The vs 6
2023 Latest Caselaw 1707 AP

   HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

           CRIMINAL PETITION No.6826 of 2019

ORDER:

The petitioners are accused Nos.2 & 8 in S.C. S.T.

No. 4 of 2019 on the file of the Special Judge for SC & ST (POA)

Act-cum-VI Additional District & Sessions Judge, Kurnool

District, for offences under Sections 447, 420, 323, 506, 509,

354 (A) r/w. 34 of Indian Penal Code and Sections 3(1)(x)(g)(f)(i)

and 3(2) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015.

2. The allegations in the complaint against the

21persons arrayed as accused in the complaint are as follows:

a) The de facto complainant acquired title and

possession over the land admeasuring Ac.3.00 in

Sy.No.128/1 of Pandlapuram Revenue Village,

Kurnool District, by way of a registered deed of

settlement executed in her favour by her husband on

14.03.2017. The husband of the de facto complainant

acquired this land by virtue of a partition between

himself and his three sisters.

b) However, the 1st accused by way of registered

deeds of sale dated 22.04.2006 and accused Nos.2 &

3 by way of a registered deed of sale dated 24.04.2010

and by way of a registered deed of sale dated

25.04.2012 had clandestinely created rights for

themselves from one Late K. Ahmed Hussaini. On the

basis of these clandestine documents, the accused

Nos.1 to 3 accompanied by accused Nos.4 to 21 had

obstructed the de facto complainant and her husband

from carrying on agricultural operations in the land

on 26.08.2018. On that day, all the accused attacked

the de facto complainant and abused her in the name

of her community. The husband of the de facto

complainant was also assaulted when he sought to

come to her rescue. On account of this assault, the de

facto complainant and her husband has suffered

injuries though the said injuries are injuries which

are not visible.

c) The de facto complainant had moved the Court

of the Special Judge for SC & ST (POA) Act-cum-VI

Additional District & Sessions Judge, Kurnool District

by way of a private complaint under Section 200 of

Cr.P.C. The Trial Court had taken cognizance of this

complaint after examining the witnesses on oath.

3. Aggrieved by the same, the petitioners herein had

approached this Court by way of the present Criminal Petition

for quashing the complaint against them.

4. Heard, Ms. Aishwarya Nagula, learned counsel

appearing for the petitioners and the learned Public Prosecutor.

There is no representation for the de facto complainant, despite

notice having been served on the de facto complainant in

March, 2020 itself.

5. The case of the petitioners is that the allegations in

the complaint are false and, in any event, the said allegations do

not make out any case against the petitioners herein. The

petitioners contend that the property comprising of Ac.3.00

cents of land and another Ac.3.30 cents of land had been

purchased from the lawful owner of that land in the years 2010

& 2012 under registered deeds of sale after which the 1st

petitioner had been in peaceful possession and enjoyment of the

said land. As the husband of the de facto complainant was

trying to interfere with the possession and enjoyment of the 1st

petitioner with respect to the above land, O.S.No.59 of 2016 was

filed by the 1st petitioner before the Junior Civil Judge,

Banaganpalle, in which the Junior Civil Judge, Banaganpalle

had granted an interim injunction in I.A.No.585 of 2016 in

O.S.No.59 of 2016 and the same is still in force. The husband of

the de facto complainant being unable to make out a case in the

Civil Court has chosen the present path of getting his wife to file

a complaint in order to pressurize the 1st petitioner and other

accused to agree to the illegal demands of husband of the de

facto complainant. It is further contended that the incidents

alleged by the de facto complainant never took place and as

such the continuation of S.C.S.T.No.4 of 2019 would be an

abuse of the process of Court and requires to be quashed.

6. Ms. Aishwarya Nagula, learned counsel apart from

reiterating the aforesaid averments would also challenge the

maintainability of the complaint on the following grounds:

i. The allegations against 21 accused is that all the

accused had abused the de facto complainant in

the name of her community. Such a situation is

highly improbable and it is not possible that all

21 of the accused had abused the de facto

complainant with the same words, at the same

time. For this proposition, she relies upon the

Judgment of the erstwhile High Court of Andhra

Pradesh at Hyderabad in the case of Gara

Yesobu & ors Vs. State of Andhra Pradesh & Anr1.

ii. Section 420 of Indian Penal Code would require

an allegation that the accused had sought to

cheat the de facto complainant or any other

person for the purposes of dishonestly inducing

the person to deliver any property etc., as set out

in Section 420 of Indian Penal Code. No such

allegation is made against the petitioners herein

or any of the accused and as such Section 420 of

India Penal Code would not be available against

the petitioners.

iii. Section 447 of Indian Penal Code provides for

punishment for criminal trespass. The question

of criminal trespass would arise only if a person

enters into a property in the possession any

other person with intention to commit an offence

etc. In the present case, the 1st petitioner was

already in possession of the land and had

(2005) 1 ALT (Cri) 213

obtained interim injunction against the husband

of the de facto complainant in the year 2016

itself. In view of the interim injunction, it would

have to be held that neither the 2nd respondent

nor her husband are in possession of the said

land and consequently, no case can be made out

under Section 447 of Indian Penal Code.

iv. Section 354-A of Indian Penal Code stipulates that

any man who sexually harasses a woman would be

punished as per the provisions of Section 354-A of

Indian Penal Code. The requirement for a such an

offence to be made out, is the allegation and

demonstration of the intention of the man doing

any of the acts contain in Section 354-A of Indian

Penal Code with the intention of making explicit

sexual overtures or demanded for sexual favours. In

the present case, the complaint only stated that

there was an assault of the de facto complainant for

the purposes of pushing her and her husband out

of the land which was being cultivated by them.

There is no allegation anywhere against any of the

accused that they had assaulted the de facto

complainant with a sexual intend.

v. It is also contended that the provisions of Sections

323, 506 & 509 read with 34 of Indian Penal Code

would also not be available against the petitioners

as the question of assaulting the de facto

complainant or the husband of the de facto

complaint would not arise in view of the interim

injunction granted by the Civil Court.

7. As rightly pointed by Ms. Aishwarya Nagula,

learned counsel appearing for the petitioners, the allegations in

the complaint do not make out any case under Section 420

Indian Penal Code as there is no allegation of any dishonest

inducement of doing or not doing any of the acts set out in

Section 420 of Indian Penal Code. Similarly, the provisions of

Section 435-A of Indian Penal Code also would not arise as the

allegations in the complaint are straight forward allegations of

physical assault of the de facto complainant and her husband

for the purposes of forcible takeover of the land that is alleged to

be in the possession of the de facto complainant. Mere

allegation of physical assault would not attract the provisions of

Section 354-A of Indian Penal Code. There has to be an

allegation of such an assault coupled with sexual intent. In the

absence of such an allegation, no offence can be made out

under Section 354-A of Indian Penal Code.

8. The offence of Criminal trespass as defined under

Section 441, is punishable under Section 447 of Indian Penal

Code. This would require the offender to enter into a property in

the possession of any other person with an intention to commit

an offence. In the present case, the orders of the Civil Court in

I.A.No.585 of 2016 in O.S.No.59 of 2016 are sufficient to hold

that neither the de facto complainant nor her husband can

claim un-disputed physical possession over the land. In the

absence of this fact, no case can be made out under Section 447

of Indian Penal Code.

9. The question of applicability of the provisions of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Amendment Act, 2015 as well as the provisions of

Sections 323, 506 & 509 r/w 34 of Indian Penal Code remains.

These provisions speak of punishment of persons, under

Sections 323, 506 and 509 r/w 34 of I.P.C. who have assaulted

any other person and punishment of persons who have

dispossessed members of the SC/ST community from land in

their possession or where their land is forcefully occupied.

10. This Court would not, while exercising jurisdiction

under section 482 of Cr.P.C., evaluate the evidence or material

available in the case. However, in cases of glaring deficiencies or

anomalies, it would be open to this court to look further. Even

according to the complaint, there are no visible injuries on the

de facto complainant or her husband, despite being severely

assaulted by about 21 persons. It is extremely difficult to believe

that two persons who have been violently attacked by a mob of

21 people, with the alleged intention of doing away with them,

can come out of the assault without any visible injuries. This

anomaly is sufficient to hold that there was no assault on that

day.

11. The allegations in the complaint itself show that the

de facto complainant and her husband are fully aware of the

alienation of the property in favour of the 1st petitioner by the

earlier owner of the land. Further, the de facto complainant has

clearly suppressed the fact of the pendency of O.S.No.59 of

2016 on the file of the Junior Civil Judge, Banaganapalle and

the ad Interim Injunction in I.A.No.585 of 2016 given against

her husband in the year 2016 itself.

12. In these circumstances, this Court holds that the

held that the guideline No. 5 and 7 in Paragraph No.102 of the

Judgment of the Hon'ble Supreme Court of India in STATE OF

HARYANA VS. BHAJAN LAL, AIR 1992 SC 604, would squarely

apply as this complaint would have to be treated as a complaint

given for malafide reasons and with ulterior motives.

13. Accordingly, this Criminal Petition is allowed

quashing S.C. S.T. No. 4 of 2019 on the file of the Special Judge

for SC & ST (POA) Act-cum-VI Additional District & Sessions

Judge, Kurnool District, against the petitioners herein.

As a sequel, pending miscellaneous petitions, if any,

shall stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

28.03.2023 BSM

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

CRIMINAL PETITION No.6826 of 2019

28-03-2023

BSM