IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.731/2014 BETWEEN:
K.Shivakumar S/o late Kolandappa Aged about 35 years Residing at No.2 Kolandappa Garden Gajendranagara 14th Cross, Anepalya Adugodi Post Bangalore – 560 030 …Petitioner (By Sri Tomy Sebastian, Senior Advocate a/w Sri Alwyn Sebastian, Advocate) AND:
1. State by Cubbonpark Police Represented by SPP High Court of Karnataka Bangalore – 560 001 2. Aditya Raheja Director of GSTAAD Hotels Pvt. Ltd. Situated at No.24/1 Vittal Malya Road Ward No.3 Bangalore – 560 001 ...Respondents (By Sri Vijayakumar Majage, Addl. SPP for R1; Ms. Sheeba Essa Khan, Adv. for Sri Ajesh Kumar S., Adv. for R-2) This Criminal petition is filed under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.4689/2013 on the file of the VIII ACMM, Bangalore for the alleged offences punishable under Sections 384, 379, 504, 506, 427, 447 of IPC.
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 Cr.P.C., seeking to quash the proceedings in C.C.No.4689/2013 on the file of VIII ACMM Court, Bangalore for the alleged offences punishable under Sections 384, 379, 504, 506, 427 and 447 IPC.
2. Heard the Sri. Tomy Sebastian, learned Senior Counsel for petitioner and learned Additional SPP appearing for respondent No.1-State and learned counsel appearing for the second respondent-complainant.
3. The complainant was the Director of Gstaad Hotel Pvt. Ltd. The said hotel was permitted to construct a box type drain over a public drain passing in between two pieces of properties owned by M/s. Gstaad Hotels Pvt. Ltd. Permission was accorded to the hotel by the Chief Engineer, BBMP, vide order dated 30.12.2011 bearing No.133/11-12. Under the said order, the hotel was permitted to construct box type drain without changing the alignment of public drain. One of the conditions therein was that RCC box drain should be constructed as per the directions of BBMP and the site should be available for inspection by the BBMP officials at any point of time.
4. A charge-sheet came to be laid against the petitioner alleging that on 30.03.2012, the petitioner herein unauthorisedly trespassed into the site wherein the complainant/Gstaad Hotels Pvt. Ltd., was constructing the box type drain and forcibly carried away the materials used for the construction. The further allegation was that on 03.04.2012 the petitioner came to the spot in the midnight and threatened the Security Guard and started to demolish the semi constructed box type drain. On these allegations charge-sheet was laid against the petitioner for the alleged offences punishable under Sections 384, 379, 504, 506, 427 and 447 IPC.
5. Sri. Tomy Sebastian, learned Senior Counsel appearing for petitioner submitted that the material produced by the prosecution along with the charge-sheet clearly indicate that the petitioner herein has been falsely implicated in the alleged offences without any basis. Much prior to lodging of the complaint in question, one Shivakumar, a Civil Contractor attending to the work under the complainant, had lodged a complaint before Cubbon Park police wherein it was specifically alleged that on 30.03.2012, one Mr. Chandria introduced himself as BBMP Engineer of Shantinagar Ward, came inside the project along with his team and instructed him to dismantle the materials used for construction of box type drain. When they did not stop the work, he used abusive language and dismantled the materials and loaded the same into their mini truck bearing No.KA-O1/8362 without giving any letter or notice to him.
6. The learned Senior Counsel has pointed out that apart from the said complaint, as on 30.03.2012, a status quo order was passed by this court in W.P.Nos.31739-742/2011 directing the complainant as well as BBMP officials to maintain status quo in respect of the aforesaid storm water drain. In the said circumstances, the question of complainant carrying out any further construction or the petitioner herein trespassing into the said land and dismantling the materials did not arise at all. On these grounds, he seeks to quash the proceedings contending that petitioner herein has been implicated in the alleged offences as an afterthought, four days after lodging the complaint by the contractor of the petitioner and therefore the prosecution initiated against the petitioner is an abuse of process of court and is liable to be quashed.
7. Refuting the above submissions, learned counsel appearing for second respondent and the learned Additional SPP vehemently argued that the material on record indicate that the complainant had commenced construction of box type drain pursuant to the order issued by the Chief Engineer of BBMP. The said construction being lawful in all respects, the petitioner had no authority either to enter the construction site and threaten the workers or to take away the material used for the construction. The material collected during investigation clearly disclose that at the instance of the petitioner, materials used for construction of box type drain were taken away, therefore, there is prima-facie material constituting offences under Sections 379, 504, 427 and 447 IPC and hence, there is no reason to quash the impugned proceedings initiated against the petitioner.
8. I have considered the submissions made by the learned counsels appearing for respective parties and have perused the records.
9. There is no dispute with regard to the fact that vide order dated 30.12.2011, the complainant namely M/s. Gstaad Hotels Pvt. Ltd., was permitted to construct a box type drain over the public storm water drain passing in between two properties held by the complainant. It is also not in dispute that by order dated 30.03.2012, an order of status-quo was issued by this court directing the parties to maintain status-quo in respect of the aforesaid storm water drain. Perforce of this order, subsequent to 30.03.2012, no construction could have been carried on in respect of the drain in question save at the peril of committing contempt of the status quo order passed by this court. In that background, if the materials produced along with the charge-sheet are analysed, it goes to show that on 31.03.2012 i.e., subsequent to passing of status-quo order passed by this court, the Contractor engaged by the complainant had lodged a complaint before Cubbon Park Police Station, wherein it was specifically alleged that the construction work was stopped by one Mr. Chandria who introduced himself as BBMP Engineer and further it was unequivocally stated in that complaint that at the instance of BBMP officials, the construction materials were dismantled and were loaded into a mini truck bearing No.KA01/8362 without giving any letter or notice to him. The said complaint is a part of the charge-sheet which goes to show that the construction work was stalled on 30.03.2012 and the materials used for the construction were dismantled and were taken away on the same day.
10. It is not the case of complainant that subsequent to 30.03.2012, the complainant had carried out any further construction of box type drain at the work site. In view of the status-quo order passed by this court dated 30.03.2012, in W.P.Nos.31739-742/2011, the complainant could not have executed any such work. Under the said circumstances, the question of the petitioner herein trespassing into the work site once again and carrying away the materials used for construction appears to be highly unbelievable, improbable and cannot be accepted in the light of positive material discussed above.
11. The argument of the learned counsel for the respondent that the complaint contains a allegation that on 04.04.2012, the petitioner herein threatened to demolish top three floors of the building, also appears to be far from truth for the reason that the charge-sheet is filed only in respect of the incident that is alleged to have taken in respect of box type drain constructed by the complainant and not with regard to the construction of three floors. The substance of the accusation in charge- sheet is that on 30.03.2012, at 10.30 a.m., when the box type drain was under construction, the petitioner herein trespassed into the construction site and threatened the employees and carried away the materials used for the construction. Therefore, the submission of learned counsel for respondent being contrary to the charge- sheet cannot be accepted.
12. The material produced along with the charge sheet prime facie discloses that the material used for construction was carried away by one Mr.Chandria and other officials of BBMP on 30.03.2012. In that view of the matter, the submission of charge-sheet against the petitioner on the purported allegation appears to be purely an afterthought. There is absolutely no material on record to show that the petitioner herein carried away the materials used for construction. Insofar as the offence alleged against the petitioner under Section 447 IPC is concerned, the very order relied upon by the complainant empowers the BBMP officials to visit and inspect the site at any time of the day and there is no dispute as to the fact that petitioner was a Corporator who was also entitled to visit the site. The other conditions of the order specifically recite that the property in question including the storm water drain and box type drain proposed to be constructed was the property of BBMP and not of the complainant. Under the said circumstances, there could not have been any trespass by any of the officials of BBMP and Corporator of the BBMP in respect of BBMP property. In that view of the matter, Section 447 IPC cannot stand against the petitioner.
13. So far as Section 379 IPC is concerned, material on record clearly indicate that materials used for construction were dismantled and carried by one Mr. Chandria and other BBMP officials on 30.03.2012. Therefore, there is no material in support of the charge against the petitioner for the offence punishable under Section 379 IPC.
14. The allegations constituting the offences under Sections 504, 506, 427 and 384 IPC, are purely an afterthought. Moreover, the complainant and BBMP officials having been bound by the order of status-quo issued by this court dated 30.03.2012, in W.P.Nos.31739-742/2012, the prosecution of the petitioner for the aforesaid offences is wholly illegal and an instance of clear abuse of process of court. As a result the impugned action initiated against the petitioner is liable to be quashed.
15. Accordingly the Criminal Petition is allowed.
The proceedings in C.C.No.4689/2013 on the file of VIII ACMM Court, Bangalore for the offences punishable under Sections 384, 379, 504, 506, 427 and 447 IPC, is quashed insofar as the petitioner is concerned.
Sd/- JUDGE Np/-