IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS CRIMINAL PETITION NO.290/2017 BETWEEN 1. SRI. SRINATH H K AGED ABOUT 56 YEARS, S/O THIMMAPPAYYA KAPANI, 2. SMT. SHAKUNTHALA P SHETTY D/O GULABI SHETTY 3. SMT. REKHA SRINATH AGED ABOUT 35 YEARS, W/O SRINATH H K 4. SRI. PRAKASH SHETTY, AGED ABOUT 35 YEARS, S/O GULABI SHETTY REP. BY GPA HOLDER SRINATH H K, SL. NO.1 ABOVE ALL ARE RESIDING AT OVILLA RESIDENCY BRAMHAGIRI, UDUPI:576 101 UDUPI DISTRICT.
(BY SRI. OM KUMAR R, ADVOCATE) AND MAHESH V SHETTY AGED ABOUT 56 YEARS, …PETITIONERS S/O VITTALA SHETTY NO.2-3-56, BANNANJE, AMBALPADI POST, 576 101.
(BY SRI VIJAYA KUMAR SHETTY, ADVOCATE) …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ORDER DATED 24.09.2016 PASSED BY THE I ADDL. C.J. AND J.M.F.C., UDUPI IN C.C. NO.3802/2016 IN PCR NO.48/2016 REGISTERING CRIMINAL CASE AGAINST THE PETRS.-ACCUSED NOS.1 TO 4 FOR OFFENCES P/U/S 447, 427, 379 R/W 34 OF IPC AND CONSEQUENTLY QUASH ENTIRE PROCEEDINGS IN CC. NO. 3802/2017 IN PCR NO.48/2016 ON THE FILE OF I ADDL. C.J. AND J.M.F.C., UDUPI BY ALLOWING THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
The petitioners have filed this Criminal petition under Section 482 of Cr.PC., calling in question the order dated 24.09.2016 passed by the 1st Additional Civil Judge and JMFC., Udupi in C.C.No.3802/2016 in PCR No.48/2016 registering criminal case against the petitioners- accused Nos.1 to 4, for the offences punishable under Sections 447, 427, 379 read with Section 34 of IPC.
2. The brief facts of the case are that the respondent claims to be a tenant under the petitioners, who are owners of a commercial complex known as ‘Sree Dugra Prasad Complex’ situated at S.No.8/26 of Moodanidambur village, Udupi Taluk. It is an admitted fact that the respondent was a tenant in a shop bearing premises No.3-1-15D, measuring approximately 250 square feet, in the said commercial complex. The petitioners have filed a suit for eviction, mesne profits and damages against the respondent in O.S.No.404/2013. It is alleged in the suit that the respondent has not being paying rents as agreed, therefore, the suit for eviction, mesne profits and damages. On the other hand, the respondent made a complaint to the local police on 09.07.2016, alleging that the petitioners have broke open the lock of the shops and have taken away a computer, an investor, battery, bill books and cash of Rs.5,000/- and other valuable furniture, the value of which is approximately of Rs.50,000/-, they have ransacked the shop and therefore action was sought against the petitioners. It is specifically alleged that the incident has occurred on 08.07.2016, that is the day before the complaint was made. It is the contention of the respondent that though the Circle Inspector of Police took a statement of petitioner No.1, but no further action was taken by the Circle Inspector of Police. On the other hand, an endorsement was issued on the very same day i.e., on 09.07.2016, that since the matter pertains to an immovable property, the respondent was directed to approach a competent Court. It is in this background that the private complaint under Section 200 of Cr.PC was filed by the respondent before the competent Magistrate.
3. Learned counsel for the petitioners submits that on a plain reading of the complaint filed by the respondent, it is clear that there is no cognizable offence made out against any particular petitioner. On the other hand, the respondent knowingly fully well that he had indeed sub-let the premises to the neighboring liquor shop owner who was utilizing the shop that was let out to the respondent, has made this false complaint against the petitioners. Moreover, it is submitted that petitioner No.4 is residing abroad and there is no specific allegation made against any of the petitioners. It is submitted that petitioners No.2 and 3 are housewives and their names have been included in the complaint only to harass them. The learned counsel for the petitioners further submits that Section 204 of Cr.PC would provide that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summons case or a warrant case then accordingly, summons or warrants shall be issued against the accused. It is submitted that on going through the impugned order, it is clear that the Magistrate has not applied his mind before directing registration of a criminal case and issuance of summons.
4. Per contra, the learned counsel for the respondent submits that the very fact that the petitioners had instituted a suit in the year 2013, it is clear that they initially proceeded legally to evict the respondent and unless and until there is an order decreeing the suit and directing vacation of the respondent, the petitioners could not have evicted or thrown out the respondent by breaking open the lock. It is further submitted that since the petitioners have sought mesne profits and damages from the respondent, it is clear that the petitioners are seeking damages for the occupation of the shops by the respondent after termination and until the suit is decreed, the petitioners could not have legitimately thrown out the respondent or breaking open the lock put on the shop premises.
5. Heard the learned counsel for the petitioner and respondent and perused the petition papers.
6. Section 204 of Cr.PC., as stated by the learned counsel for the petitioner would provide that the Magistrate, while taking cognizance of an offence has to prima-facie record his opinion that there is sufficient ground for proceeding. On a plain reading of the impugned order, it appears that the Magistrate has not recorded anything in the order that would disclose the prima-facie case.
7. More importantly, sub-section (2) of Section 204 of Cr.PC., provides that no summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed. Admittedly, the respondent has not furnished a list of the prosecution witnesses before the Magistrate. Therefore, the Magistrate could not have issued summons without a list of the prosecution witnesses. On this ground, the impugned order requires to be interfered, to the extent of issuance of summons without there being a list of the prosecution witnesses. The learned counsel for the petitioner has fairly submitted that it was incumbent upon the Magistrate to order investigation under Section 156(3) read with Section 190 of Cr.PC., before taking cognizance.
8. The Criminal petition is partly allowed. The impugned order dated 24.09.2016 passed by the 1st Additional Civil Judge and JMFC., Udupi in C.C.No.3802/2016 in PCR No.48/2016, to the extent of issuance of summons to the accused is hereby quashed and set-aside. The Magistrate shall take note of the observations made hereinabove and thereafter proceed in accordance with law.
Sd/- JUDGE DL