IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9059/2018 C/W CRIMINAL PETITION NOs.4486/2018, 4488/2018, 9060/2018, 9061/2018, 9062/2018, 9063/2018, 9089/2018, 9092/2018 AND 9093/2018 IN CRL.P.NO.9059/2018:
BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
2. SRI. B. JAGANNATHA RAO SON OF LATE B. MADHAVA RAO AGED 67 YEARS RESIDING AT NO.85 5TH MAIN ROAD, AGS COLONY ANANDA NAGARA BANGALORE – 560 024.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1 SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMNAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.50591/2017 FILED BY THE 1st RESPONDENT FOR THE OFFENCE P/U/S 447,427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.4486/2018:
BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE - 560 045.
2. SMT. ANURADHA SUVARNA WIFE OF SRI. RAMMI RAO AGED 50 YEARS RESIDING AT NO.10, COAL LAYOUT SAHAKARA NAGAR BANGALORE - 560 045.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56555/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447 AND 427 R/W 34 OF IPC ON THE FILE OF XI ADDL.C.M.M., MAYO IN CRL.P.NO.4488/2018: BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE - 560 045.
2. SMT. B.V. SMITHARANI DAUGHTER OF LATE B.H. VISHWANATH AGED 38 YEARS RESIDING AT NO. 99 HARSHA NILAYA, IV MAIN ROAD DOMLUR 2ND STAGE BANGALORE - 560 071.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56551/2017, FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447 AND 427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9060/2018: BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
2. SMT. KAMAL DEEPAK ANAND WIFE OF DEEPAK ANAND RESIDING AT NO.16, 2ND MAIN ROAD JAYAMAHAL EXTENTION BANGALORE – 46.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.50593/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447 AND 427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9061/2018: BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
2. SRI. GANAPATHI HEGDE SON OF LAKSHMAN HEGDE AGED 56 YEARS RESIDING AT NO.53 ”LAKSHMIDEVI” NEAR CHOWDAIAH HALL OPP TTD TEMPLE, VYALAIKAVAL BANGALORE – 560033.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1; R-2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56552/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447 AND 427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9062/2018: BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
2. SRI. MOHAMMED TANZEEM SON OF KHASIM ALI AGED 38 YEARS RESIDING AT NO.40 SECOND CROSS, ASHWATHA NAGARA, SANJAYANAGAR POST BANGALORE CITY, BANGALORE – 560 005.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1; R-2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56569/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447, 427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9063/2018: BETWEEN:
SMT. VIJAYA LAKSHMI PATIL W/O SRI. CHANDRASHEKAR PATIL AGED ABOUT 34 YEARS RESIDING AT G-2 SHANKAR MANSION, NO.23, L.G. HALLI DOLLARS COLONY, RMV 2ND STAGE BANGALORE – 560 094.
... PETITIONER (BY SRI. L.M. CHIDANANDAYYA., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
2. SRI. RAVI KOTHARI SON OF L.N. KOTHARI AGED 38 YEARS RESIDING AT NO.16 HOMEWELL TOWER SUDARAMURTHY ROAD COX TOWN BANGALORE – 560 005.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1; R-2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56558/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447, 427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9089/2018:
BETWEEN:
SRI. T. RAJU S/O SRI. THAMMANNA AGED ABOUT 39 YEARS NO 2575, THENGINA THOTA VEERANNA PALYA, A.C. POST BANGALORE – 560 045.
... PETITIONER (BY SRI. MURALIDARA R., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE, KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 45.
2. SMT. D.V. SMITHA RANI D/O LATE B.V. VISHWANATHA AGED ABOUT 39 YEARS RESIDING AT NO.99 4TH MAIN II STAGE, DOMLUR BANGALORE – 71.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
R-2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56551/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCE P/U/S 447,427 R/W 34 OF IPC ON THE FILE OF THE XI ACMM, MAYO HALL, BANGALORE.
IN CRL.P.NO.9092/2018: BETWEEN:
SRI. T. RAJU S/O SRI. THAMMANNA AGED ABOUT 36 YEARS NO 2575, THENGINA THOTA VEERANNA PALYA, A.C. POST BANGALORE – 560 045.
(BY SRI. RAGHAVENDRA K., ADVOCATE) ... PETITIONER AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS S.P.P HIGH COURT BUILDING BANGALORE, KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 45.
2. SRI. B. JAGANATH RAO S/O LATE B. MADHAV RAO AGED ABOUT 70 YEARS RESIDIGN AT NO.85, 5TH MAIN AGS COLONY, ANAND NAGAR BANGALORE – 24.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.50591/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCES P/U/C 447,427 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
IN CRL.P.NO.9093/2018: BETWEEN:
SRI. T. RAJU S/O SRI. THAMMANNA AGED ABOUT 39 YEARS NO 2575, THENGINA THOTA VEERANNA PALYA, A.C. POST BANGALORE – 560 045.
(BY SRI. RAGHAVENDRA K., ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS S.P.P HIGH COURT BUILDING, BANGLORE, KADUGONDANAHALLI POLICE STATION NAGAVARA MAIN ROAD BANGALORE – 560 045.
... PETITIONER 2. SRI. RAVI KOTHARI S/O L.N. KOTHARI AGED ABOUT 41 YEARS RESIDING AT NO.16 HOMEWELL TOWER SUDAR MURTHY ROAD COX TOWN BANGALORE – 05.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. K.N. PANINDRA., SR. COUNSEL A/W SMT. VAISHALI HEGDE., ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS INITIATED AGAINST THE PETITIONER IN C.C.NO.56558/2017 FILED BY THE 1ST RESPONDENT FOR THE OFFENCES P/U/S 447 R/W 34 OF IPC ON THE FILE OF THE XI A.C.M.M., MAYO HALL, BANGALORE.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who have been arraigned as accused Nos.1 and 3 in CC Nos.50591/2017, 56555/2017, 56551/2017, 50593/2017, 56552/2017, 56569/2017 and 56558/2017 which have been registered for the offences punishable under Sections 447 & 427 IPC read with Section 34 IPC pending before XI Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru are before this Court with a prayer to quash said proceedings.
2. Heard Sri L M Chidanandayya, learned Advocate appearing for petitioners and Sri K.N.Phaneendra, learned Senior counsel appearing for respondent-2 in the respective petitions and Sri S Rachaiah, learned HCGP appearing for the respondent-State. Perused the records.
3. Petitioners in these petitions claim to have purchased the property from erstwhile land owners in the year 2013 and also claim to have put in possession of the property pursuant to sale deeds executed. The respective complainants in these petitions have lodged complaint during year 2015 by alleging that they have been put in possession of the sites in the layout situated at Nagavara formed by Vyalikaval House Building Co-operative Society and from the year 2005, they have been in possession and enjoyment of the same. It is further alleged that during July, 2015 they were informed that certain persons had been using JCB to demolish the existing compound walls put up by them and as such, they rushed to their respective sites and found that accused persons were attempting to trespass into their sites and demolish the compound walls and as such, they lodged a complaint before jurisdictional police namely, Kadugondanahalli Police Station against petitioners which complaint came to be registered in Crime Nos. 316/2015, 304/2015, 302/2015, 312/2015, 303/2015, 306/2015 and 305/2015 for the offences punishable under Sections 447 & 427 IPC read with Section 34 IPC. Hence, petitioners are before this Court seeking for quashing of said proceedings.
4. It is the contention of Sri L M Chidanandayya, learned Advocate appearing for petitioners that complainants are claiming right over the property through Vyalikaval House Building Co- operative Society on allotment of sites for whose benefit lands came to be acquired and said acquisition proceedings came to be set aside by a Division Bench of this Court on 21.02.1996 and it was affirmed by the Hon’ble Apex Court on 02.02.2007 wherein it has been observed that irrespective of land owners not challenging the acquisition proceedings, delivery of possession to respective land owners was directed by Hon’ble Apex Court and as such, Land Acquisition Officer had delivered possession of the lands to the erstwhile land owners and they in turn have sold the property to the petitioners-accused persons and as such, they are in possession and enjoyment of the property so purchased and the issue relating to possession is at large before Civil Court and as such, complainants cannot be allowed to continue the prosecution launched by them under the guise of alleged criminal trespass. Hence, contending that dispute in question is entirely within the domain of Civil Court, there is no criminality attributable to the petitioners and therefore, question of proceeding with the criminal prosecution against petitioner would only result in driving the petitioners to undergo the ordeal of trial and it would be an abuse of process of Court and as such, he seeks for quashing of the proceedings pending against petitioners. In support of his submissions, he has relied upon the following judgments:
(i) (2011)7 SCC 59 JOSEPH SALVARAJ A. vs STATE OF GUJARAT AND OTHERS (ii) (2015)1 SCC 513 RAJIB RANJAN AND OTHERS vs R.VIJAYKUMAR (iii) (2014)10 SCC 663 BINOD KUMAR & OTHERS vs STATE OF BIHAR & ANOTHER (iv) (2014)13 SCC 553 RASHMI JAIN vs STATE OF UTTAR PRADESH & ANOTHER 5. Per contra, Sri K N Phaneendra, learned Senior Counsel appearing for respondent-2 would support the prosecution and contends that very foundation on which petitioners claim to have acquired possession of the property through erstwhile owners has stood wiped out by virtue of subsequent order passed by the Government withdrawing the said earlier orders passed delivering possession and as such, petitioners cannot claim to be in possession of the said land. It is because of this precise reason, petitioners have continued in possession of their respective sites allotted to them and they have not been divested of possession and accused persons using criminal force had attempted to trespass into their sites and as such complaints came to be lodged against petitioners based on which jurisdictional police have registered criminal case and investigated the same and found that allegations made in the complaint to be true and as such, charge sheet came to be filed and there is no ground to quash the proceedings. Hence, he prays for dismissal of the petitions.
6. Sri Rachaiah, learned HCGP would support the initiation of proceedings against petitioners and prays for dismissal of the petitions.
7. Having heard the learned Advocates appearing for parties, at the outset, it is explicitly made it clear that this Court would not embark upon conducting any enquiry with regard to alleged possession with regard to either of the parties. It would suffice to state that Hon’ble Apex Court while upholding quashing of the acquisition proceedings passed by the Division Bench of this Court has made the following observations:
“We direct that as a result of quashing of the land acquisition proceedings including the notification as aforesaid, the possession of the lands shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. On the restoration of the possession to the land owners, they shall refund the amount received by them as compensation or otherwise in respect of their lands. The appellant, respondent and the State Government including all concerned authorities/persons shall implement the aforesaid direction at an early date.”
8. A bare reading of the above direction would clearly indicate that it was ordered that land owners should be restored with possession of their respective lands irrespective of the fact whether they had challenged acquisition of their lands or not. Based on said direction, Special Land Acquisition Officer claims to have drawn ‘panchanama’/ ‘mahazar’/‘status report’ dated 25.03.2009 which would indicate that possession of the lands as described therein has been handed over to erstwhile land owners. However, same neither discloses about possession having taken from the persons who were in possession of the property i.e., either complainants herein or the housing society. Hence, much reliance cannot be placed on said panchanama/mahazar/ status report. Even otherwise, same has been withdrawn by the appropriate Government on 16.04.2010 and a communication has emanated from the office of the Principal Secretary, Revenue Department addressed to the Special Deputy Commissioner, Bangalore District whereunder it is clearly and specifically held that in respect of 14 persons in whose favour order of delivery of possession had been passed like the one on hand i.e., communication dated 25.03.2009 had been withdrawn. In fact, erstwhile owner Smt.Mary Jayashree had challenged said order of withdrawal dated 16.04.2010 in W.P.Nos.8403-23/2011 before this Court and said writ petitions also came to be withdrawn by order dated 25.08.2011. This would only indicate that mahazar/ possession/status report had receded to the background or it would have no effect at all. In that view of the matter, petitioners cannot be heard to contend that petitioners would be able to still rely upon said communication to claim possession that too, through their erstwhile owners. Anyway, these are all aspects which will have to be thrashed out by the respective parties in appropriate civil proceedings.
9. In fact, a direction came to be issued by the Deputy Commissioner, Bangalore Urban District to the Deputy Commissioner of Police, East Division and Ulsoor Station House Officer, Kadugondanahalli Police Station, Bengaluru to consider grant of police protection by communication dated 13.06.2014 and same was challenged by some of the complainants herein in W.P.Nos.28388-401/2015 and connected matters and co-ordinate Bench of this Court headed by his Lordship the then Hon’ble Mr.Justice Abdul Nazeer who by order dated 19.07.2016 had allowed the writ petitions and had quashed said communication dated 13.06.2014. In the light of these facts, when the complaint in question is perused, it would disclose that primafacie offence as alleged against petitioners being made out. As to whether allegations made therein are true or otherwise is a matter which will have to be decided after trial. As to the subject matter of acquisition which has reached finality is also an issue which is said to be in dispute between the parties. At the initial stage of issue of summons to the accused, this Court would not exercise extraordinary jurisdiction or enter into the domain of either examining probable defence of the accused or material that would be placed by the prosecution in support of its allegation made against an accused. If the complaint contains the element of civil dispute, that by itself would not be a ground to stifle criminal prosecution, if primafacie complaint discloses that offence that are alleged against petitioners or in other words, if the ingredients of the offences alleged against accused are made out, criminal proceedings cannot be quashed. In the instant case, complainants have specifically alleged and contended that accused persons attempted to trespass into their property (sites) for which they had acquired title under registered sale deeds and undisputedly it was much prior to the sale deed of the accused persons. In that view of the matter, this Court finds that this is not a case where extraordinary jurisdiction of this Court is required to be exercised for quashing the proceedings pending against petitioners.
Hence, for the reasons aforestated, these criminal petitions stand dismissed.
SD/- JUDGE *sp