IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO. 62739/2016(GM-RES) C/W CRIMINAL PETITION NO.3630 OF 2015 CRIMINAL PETITION NO.1312 OF 2018 WRIT PETITION NO.24822/2018(GM-RES) IN WRIT PETITION NO. 62739/2016 BETWEEN:
SRI PRABHUGOUD B TUMBIGI NO.12, “KRISHNA ENCLAVE” APARTMENT, 2ND CROSS, NEHRU NAGAR, BANGALORE 560020 ... PETITIONER (BY SRI: PRABHUGOUD B TUMBIGI, PARTY-IN-PERSON) AND 1. THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY, HOME DEPARTMENT VIDHAN SOUDHA, BANGALORE 560001 2. THE COMMISSIONER OF POLICE INFANTRY ROAD, BANGALORE 560001 3. THE STATE OF KARNATAKA REP BY SHESHADRIPURAM POLICE BANGALORE 560020 4. SEEMA VIJAY BAFNA W/O VIJAY BAFNA, NO.12, “KRISHNA ENCLAVE” APARTMENT, 2ND CROSS, NEHRU NAGAR, BANGALORE 560020 ... RESPONDENTS (BY SRI: NASRULLA KHAN, HCGP FOR R1 TO R3; SRI: NAVEENNANDA D.T., ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CRIMINAL PROCEDURE CODE PRAYING TO CALL FOR RECORDS; ISSUE WRIT OF MANDAMUS TO TAKE ACTION AGAINST THE R-3 FOR NON-REGISTERING THE COMPLAINT FILED BY THE PETITIONER ON 1.6.2016 VIDE ANNEX-N AND 9.6.2016 VIDE ANNEX-A AGAINST THE R-4 AND OTHERS. QUASH THE FIRST INFORMATION REPORT AT ANNEX-N IN CRIME NO.155/2016 REGISTERED BY THE R-3 SHESHADRIPURAM POLICE, BANGALORE UNDER SECTIONS 323 AND 354 OF THE INDIAN PENAL CODE; AWARD COMPENSATION TOWARDS MENTAL AGONY AND LOSS OF AMOUNT ETC., BY WAY OF DAMAGES TO THE PETITIONER.
IN CRIMINAL PETITION NO.3630 OF 2015 BETWEEN 1. SRI PRABHUGOUD TUMBIGI S/O BASAVANTRAYAGOUD, AGED ABOUT 40 YEARS, 2. SRI H.V.MADALLI S/O VENKAPPA, AGED ABOUT 65 YEARS, BOTH R/AT,NO.12,KRISHNA ENCLAVE, SOUTH PARK ROAD, NEHRU NAGAR, SHESHADRIPURAM, BANGALORE 560020 3. SRI. SANTHOSH GADAD S/O PRABHAPPA GADAD, AGED ABOUT 30 YEARS, MARUTHI NAGAR BETAGERI, NARASAPUR, GADAG DISTRICT-582102.
(BY SMT: RACHITA NANAIAH M, ADVOCATE) AND 1. STATE OF KARNATAKA BY SHESHADRIPURAM POLICE BANGALORE REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX, BANGALORE 560001 ... PETITIONERS 2. MANOHAR SOLANKI S/O CHAMPALAL SOLANKI, AGED ABOUT 35 YEARS, NO.12, KRISHNA ENCLAVE SOUTH PARK ROAD, NEHRU NAGAR, SHESHADRIPURAM, BANGALORE 560020 (BY SRI: NASRULLA KHAN, HCGP FOR R1;
... RESPONDENTS SRI: MANOHAR SOLANKI-R2, PARTY-IN-PERSON) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS WHO ARE THE ACCUSED NO.1 TO 3 IN C.C.NO.6220/2015 ON THE FILE OF THE HON'BLE VIII A.C.M.M., BANGALORE AND DISMISS THE COMPLAINT.
IN CRIMINAL PETITION NO.1312 OF 2018 BETWEEN:
1. MR VIJAY BAFNA @ VIJAY KUMAR BAFNA S/O. MR. D C BAFNA, AGED ABOUT 50 YEARS, BUSINESSMAN 2. MRS. SEEMA VIJAY BAFNA W/O. MR VIJAY BAFNA AGED ABOUT 45 YEARS, HOME MAKER, BOTH ARE R/O. C-205, MANTRI GREENS APARTMENTS, SAMPIGE ROAD, MALLESHWARAM, BANGALORE 560003 (BY SRI: NAVEENNANDA D T, ADVOCATE) AND STATE OF KARNATAKA BY SHESHADRIPURAM POLICE BANGALORE CITY, THROUGH THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DR. AMBEDKAR VEEDHI, BAGNALROE 560001 (BY SRI: NASRULLA KHAN, HCGP FOR R1;
... PETITIONERS ... RESPONDENT SRI: PRABHUGOUD.B.TUMBIGI-R2, PARTY-IN-PERSON) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.07.2017 PASSED BY THE LVI ADDL.C.M.M., BENGALURU TAKING COGNIZANCE AGAINST THE PETITIONERS HEREIN IN C.C.NO.17781/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 323, 324, 427, 504 AND 506 R/W 34 OF IPC AND FURTHER TO QUASH ALL FURTHER PROCEEDINGS IN C.C.NO.17781/2017 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 323, 324, 427, 504 AND 506 R/W SEC.34 IPC PENDING ON THE FILE OF LEARNED LVI ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY, AT BANGALORE, AS AGAINST THE PETITIONERS.
IN WRIT PETITION NO.24822/2018 BETWEEN:
SRI MANOHAR SOLANKI S/O SRI C.B.SOLANKI, AGED ABOUT 41 YEARS RESIDING AT NO.S1/12, KRISHNA ENCLAVE, SOUTHPARK ROAD, NEHRU NAGAR, BENGALURU-560020.
... PETITIONER (BY SRI: MANOHAR SOLANKI, PARTY-IN-PERSON) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME DEPARTMENT, VIDHANSOUDHA, BENGALURU-560001.
2. COMMISSIONER OF POLICE INFANTRY ROAD, BENGALURU-560001.
3. THE STATE OF KARNATAKA REPRESENTED BY SESHADRIPURAM POLICE, BENGALURU-560020.
4. PRABHUGOUDA B TUMBIGI S/O.BASAVANATRAYAGOUDA, MAJOR IN AGE, RESIDING AT NO.12/8, KRISHNA ENCLAVE, 2ND CROSS, NEHRU NAGAR, BENGALURU-560020.
... RESPONDENTS (BY SRI: NASRULLA KHAN, HCGP FOR R1 TO R3;
SRI: PRABHUGOUD.B.TUMBIGI-R2, PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE 1973 PRAYING TO CALL FOR RECORDS; QUASH THE ENTIRE PROCEEDINGS BEARING C.C.NO.26215/2017 PENDING ADJUDICATION BEFORE THE LEARNED LVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BANGALORE FOR THE OFFENCE ALLEGED UNDER SECTION 506 OF THE INDIAN PENAL CODE AT ANNEXURE-U; TO TAKE ACTION AGAINST PRABHUGOUDA B TUMBIGI (4TH RESPONDENT) FOR MISUSING THE INTERIM ORDERS PASSED BY THIS HON'BLE COURT IN WRIT PETITION NO.62739/2016 AT ANNEXURE-L AND TO TAKE ACTION AGAINST THE 3RD RESPONDENT FOR HAVING REGISTERED CASES AND DELIBERATELY FILED FALSE CHARGE SHEETS AGAINST THE PETITIONER WITHOUT CONDUCTING ANY INVESTIGATION IN CR.NO.169/2016 AT ANNEXURE-N & P AND IN CR.NO.016/2017 AT ANNEXURE-S AND T; ISSUE DIRECTION TO TAKE ACTION AGAINST PRABHUGOUDA B TUMBIGI (4TH RSPONDENT) FOR COMMITTING UNLAWFUL AND HEINOUS ACTS AGAINST THE PROSECUTION WITNESSESS IN BLATANT VIOLATION OF CONDITIONS OF BAIL GRANTED IN CC.NO.6220/2015 AT ANNEXURE-B; AWARD COMPENSATION TOWARDS THE MENTAL AGAONY, HARASSMENT AND LOSS OF AMOUNT ETC., BY WAY OF DAMAGES TO THE PETITIONER HEREIN.
THESE PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioners in these proceedings are the residents of an apartment complex by name ‘Krishna Enclave’ situated at Nehrunagar, Bengaluru.
The petitioner in W.P.No.62739/2009 and the petitioner in W.P.No.24822/2018 are both Advocates by profession practicing in Bengaluru. The apartments wherein the petitioners are residing along with their family members consist of 12 flats. The petitioner in W.P.No.62739/2006 is residing in Flat No.12/8 and the petitioner in W.P.No.24822/2018 is residing in Flat No. S1/12.
2. On 09.06.2016, Prabhugoud Tumbigi-petitioner in W.P.No.62739/2006 lodged a complaint before Seshadripuram police alleging that one Manohar Solanki-petitioner in W.P.No.24822/2018 and his sister Seema Bafna and her husband Vijay Bafna are intentionally leaving their dog in the corridors, basement and terrace of their apartment and in this regard, he had given a complaint against them on 2.06.2016. On 09.06.2016, at about 6.00 p.m., once again, the above said persons left the dog and it came to bite the petitioner – Prabhugoud Tumbigi and when he requested them to hold the dog, Manohar Solanki and his sister and brother-in-law threatened the petitioner with dire consequences. Seshadripuram Police having failed to take action in respect of the said complaint, he filed W.P.No.62739/2009 seeking a writ of mandamus to take action against the third respondent viz., Seshadripuram police for not registering the complaint filed by him on 1.6.2016 and 09.06.2016. In the said petition, he also sought to quash the FIR registered against him in Cr.No.155/2016 at the instance of the aforesaid Manohar Solanki and his sister.
3. W.P.No.24822/2018 is filed by the aforesaid Manohar Solanki –another Advocate residing in the same apartment. According to him, on 1.06.2016, Prabhugoud B. Tumbigi attacked his sister Seema Bafna, his brother-in-law Vijay Bafna and his nephew Chi. Naman Bafna a minor and grievously injured them. On the same day, a complaint was given by his sister and brother-in-law against the atrocities of Prabhugoud B. Tumbigi and in turn Prabhugoud B. Tumbigi gave a counter complaint against them. The complaint given by the petitioner, his sister and brother-in-law was registered in NCR No.39/2016 and the counter complaint given by Prabhugoud B. Tumbigi was registered as NCR 41/2016. According to him, third respondent – Seshadripuram police failed to take cognizance against Prabhugoud B. Tumbigi, who was continuing to trouble and threaten his sister and her family staying in the same apartment. Hence, he sought action against aforesaid Prabhugoud B. Tumbigi-the petitioner in W.P.No.62739/2016 for misusing the orders passed in W.P.No.62739/2016 and also for a direction to the third respondent viz., Seshadripuram police for registering a case against the petitioner in Crime No.16/2017.
4. Crl.P.No.1312/2018 is filed by Sri. Vijay Bafna and Seema Bafna- brother-in-law and sister of aforesaid Manohar Solanki against Prabhugoud B. Tumbigi. In the said petition, they have sought to set-aside the order dated 04.07.2017 passed by the LVI Addl. Chief Metropolitan Magistrate, Bengaluru taking cognizance against the petitioners for the offences punishable under sections 341, 323, 324, 427, 504, 506 r/w 34 Indian Penal Code in C.C.No.17781/2017 and to quash the said proceedings. According to them, on 01.06.2016, respondent No.2- Prabhugoud B. Tumbigi lodged a complaint against them alleging that on 9.30 p.m. while he returned from his office and was parking his vehicle in the parking lot, the petitioners and their minor son who were also in the parking area, on seeing aforesaid Prabhugoud B. Tumbigi(respondent No.2) in Crl.P.No.1312/2018, asked their minor son to let loose the dog from his clutches and immediately, the dog ran towards respondent No.2 and when he screamed to hold the dog, petitioners asked the minor son not to hold the dog and thereafter, they abused the second respondent in filthy words and caught hold of collar of his shirt and assaulted him with hands and when respondent No.2 tried to escape from their clutches, petitioner No.2 and her minor son held respondent No.2 and went on assaulting him on his neck, back and in the meanwhile Sri. Manohar Solanki came to the spot holding an iron rod and started assaulting him and tore his shirt. The complaint lodged by second respondent in Cr.No.169/2016 having culminated in the charge sheet against the petitioners therein, the petitioners have sought to quash the proceedings under Section 482 Cr.P.C.
5. Crl.P.No.3630/2015 is filed by the aforesaid Prabhugoud B. Tumbigi, one H.V. Madalli and his car driver against Seshadripuram police and aforesaid Manohar Solanki seeking to quash the entire proceedings registered against them in C.C.No.6220/2015. The said proceedings are arising out of the complaint lodged by Sri.Manohar Solanki in respect of the incident that is alleged to have been taken place on 22.07.2014 at about 8.00 a.m. in the terrace. In the said complaint, it is stated that on 22.07.2014 at about 8.00 a.m., on hearing commotion in the terrace, he went upstairs and the second respondent viz., Prabhugoud Tumbigi, his father-in-law and their car driver were breaking open the door lock of the bathroom and when the second respondent (Manohar Solanki) questioned this, all of a sudden, he was assaulted with a spanner and iron club on his head causing grievous injuries. This complaint was registered in Cr.No.159/2014 under Sections 324, 307 r/w 34 Indian Penal Code against Prabhugoud B. Tumbigi, his father-in- law and his car driver and the same is pending trial in C.C.No.6220/2015. In Crl.P.No.3630/2015, accused Nos.1 to 3 viz., Prabhugoud B. Tumbigi, H.V. Madalli and Santhosh Gadad have sought to quash the said charge sheet in C.C.No.6220/2015.
6. As could be seen from the above narration, the disputes between the parties appear to have arisen on account of the trivial incident for not leashing the dog reared by Manohar Solanki. A reading of the complaint and the counter complaint lodged by both the parties indicate that the complaints in W.P.No.62739/2016 and W.P.No.24822/2018 are filed in respect of the same occurrence, whereas Crl.P.3630/2015 is said to been filed in respect of the incident which is said to have taken place while the aforesaid Manohar Solanki questioned Prabhugoud B. Tumbigi as to why he was breaking the door lock of the bathroom. Both the learned counsels as party-in-person appeared before the Court and sought to quash the proceedings initiated against them. At one stage, both the learned counsels expressed their desire to bury their differences and to live peacefully in the apartment and expressed that the case and counter case registered by each of the parties which are pending against them are coming in their way to arrive at any peaceful solution. However, both the parties tried to justify their stand and tried to blame each other for the events that had driven them to take recourse to criminal process. In the said background, it was suggested to the parties to thrash out their differences amicably and to move necessary applications for compounding the offences. The petitioners in the respective proceedings requested the Court to pass appropriate orders so as to put an end to the litigations pending between the parties.
I have considered the submissions and perused the records.
7. The facts narrated above clearly disclose that cases and counter-cases have been filed by the parties only out of spite and to settle personal scores against each other. The material collected by the Investigating agency is not in consonance with the allegations made against the petitioners. In Crl.P.No.3630/2015 even though it is alleged that the complainant-Manohar Solanki was assaulted with an iron rod and spanner, during the investigation, a wooden club has been seized indicating that even the evidence has been propped up to support the charges against the petitioners. In any case, the parties themselves now having realized that the prosecution initiated against them were triggered by trivial incident that had taken place in the apartment occupied by both the parties, in my view, continuation of the said proceedings would not only be detrimental to the peaceful co-existence of the parties, but would also lead to further animosity and rancor between the parties. The circumstances in which the alleged prosecution have been launched clearly indicate that both the parties have abused the criminal process only to settle scores with rival parties. It is under these circumstances, in my view, inherent powers of this Court is required to be exercised in order to prevent abuse of process and to secure ends of justice.
8. In the case of INDER MOHAN GOSWAMI AND ANOTHER Vs. STATE OF UTTARANCHAL AND OTHERS reported in AIR 2008 SC 251, the Hon’ble Supreme Court has held that every High Court has inherent power to act ex debito justitiae to do real and substantial justice for the administration of which alone the court exists, or to prevent abuse of the process of the court.
It is now well settled that the Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, High court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
9. In the cases on hand, on considering the overall facts and circumstances of the case, in my view, criminal proceedings registered against the parties herein ought not to be permitted to degenerate into one of harassment or persecution of the parties. The manner in which the proceedings are initiated would itself indicate that the parties have made use of criminal process only as a weapon to harass and persecute the rival opponents. The material on record does not prima-facie establish the ingredients of offences alleged against the respective parties.
The evidences collected by the prosecution also do not support the allegations levelled against the accused therein. The material collected by the investigating agency is not sufficient to make out clear case for prosecution of the parties for the above offences. As a result, all the above proceedings in my view, deserve to be quashed in exercise of power under Section 482 Cr.P.C.
Accordingly, I proceed to pass the following order:-
1. W.P.No.62739/2016 is allowed. The F.I.R. in Cr.No.155/2016 of Seshadripuram Police, Bengaluru is quashed.
2. Crl.P.No.3630/2015 is allowed. The proceedings pending against the petitioners in C.C.No.6220/2015 on the file of the VIII A.C.M.M., Bengaluru are quashed.
3. Crl.P.No.1312/2018 is allowed. The proceedings pending against the petitioners in C.C.No.17781/2017 on the file of the LVI A.C.M.M., Bengaluru are quashed.
4. W.P.No.24822/2018 is allowed. The proceedings pending against the petitioner in C.C.No.26215/2017 on the file of the LVI A.C.M.M., Bengaluru are quashed.
In view of this order, the proceedings initiated against the minor accused Chi. Naman Bafna pending before the Juvenile Justice Board, Bengaluru in JCW No.263/2017 also stands quashed.
In view of disposal of the main matters, I.A.No.1/2018 for vacating stay, I.A.No.2/2018 for direction, I.A.No.3/2018 and I.A.No.1/2019 for direction, do not survive for consideration. Accordingly, they are dismissed.
Sd/- JUDGE *mn/-