HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.4371 OF 2021
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioners to quash the proceedings in Cr.No.163 of 2021 pending on the file of the Police, Shankarpally Police Station, Cyberabad. The petitioners herein are accused Nos.1 to 3 in the said crime registered for the offences under Sections 447 and 427 read with 34 of IPC.
2. Heard Sri D.V.Seetha Rama Murthy, learned senior counsel, representing Sri T.Mamidi Avinash Reddy, learned counsel for the petitioners, Sri K.S.Murthy, learned counsel representing Sri Naresh Reddy Chinnolla, learned counsel for the 2nd respondent, and the learned Public Prosecutor and perused the record.
3. As per the complaint, dated 31.03.2021, the allegations against the petitioners are as follows:-
i) 2nd respondent has purchased the land admeasuring Ac.0.06guntas in Sy.No.135/A situated at Bhulkapur village, Sankarpally Mandal, Ranga Reddy district (for short, 'the subject property'), under registered sale deed bearing Document No.6220 of 2019, dated 01.06.2019 and thereafter he got mutated his name in the revenue records. His vendor sold the said land with already constructed compound wall and 2nd respondent is in possession of the subject land since then.
ii) On 14.12.2020 at 2 o' clock, while he was passing through Shankarpally road, he saw few people demolishing his compound wall and trying to trespass into his land. They have demolished compound wall and destructed the gate. The said trespass was done by 1st and KL,J CrlPNo.4371_2021 2 3rd petitioners herein/A.1 and A.3. He has informed the same to the Circle Inspector of Shankarpally Police Station on the same day along with his father. He also gave a written complaint on 06.02.2021 in Shankarpally Police Station.
iii) With the said allegations, 2nd respondent has lodged the present compliant, dated 31.03.2021 with the Police, Shankarpally, who in turn, registered a case in Cr.No.163 of 2021 against the petitioners herein for the aforesaid offences.
4) CONTENTIONS OF LEARNED COUNSEL FOR THE PETITONERS:
i) Referring to the contents of the said complaint, Sri D.V.Sitha Rama Murthy, learned Senior Counsel would submit that the contents of the complaint lacks the ingredients of the offences alleged against the petitioners herein.
ii) 2nd respondent has not mentioned the Survey Number in which his land was situated.
iii) There is delay of almost 3½ months in lodging complaint from the alleged date of incident i.e. 14.12.2020.
iv) Referring to the allegation in the complaint, dated 31.03.2021, that the petitioners are trying to trespass into his land, learned Senior counsel would submit that the said allegation does not constitute offence under Section 447 of IPC.
v) He would further submit that 1st petitioner herein has filed a suit vide O.S.No.30 of 2014 against Ms.Gundedevuni Srilatha and Kondagadapu Sadanand for perpetual injunction and the Court below has passed interim injunction in I.A.No.353 of 2014 in O.S.No.30 of 2014 and also granted police protection vide order dated 27.12.2019 in I.A.No.146 of 2019 in O.S.No.30 of 2014 in favour of the 1st KL,J CrlPNo.4371_2021 3 petitioner herein for construction of compound wall on the southern side of the suit schedule property. According to learned Senior counsel, the said injunction order and the said police aid order dated 27.12.2019 are subsisting. Even then, knowing very well the said orders, the 2nd respondent has implicated the petitioners herein in a false case.
vi) With the said submissions, learned Senior Counsel sought to quash the proceedings in Cr.No.163 of 2021.
5. CONTENTIONS OF THE LEARNED COUNSEL FOR THE 2ND RESPONDENT:
i) There are specific allegations against the petitioners herein. The First Information Report is not an encyclopedia. The petitioners herein have already demolished the compound wall.
ii) The petitioners have already obtained bail. There are several factual aspects to be investigated by the Investigating Officer during the course of investigation including the aspect of delay in lodging the complaint.
iii) With the above said submissions and referring to the guidelines issued by the Honorable Apex Court, in M/s Neeharika Infrastructure Pvt.Ltd. Vs. State of Maharashtra1, he sought to dismiss the present Criminal Petition.
6. CONTENTIONS OF THE LEARNED PUBLIC PROSECUTOR:
i) Learned Public Prosecutor would submit that there are several factual aspects to be investigated into by the Investigating Officer and admittedly, the investigation is pending.
ii) According to him, investigation may not be interdicted at the initial stage.
1 2021 SCC OnLine SC 315 KL,J CrlPNo.4371_2021 4
iii) With the said submissions, learned Public Prosecutor sought to dismiss the Criminal Petition.
ANALYSIS AND FINDINGS OF THE COURT:
7. A perusal of the record would reveal that the 2nd respondent has purchased the subject property, under registered sale deed bearing Document No.6220/2019 dated 01.06.2019 from Ms.Gundedevuni Srilatha and Kondagadapu Sadanand represented by their AGPA holders Mr.Yavulla Raj Kumar, and Mr.Gudidevuni Raghavendra Swamy Goud. The said Ms.Gundedevuni Srilatha and Kondagadapu Sadanand have purchased the said property from Smt. Mangali Buchaiah and two others under registered sale deed bearing Document No.124 of 2011, dated 24.01.2011. Whereas, the 1st petitioner herein claiming that she has purchased the land admeasuring Ac.3-24 guntas in Sy.No.135/AA, 135/A, 135/A and 134/LU under a registered sale deed bearing document No.1307 of 2004 dated 27.02.2004 from A.R.Ananthan Krishnan who has purchased the said land under four registered sale deeds from Sri Manikonda Laxma Reddy, Mangali Narayana, Mangali Sattaiah and Chakali Bhumaiah. The 1st petitioner herein has lodged a complaint with the Police, Shankarpally Police Station, against Dandu Sailu, complaining about his illegal trespass into the land belongs to the 1st petitioner and Shankerpally Police in turn, registered a case in Cr.No.457 of 2017 for the offences under Sections 447 and 506 of IPC.
8. The 1st petitioner herein has also filed a suit vide O.S.No.30 of 2014 against said Ms.Gundedevuni Srilatha and Kondagadapu Sadanand for perpetual injunction. The Court below has also granted interim injunction in favour of the 1st petitioner herein restraining the KL,J CrlPNo.4371_2021 5 said Ms.Gundedevuni Srilatha and Kondagadapu Sadanand from interfering with the possession of the 1st petitioner over the subject land. On the application filed by the 1st petitioner herein, the Court below has also granted police aid for the purpose of construction of compound wall vide order dated 27.12.2019 in I.A.No.146 of 2019 in O.S.No.30 of 2014. The said order is still subsisting and the said suit is pending. It is also relevant to note that the said Ms.Gundedevuni Srilatha and Kondagadapu Sadanand are the vendors of the 2nd respondent herein.
9. A perusal of the complaint dated 31.03.2021 would also reveal that 2nd respondent has not mentioned any survey number. According to him, the alleged demolition of compound wall was on 14.12.2020. According to him, he has given a written complaint with the said Police on 06.02.2021 but he has not filed a copy of the said complaints dated 14.12.2020 and 06.02.2020 before this Court. Thus, there is delay of almost 3½ months in lodging the present complaint. It is also relevant to note that there is no mention about construction of compound wall in the sale deed bearing document No.6220 of 2019, dated 01.06.2019 through which 2nd respondent came into right over the subject property. However, 2nd respondent has filed mutation proceedings dated 27.07.2019 issued by Tahsildar, Shankarpally Mandal wherein his name was mutated in respect 06guntas in Sy.No.135/A.1/1/2/1 and 135/A1/1/2/3. The name of 2nd petitioner is not there in the complaint dated 31.03.2021. However, the Investigating Officer has shown 2nd petitioner as A.2 in Cr.No.163 of 2021.
10. As discussed supra, admittedly, a suit vide O.S.No.30 of 2014 filed by 1st petitioner against the vendors of 2nd respondent KL,J CrlPNo.4371_2021 6 seeking perpetual injunction was pending. There is an interim injunction against the vendors of 2nd respondent and in favour of 1st petitioner herein and the Court below has also granted police aid in favour of 1st petitioner for construction of compound wall. Therefore, there is cloud over the title and possession of 2nd respondent over the subject property. Admittedly, the possession and prima facie title of 1st petitioner over the land admeasuring Ac.3-14guntas in Sy.Nos135/AA, 135/A, 135/A, 134/LU situated at Bhulkapoor village, Shankarpally Mandal, Ranga Reddy district, is proved and on satisfaction of the same only, the Court below has granted interim injunction in favour of 1st petitioner herein and also granted police aid in her favour for construction of a compound wall.
11. As discussed supra, there is 3 ½ months delay in lodging a complaint by the 2nd respondent and there is no allegation against 2nd petitioner herein in the complaint dated 31.03.2021. 2nd respondent has not filed any document to show that a compound wall was constructed encircling his property admeasuring 06guntas in Sy.No.135/A of Bhulkapoor village. Therefore, 2nd respondent cannot seek adjudication of title and possession over the subject property from the Investigating Officer in Cr.No.163 of 2021. If at all, 2nd respondent is having any grievance, either he has to file a separate suit against the petitioners herein or get impleaded himself in O.S.No.30 of 2014. Admittedly, 2nd respondent has not done so.
12. Section 441 of the IPC deals with criminal trespass which is punishable under Section 447 of the IPC. The ingredients of Section 441 of the IPC are as follows:-
i) Entering into or upon the property in the possession of another, KL,J CrlPNo.4371_2021 7
ii) Such entry should be with the intent to
a) To commit an offence
b) To intimidate, insult or annoy any person in possession of the property.
13. Referring to the said ingredients of Section 441 of the IPC and also on examination of the facts, the Bombay High Court in Sumitra Hiralal Saklikar Vs. Hemant Radhakrishna Sapale2 categorically held that the distinction between the civil trespass and the criminal trespass cannot be forgotten. Making an unlawful entry into any property or taking possession, it does not constitute any offence. The aim behind erecting of the scaffolding could not be to commit any offence, or to cause annoyance to the complainant. Even if annoyance would actually be caused to the complainant, that was not the aim or intention behind the erecting of the scaffolding. The dispute that was already pending between the parties, clearly shows that the same is of a civil trespass. With the said findings, the Bombay High Court has quashed the proceedings against the accused therein for the offence under Section 447 of the IPC on the ground that the contents of the complaint therein lacks the ingredients of the offence under Section 447 of IPC.
14. In another case in Yenamandra Venkateswara Siddanti Vs. Guntamikkala Venkanna3 referring to ingredients of Section 441 of IPC and also facts of the said case, it was held that "Section 441 of IPC is designed to protect possession and it is immaterial whether the complainant has title to the property or not; but every unlawful entry upon the land in the possession of another cannot be criminal trespass. It is only such unlawful entry or lawful entry followed by unlawful stay 2 (2013) 5 AIR Bom R 883 3 APLJ 1980(1) (H.C. page 74) KL,J CrlPNo.4371_2021 8 which is made with the intent specified in Section 441 IPC that would amount to criminal trespass. The essence of the offence of criminal trespass is the intention to commit an offence or to intimidate or insult or annoy the person in possession of the property. If the unlawful entry or unlawful stay is made with any other intention, such entry or stay does not amount to criminal trespass even if the consequence of the entry or stay is annoyance to the person in possession of the property and the person entering or staying has knowledge of the consequence. Knowledge of the consequences is not the same an intention to produce that consequence, knowledge is mental awareness connoting mere cognition while intention is the dominant or main desire implying volition. Section 441 IPC does not take in its ambit unlawful entries with mere knowledge of the consequence of annoyance to the persons in possession, but makes punishable only unlawful entries or stays made with the intention specified in the Section."
15. It is further held that "if an entry on the land in the possession of another is made in the exercise of a bona fide claim of right, whether such claim is well-founded or ill-founded in law, it cannot be said that the entry is made with intent to intimidate, insult or annoy the person In possession or to commit an offence, though the probable consequence of the entry may be annoyance or intimidation to the person in possession. No doubt the claim in the exercise or assertion of which the entry is made, should be bona fide: it should not be a mere cloak or colourable pretence camouflaging the real intent. If, on an examination of all the facts and circumstances of the case, the court finds that the main or dominant or real intention of the person making the entry is to assert a right or a supposed right, the court will have to acquit him of the offence of criminal trespass."
KL,J CrlPNo.4371_2021 9
16. As discussed supra, the above said ingredients under Section 441 of the IPC are lacking in the complaint dated 31.03.2021.
Admittedly, a suit vide O.S.No.30 of 2014 is pending between 1st petitioner and the vendors of 2nd respondent. Thus, as stated supra, there is cloud over the title and possession of the 2nd respondent over the subject land.
17. In M/s Neeharika Infrastructure Pvt.Ltd. Vs. State of Maharashtra4, the three Judge Bench of Hon'ble Apex Court referring to its earlier judgments including State of Haryana Vs. Bhajanlal5 laid certain conclusions, for the purpose of exercising powers by High Courts under Section 482 of Cr.P.C which are as under:
"....
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;4
2021 SCC OnLine SC 315 5 1992 AIR 604 KL,J CrlPNo.4371_2021 10
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C.. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C. only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.;
18. The Honorable Apex court in Special Leave Petition (Criminal) No.3869 of 2021, dated 20.07.2021 referring to the said principle laid down in Neeharika (supra), held that "Supreme Court in Neeharika (supra) certainly allowed space for the High Court to pass an interim order of the nature impugned herein, "in exceptional cases with caution and circumspection, giving brief reasons". What is frowned upon in Neeharika (supra) is the tendency of the courts to pass blanket, cryptic, laconic, non speaking orders reading "no coercive steps shall be adopted."
19. Thus, in view of the discussion supra, according to this Court, the proceedings in Cr.No.163 of 2021 pending on the file of the KL,J CrlPNo.4371_2021 11 Police, Shankarpally cannot go against the petitioners herein. According to this Court, it is abuse of process of law. 2nd respondent, instead of filing of a separate suit or impleadng himself in the suit vide O.S.No.30 of 2014, lodged the present complaint that too, with delay of 3½ months. Thus, viewed from any angle, the proceedings in Cr.No.163 of 2021 are liable to be quashed against the petitioners herein.
20. Therefore, the Criminal Petition is allowed and the proceedings in Cr.No.163 of 2021 pending on the file of the Police, Shankarpally Police Station, Cyberabad, against the petitioners herein/A.1 to A.3 are quashed.
21. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
____________________ K. LAKSHMAN, J Date:16.08.2021.
vvr