offence under Section 456 of IPC. In the spot panchanama conducted on the very day on the submission of the FIR, the investigation agency did not find any clues or traces of the alleged trespass. Even according to the witnesses, these petitioners opened the latch of the rear door and gained entry into the house. The said allegation does not satisfy the ingredients of Section 456 of IPC. Further, referring to the observations made by the Civil Court in O.S.No.68/2011, the learned counsel would submit that even the property documents in respect of the said property stood in the name of the petitioner No.1. Therefore, there was no question of petitioners committing any act of trespass into the house in question as alleged in the chargesheet.
4. Learned counsel for the respondent No.2 has argued in support of the impugned charges and would submit that the allegations made against the petitioners are sought to be supported by convincing evidence and therefore, there is no reason to quash the proceedings.
5. Having heard the learned counsel for the parties and on going through the charge sheet papers, it is noticed that the property in question is the joint property of the petitioners and the second respondent. In O.S.No.68/2011, the Civil Court has recorded a categorical finding that the RTC of the said property was standing in the name of the petitioner No.1. In the said suit it is held that the petitioners as well as the respondent No.2 are entitled to 1/5th share each in the house in question as well as other partible properties detailed in the said suit.
6. In order to constitute an offence of lurking house trespass, such a trespass should have been done by some person who has a right to exclude or eject the trespasser from the building, tent or vessel, which is the subject matter of the trespass.
7. In the instant case, undisputably, the petitioners have a right in the property and they had a right to exclude any other outsider gaining entry into the house in question being the lawful joint owners thereof. Therefore, even if the allegations made in the complaint are uncontroverted, the said allegations do not make out a case of house trespass as defined in Section 443 of IPC. That apart, the material on record also indicate that the house in question was not locked from inside. According to the complainant himself, in his absence the petitioners herein opened the latch of the rear door and gained entry into the house. Apparently, for the said reason in the spot mahazar it is noticed that the Investigating Officer did not find any traces of forceful entry into the said house. All these circumstances, therefore, clearly indicate that the petitioners have not committed any offence rendering them liable for the offence under Section 456 of IPC.
Therefore, on fact as well as on law, I am of the opinion that prosecution of the petitioners, on the face of the allegations contained in the charge sheet, is wholly illegal and an abuse of process of law.
For the above reasons, petition is allowed. The impugned proceedings initiated against the petitioners, pending on the file of JMFC-II, Davanagere in C.C.No.1762/2012, are hereby quashed.
Sd/- JUDGE bkp