IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.55416/2018 C/W WRIT PETITION NOs.50340-341/2018 A/W WRIT PETITION NOs.56927-28/2018(GM-RES) IN W.P.No.55416/2018: BETWEEN:
SRI. RAJANARAYANA REDDY S/O LATE H.N. HANUMA REDDY AGE: 73 YEARS NO.90, SMR ROAD HOODY VILLAGE MAHADEVAPUR POST BANGALORE – 560 048.
(BY SRI. NARAYAN M.S., ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER MAHADEVAPURA POLICE STATION BENGALURU CITY BENGALURU – 560 048.
2. MANOJ KUMAR B S/O BYRAPPA AGED ABOUT 21 YEAS HOODI VILLAGE K.R. PURAM HOBLI BENGALURU – 560 048.
... PETITIONER ... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH ALL PROCEEDINGS, IN SO FAR AS IT RELATES TO THE PETITIONER IS CONCERNED, IN THE ANNEXURE-A - FIRST INFORAMTION REPORT DATED:29.10.2018 IN CRIME NO.517/2018 OF MAHADEVAPURA POLICE STATION, BENGALURU CITY, REGISTERD FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 464, 465, 482, 420, 447 R/W/S 34 OF THE IPC AND U/S 3(IV) AND 3(V) OF THE SC & ST (PREVENTION OF ATROCITIES) ACT, 1989, PRESENTLY PENDING ON THE FILE OF ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-71) AT BENGALURU CITY.
IN W.P.Nos.50340-341/2018: BETWEEN:
1. SMT. POORNIMA K AGED ABOUT 42 YEARS W/O SRINIVAS D.T PARTNER OF SREE KRISHNA HOMES, #1074, 11TH MAIN HAL 2ND STAGE BENGALURU – 560 008.
2. SRI. T.K. DODDANA S/O LATE KARIYANNA PARTNER OF SREE KRISHNA HOMES, #1074, 11TH MAIN HAL 2ND STAGE BENGALURU – 560 008.
... PETITIONERS (BY SRI. D.R. RAVISHANKAR., ADVOCATE - ABSENT) AND:
1. THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER MAHADEVAPURA POLICE STATION BENGALURU CITY BENGALURU – 560 048.
2. MANOJ KUMAR B S/O BYRAPPA AGED ABOUT 21 YEARS HOODI VILLAGE K.R. PURAM HOBLI BENGALURU – 560 048.
(BY SRI. S. RACHAIAH., HCGP FOR R-1; R-2 SERVED) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH ALL PROCEEDINGS, IN SO FAR AS IT RELATES TO THE PETITIONERS ARE CONCERNED, IN THE ANNEXURE-A - FIRST INFORMATION REPORT DATED:29.10.2018 IN CRIME NO.517/2018 OF MAHADEVAPURA POLICE STATION, BENGALURU CITY, REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 464, 465, 282, 420, 447 R/W/S 34 OF THE IPC AND UNDER SECTIONS 3(iv) AND 3(v) OF THE SC & ST (PREVENTION OF ATROCITIES) ACT 1989, PRESENTLY PENDING ON THE FILE OF ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-71) AT BENGALURU CITY.
IN W.P.Nos.56927-28/2018: BETWEEN:
1. SRI. H.M. MUKUNDA AGED ABOUT 52 YEARS S/O MUNITHAYAPPA RESIDING AT NO.977 "RAVICHANDRA", HOODI WHITEFIELD ROAD BANGALORE - 560 048.
2. SRI. H.M. CHANDRASHEKAR S/O MUNITHAYAPPA AGED ABOUT 50 YEARS RESIDING AT NO. 977 "RAVICHANDRA", HOODI WHITEFIELD ROAD BANGALORE - 560 048.
(BY SRI. DWARAKANATH H.S., ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER MAHADEVAPURA POLICE STATION BANGALORE CITY BANGALORE - 560 048.
2. SRI. MANOJ KUMAR. B S/O BYRAPPA AGED 21 YEARS HOODI VILLAGE K.R. PURAM HOBLI BANGALORE - 560 048.
... PETITIONERS (BY SRI. S. RACHAIAH., HCGP FOR R-1; R-2 SERVED) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE FIR IN CRIME NO.517/2018 DATED:29.10.2018 REGISTERED BY THE MAHADEVAPURA POLICE STATION, BANGALORE CITY I.E., R-1 FOR OFFENCES PUNISHABLE UNDER SEC. 464, 465, 482, 420, 477 R/W SEC. 34 OF INDIAN PENAL CODE AND UNDER SEC. 3(iv) AND 3(v) OF THE SCHEDULE CASTE AND SCHEDULE TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 AND COMPLAINT AT ANNEX-A AND B.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though petitions are listed for Preliminary Hearing in ‘B’ Group they are taken up together for final disposal at the request of learned Advocates appearing for parties and also taking into consideration that a short point would arise for consideration in these petitions.
2. Second respondent in both the cases had filed a complaint on 29.10.2018 alleging that his grandfather Thoti Nagappa S/o. Byrappa was rendering thoti services to Hoody village and as such he was granted land measuring 3 acres 30 guntas in Sy.No.191 of Hoody Village and it came to be re-granted on 04.06.1975 under Section 5 of the Karnataka Village Officers Abolitions Act, 1961 with a condition that it should not be alienated except partitioning amongst family members of the grantee. It was further alleged that when grandfather Sri.Thoti Chikkanaga or Thoti Nagappa were in peaceful possession and enjoyment of said property, some persons who were financially sound and strong had attempted to trespass into said property and as such he had filed a suit seeking perpetual injunction against the trespassers namely, Sriyuths. Abdul Rahim, Krishnappa, Shafiulla, Nawab Jan and others in O.S.No.10539/1987 and learned trial Judge had decreed said suit on 11.01.1989 and thereafter violating the orders of Court said persons interfered with his possession of the land in question. It is also alleged in the said complaint there were sale deeds/GPAs executed with thumb impression and signature of Sri.Chikkanaga and Sri.Byrappa, which had been forged by accused persons and his supporters. Since complainant belongs to scheduled caste and accused persons had been illegally trespassed into said land they had to be proceeded against under the provisions of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act) and as such, second respondent-complainant sought for suitable action being taken against alleged trespassers. Said complaint came to be registered in Crime No.517/2018 under Sections 464, 465, 482, 420, 447 r/w 34 IPC and Sections 3(1)(iv) & 3(1)(v) of SC/ST Act. For quashing of said FIR registered in Crime No.517/2018, petitioner-Accused is before this Court.
3. Learned Advocates appearing for petitioners have vehemently contended that allegations made in the complaint do not constitute alleged offence and continuation of said proceedings against petitioners, would be onerous on them and it would be an abuse of process of law. It is also contended that reading of the complaint do not disclose same constituting an offence and ingredients of the offences punishable under Sections 464, 465, 482, 420, 447 r/w 34 IPC is not attracted. It is also contended that reading of entire complaint do not disclose about any role played by petitioners and same being attributable to them with regard to alleged trespass or taking forcible possession of the property and contending that said property had been sold to them under registered sale deeds by the grandfather of the complainant way back in the year 1987, continuation of criminal proceedings against the petitioners would be an abuse of process of law. Hence, they have sought for quashing of the proceedings.
4. Per contra, Sri.S.Rachaiah, learned HCGP appearing for first respondent–State would support the prosecution initiated against petitioners and would contend that at the time of considering the prayer for the quashing of the proceedings it would not be necessary to go into minor details alleged in the complaint, and if the allegations made in the complaint would disclose alleged offence, it would suffice to permit the investigation to proceed and also to continue with the trial. Hence, he prays for rejection of the writ petitions.
5. Having heard the learned Advocates appearing for parties and on perusal of records it would emerge that in the complaint, which has been lodged by the second respondent on 29.10.2018, an omnibus statement has been made against petitioners with regard to alleged trespass. The actual date of trespass and by whom and other minimum details which were expected to be narrated or to be alleged in the complaint, are not forthcoming from the complaint in question.
6. Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e., Act 33 of 1989 has come into force with effect from 30.01.1990 after same was published in the Gazette Notification bearing No.S.O.106(E) dated 29.01.1990. Even according to complaint alleged trespass into portions of the property, which complainant claims to have been granted to his grandfather, was in the year 1987 and complaint in question is filed on 29.10.2018 and as on the date of lodging the complaint in question complainant was aged about 21 years. In other words, he was not even born as on the date of alleged trespass and as such, complainant himself was not in the knowhow of alleged trespass. That apart, provisions which have been invoked by the first respondent under SC/ST Act is Section 3(1)(iv) and 3(1)(v), which provisions were not in the statute book and had stood substituted by Amendment Act of 2016 which came into force from 26.01.2016. Thus, very invoking of Section 3(1)(iv) and 3(1)(v) of the Act, is erroneous and even if allegations made in the complaint were to remain uncontroverted, on the basis of said allegations petitioners herein cannot be convicted for the said offences.
7. Insofar as offences alleged to have been committed by the petitioners relatable to offences punishable under Indian Penal Code is concerned complaint is silent with regard to necessary allegation and on the basis of an omnibus statement if criminal prosecution is allowed to be continued, it would not only be oppression but also onerous and it would be unfair to call upon the accused persons to face ordeal trial for which there is no specific allegation and as such continuation of proceedings would definitely be an abuse of process of law insofar as petitioners are concerned.
8. Yet another fact which has swayed in the mind of this Court to accept the contention of learned counsel appearing for petitioners is the fact that, very same complainant had filed a complaint before the jurisdictional Assistant Commissioner under Section 5 of the SC/ST Act seeking restoration of land in question, which came to be adjudicated by the jurisdictional Assistant Commissioner and by order dated 27.11.2018 said authority has rejected the application on the ground that land attached to the Office of the Hereditary Office (Thoti Inamti land in question) would not fall under the definition of “Granted Land” as defined under Section 3(1)(b) of the Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, which defines as to the person to be declared as “Authorised holder”.
9. For these myriad reasons aforestated, this Court is of the considered view that petitioners are entitled to the relief sought for.
Hence, I proceed to pass the following:
ORDER (i) Writ petitions are allowed.
(ii) Proceedings pending against petitioners in Crime No.517/2018 – Annexure-A (in both the petitions) registered for the offences punishable under Sections 464, 465, 482, 420, 447 r/w 34 of IPC and Sections 3 and 4 of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, is hereby quashed and they are acquitted of the aforesaid offences.
SD/- JUDGE DR