IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5231/2013 BETWEEN:
MR.R.C.BHAVUK S/O.LATE GOPILAL SHARMA AGED ABOUT 69 YEARS WORKING AT 8TH FLOOR ‘THE ESTATE’, NO.121 DICKENSON ROAD BANGALORE-560 042 … PETITIONER (BY SRI ARVIND KAMATH, SENIOR COUNSEL FOR MS.NAGA CHAMPA, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY INDIRANAGAR POLICE STATION BANGALORE-560 001 2. SHARATH KUMAR U.N. S/O.MR.UMASHANKAR AGED ABOUT 27 YEARS R/AT NO.19/3 NEW BINNAMANGALA INDIRANAGAR 100 FEET ROAD BANGALORE-560 038 …RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1; SRI A.N.RADHAKRISHNA, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH FIR DATED 21.06.2013 IN CRIME NO.237/2013 REGISTERED BY INDIRANAGAR POLICE STATION BEFORE THE COURT OF CCH-17, CITY COURT COMPLEX, BANGALORE CITY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought to quash the FIR in Crime No.237/2013 registered for the offences punishable under Section 323 read with Section 34 of IPC and Sections 3(iv) and 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the SC/ST Act’ for short).
2. The above proceedings are initiated based on the complaint lodged by the second respondent on 21.06.2013. In the complaint, it is alleged that his father Umashankar and his uncle Ramaraju are the owners in possession of Sy.No.78 comprising of 1 acre 19 guntas of land situated in Binnamangala Village. On 20.06.2013 at about 8.00 a.m. while he was going out of compound, he saw someone had erased WP.N0.11021/2011, which was written on the wall by him. When the complainant questioned the petitioner herein, the petitioner and others suddenly picked up quarrel and assaulted him with hands and also abused him calling out his caste saying he is not even fit to sweep the dirt.
3. Heard learned Counsel for the petitioner, learned Additional Special Public Prosecutor for respondent No.1 and learned Counsel for respondent No.2.
4. Learned Counsel for the petitioner would submit that the entire allegations made in the complaint are false to the core. The incident as stated in the complaint has not been taken place. Neither the complainant or his father and uncle are the owners nor they are in possession of any portion of the property in question. On the other hand, the documents produced by the petitioner would indicate that the aforesaid property was purchased by a partnership firm of which the petitioner was one of the partners under a registered deed of sale dated 07.07.1997 from the Vyalikaval House Building Co-operative Society Limited. The title of the property is traced in the said sale deed which discloses that the aforesaid property was acquired by the Bangalore Development Authority (‘the BDA’ for short) and with the permission of the Government of Karnataka by its order dated 24.03.1995 bearing No.HUD/114/MNJ/95, it was sold to the Vyalikaval House Building Co-operative Society Limited which inturn sold it to M/s.M.B. & Co., and M/s.M.J.Constructions of which the petitioner was the partner. In respect of the said property, the father of the complainant had interfered and therefore, the petitioner herein lodged a complaint against the father of the complainant in Crime No.435/2010 and the same was registered for the offences punishable under Sections 341, 323, 448, 506 read with 34 of IPC. The same is pending investigation. The petitioner and the other partners filed a suit against the father and uncle of the complainant in OS.No.7192/2010 for declaration and injunction in respect of the very same property and in the suit, an interim order has been passed restraining the father and uncle of the complainant from interfering with the peaceful possession and enjoyment of the said property by the petitioner herein. The said injunction order is still in operation. In the meanwhile, the father and uncle of the petitioner have filed a suit in OS.No.25916/2010 against the Commissioner of BDA and others. In the said suit, the BDA filed an application under Order 7 Rule 11 of CPC and by the order dated 20.07.2012, the plaint filed by the father and uncle of the complainant was rejected. As against the said order, his father and uncle have preferred petition in WP.No.11021/2011 and the same is pending consideration of this Court. No interim order has been passed in the said proceedings indicating that right from 1997, the petitioner and his partners are in exclusive possession and enjoyment of the properties. Under such circumstances, the allegations made in the complaint that the alleged incident took place when the complainant came out of his property and questioned about someone erasing WP.No.11021/2011 painted on the wall, on the face of it appears to be a concocted story which is far from a truth. Further, it is submitted that even though FIR is registered for the offences punishable under Sections 3(iv) and 3(v) of the SC/ST Act, in view of the above facts, none of the ingredients of the said offences get attracted to the facts of the case. Even with regard to the charge under Section 323 of IPC is concerned, the material on record indicate that the complainant did not suffer any injury nor taken any treatment to the said injury, making it evident that the entire complaint is got up solely to lay a claim over the property and to harass the petitioner by implicating him in serious charges under SC/ST Act.
5. The learned Additional Special Public Prosecutor appearing for respondent No.1-State argued in support of the impugned action contending that even if the charges under the provisions of the SC/ST Act are not made out, still the allegations made by the complainant prima facie attract the offence under Section 323 of IPC. The said offence is sought to be substantiated by a wound certificate collected by the Investigating Agency. Hence, there is no case for quashing the proceedings.
6. The learned Counsel appearing for respondent No.2 has argued in support of the impugned FIR contending that the material on record clearly indicates that the petitioner has committed the alleged acts and the matter being under investigation, there is no ground to quash the proceedings.
7. Upon considering the rival contentions and on going through the records, I am of the view that the FIR registered against the petitioner is false, mala fide and vexatious. The contesting respondent has not disputed the fact that in respect of the same property, the petitioner and other partners have acquired title which has remained unchallenged. In the wake of the decree passed by the Civil Court neither the complainant nor his father or uncle have any manner of right over the property. No doubt, writ petition filed by the father and uncle of the complainant is pending before this Court, but the said writ petition is arising out of the suit in OS.No.25916/2010 filed by the father and uncle of the complainant against the Commissioner of the BDA and others, which again indicates that the sale deed obtained by the petitioner in respect of the above property is not under challenge. Under the said circumstances, the registration of FIR against the petitioner is wholly illegal and cannot be sustained. The offences under Sections 3(iv) and 3(v) of the SC/ST Act arises only when a person not being a member of Scheduled Caste or Scheduled Tribe, wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred and wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water.
8. The facts discussed above clearly indicate that there has been no dispossession whatsoever much less any occupation of the land belonging to the ancestors of the complainant. On the other hand, the records indicate that the land in question was acquired by the BDA and was allotted to the Society and the same was alienated with the prior permission of the Government. Therefore, the offences alleged against the petitioners prima facie are not made out. Consequently, the prosecution of the petitioner for the said offences is only illegal and abuse of process of Court, which cannot be sustained.
9. Insofar as the alleged offence under Section 323 of IPC is concerned, when the occurrence itself is doubtful and the complainant itself is obliquely motivated, it is difficult to believe that such an occurrence has taken place. Even though the complainant has stated that during the occurrence he was assaulted with hands and sustained injuries, the endorsement by the Police indicates that the complaint was lodged only at 9.30 a.m. on 21.06.2013, but the incident is stated to have been taken place on 20.06.2013 at 8.00 a.m. There is nothing in the entire complaint to indicate that during the occurrence, the complainant had suffered any bleeding injury or that he had taken any treatment in any hospital. Even though the complaint was lodged on the following day, there is not even a reference therein that the complainant has been treated in any hospital. Under the said circumstances, the submission of the learned Additional Special Public Prosecutor that the Investigating Agency has collected the wound certificate also, which appears to be an another attempt to garner false evidence in support of the charges leveled against the petitioner.
10. On considering the overall facts and circumstances of the case, I am of the view that the instant complaint is filed solely as a sequel to civil disputes pending between the parties and to make out a ground to lay a claim over the property. The allegations made in the complaint do not prima facie constitute the ingredients of the alleged offences against the petitioner. Consequently, the proceedings initiated against the petitioner being false, vexatious, mala fide, obliquely motivate cannot be allowed to continue. Accordingly, the petition is allowed. The impugned FIR and all consequential proceedings arising therefrom are quashed.
Any observation made in this order shall not influence the Court dealing with any civil dispute between the parties.
In view of disposal of the petition, IA.No.1/2017 does not survive for consideration and the same is dismissed.
Sd/- JUDGE LB