IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4544 OF 2016 BETWEEN:
1. Vishakantegowda K.M. S/o Late Marigowda, Aged about 57 years, R/o North Bank Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District-571 435.
2. Puttalaksmamma W/o Vishakantegowda K.M., Aged about 45 years, R/o North Bank Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District-571 435.
3. Aruna S/o Vishakantegowda K.M., Aged about 25 years, R/o North Bank Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District-571 435.
4. Mahesha K.V. S/o Vishakantegowda K.M., Aged about 28 years, R/o North Bank Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District-571 435 5. Chandru S/o Late Gopalagowda, Aged about 30 years, R/o North Bank Village, Chinakurali Hobli, Pandavapura Taluk, Mandya District-571 435. ……Petitioners (By Sri. Nataraju T., Advocate for Sri. V.A. Madhava Reddy, Advocate) AND:
1. The State of Karnataka, By K.R. Sagar Police Station, Reptd. By S.P.P., High Court Building, Bengaluru-560 001.
2. Smt. Shashikala S.D. Panchayath Development Officer, Katteri Grama Panchayath, Pandavapura Taluk, Mandya District-571 435. ... Respondents (Sri. Vijayakumar Majage, Addl. SPP for R-1; R-2 served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the charge sheet in C.C.No.42/2016 on the file of the Sr. Civil Judge and J.M.F.C., Pandavapura for the offence P/U/S 72 of the Karnataka Panchayat Raj Act R/W Sec. 143, 353, 504 R/W 149 of IPC against the petitioners.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER This petition is filed seeking to quash the charge sheet laid against the petitioners in C.C.No.42/2016 for the offences punishable under Section 72 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and Sections 143, 353, 504 read with Section 149 of Indian Penal Code.
2. Heard learned counsel for the petitioners and learned Additional State Public Prosecutor for respondent No.1. Respondent No.2 was served but she remained unrepresented.
3. Learned counsel for the petitioners at the outset submitted that the ingredients of Section 72 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 are not attracted to the facts of the case. The complaint is malafide and vexatious and a sequel to the decree obtained by petitioner No.1 against the Panchayath Development Officer and its Secretary in O.S.No.32/2012 and thus, seeks to quash the impugned proceedings.
4. Learned Additional State Public Prosecutor argued in support of the impugned action contending that the allegations made in the charge sheet and the material produced in support thereof clearly make out the ingredients of the above offences and hence, there is no reason to quash the proceedings.
5. Considered the submissions and perused the records.
6. The substance of accusation against petitioners is that on 31.12.2015 at 11.30 a.m., when the complainant and Cws.1 to 3 were involved in measuring the properties comprised in khata No.898 of North Bank village, petitioners herein formed an unlawful assembly and snatched the chain and thereby, obstructed a public servant from discharging her official duties.
7. A reading of the panchanama prepared on 31.12.2015 discloses that the property belonging to petitioner No.1 is comprised in Sy.No.531 and it is located to the east of khata No.898. There is nothing in the entire charge sheet to indicate that any prior notice was issued to the petitioners or any other occupants of the said properties. The certified copy of the decree passed in O.S.No.32/2012 dated 05.06.2013, produced by the petitioners discloses that an order of permanent injunction was issued by the Civil Judge and JMFC, Pandavapura against the Karnataka Government represented by its Panchayath Development Officer and Secretary of Gram Panchayath in respect of the property bearing No.531 of North Bank Village.
8. In the wake of the above order, if any survey was undertaken without prior notice to the adjacent owners namely, the petitioners, it cannot be said that the complainant was engaged in official duty of measuring the properties. Under the said circumstances, the provisions of Section 353 of Indian Penal Code, in my view, do not apply to the facts of this case. Likewise, the provisions of Section 72 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 are also not applicable in the instant case. Section 72 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 reads as under:
72. Obstructions and encroachments upon public streets and open sites.- (1) Whoever not being duly authorised in this behalf, within the limits of a panchayat area,-
(a) shall have built or set up, or shall build or set up, any wall, fence, rail, post, stall, verandah, platform, plinth, step or any projecting structure or other encroachment or obstruction; or (b) shall deposit or cause to be placed or deposited any box, bale, package, or merchandise or any other thing in any public street or place or in or over or upon any open drain, gutter, sewer or aqueduct in such street or places;
shall on conviction, be punished with fine which may extend to one hundred rupees and with further fine which may extend to five rupees for every day on which such projection, encroachment, obstruction or deposit continues after the date of first conviction for such offence.
(2) The Grama Panchayat shall have power to remove any such obstruction or encroachment, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the Grama Panchayat or not. The expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable as if it were a tax imposed under section 199.
(3) Whoever, not being duly authorised in that behalf, removes earth, sand other than sand used for domestic purposes by residents of the panchayat area or other materials from, or makes any encroachment in or upon any open site which is not private property shall, on conviction, be punished with fine which may extend to two hundred rupees, and,-
(i) in the case of an encroachment, with further fine which may extend to two rupees for every day on which the encroachment continues after the date of first conviction;
(ii) in the case of removal of earth, sand or other material, twice the value of such earth, sand or other material shall also be recoverable as a fine.
(4) Nothing contained in this section shall prevent the Grama Panchayat from allowing any temporary occupation of or erection in any public street on occasions of festivals and ceremonies or the piling of fuel in by-streets and sites for not more than four days, and in such manner as not to inconvenience the public or any individual.
9. The case of the prosecution is that the alleged survey was being done in the private properties and not in any panchayath area or any public street or open site. As a result, there is no basis for the respondents to proceed against the petitioners. Having regard to the above facts, as rightly submitted by the learned counsel for petitioners, prosecution appears to have been instituted solely as a sequel to the permanent injunction order passed against the Panchayath Development Officer and the Secretary of Katteri Grama Panchayath. Therefore, taking into consideration all the above facts and circumstances of the case, I am of the view that the prosecution instituted against the petitioner is malafide and ulteriorly motivated and therefore, cannot be sustained. The allegations made in the charge sheet and the documents produced along with the charge sheet do not prima facie disclose the commission of the above offences. Hence, the prosecution being illegal, the proceedings are liable to be quashed.
Accordingly, the petition is allowed. The proceedings initiated against the petitioners in C.C.No.42/2016 on the file of the Senior Civil Judge and JMFC, Pandavapura, are quashed.
BMC Sd/- JUDGE