Mr. Gaffar Baig vs State Of Karnataka
2021 Latest Caselaw 5617 Kant

                           1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF DECEMBER, 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.9916/2017

BETWEEN

MR. GAFFAR BAIG
S/O LATE ABDULLA BAIG,
AGED 43 YEARS,
R/AT 180, GANDHIPURAM,
WHITEFIELD,
BANGALORE - 560 066.
                                              ... PETITIONER

[BY SRI.UDAYA HOLLA, SENIOR ADVOCATE FOR
   SRI.SIDDHARTHA H.M., ADVOCATE
   (PHYSICAL HEARING)]

AND

1.    STATE OF KARNATAKA
      BY THE POLICE OF
      KADUGODI POLICE STATION,
      REPRESENTED BY
      THE STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      BANGALORE - 560 001.

2.    M/S. DIVINE LIGHT SCHOOL FOR BLIND
      HOPE FARM, WHITEFIELD, BANGALORE
      REPRESENTED BY
      DIVINE LIGHT TRUST
      FOR BLIND BY ITS SECRETARY,
      SRI.K.S.RAVINDRA,
                                2



       SY.NO.34,
       PATTANDUR AGRAHARA VILLAGE,
       K.R.PURAM HOBLI,
       BANGALORE EAST TALUK,
       WHITEFIELD - 560 066.
                                                 ... RESPONDENTS

[BY SRI.R.D.RENUKARADHYA, HCGP FOR R1
    (PHYSICAL HEARING);
    SRI.B.S.SHASHI BHUSHAN, ADVOCATE FOR R2
    (PHYSICAL HEARING)]

     THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C
PRAYING    TO   QUASH  THE   ENTIRE   PROCEEDINGS     IN
C.C.NO.9564/2017 ON THE FILE OF ADDL.C.J.M., BENGALURU
RURAL DISTRICT, BENGALURU FOR THE OFFENCE P/U/S 427, 504
AND 447 OF IPC.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioner is before this Court calling in question the

proceedings in C.C.No.9564/2017 pending before the Additional

Chief Judicial Magistrate (ACJM), Bangalore Rural, Bangalore

for offences punishable under Sections 427, 504 and 447 of the

IPC.

2. Heard Sri. Udaya Holla, learned Senior counsel

representing the petitioner, Sri. R.D. Renukaradhya, learned

HCGP for respondent No.1 and Sri. B.S. Shashi, learned counsel

appearing for respondent No.2 and have perused the material on

record.

3. Brief facts as projected by the prosecution, are as

follows:

Respondent No.2 - M/s. Divine Light School for Blind

(hereinafter referred to as 'the complainant' for short) claims to

be in possession of a land in Sy.No.33 and 34 of Jodipatanduru

Agrahara village, White Field, Bangalore and is running a school

for the Blind in the name and style of 'Divine Light School for the

blind'. The claim of the school is that they are in possession of

the property right from 1959.

4. The petitioner on the score that he is in possession of

the property, institutes a suit in O.S.No.722/2011 seeking a

declaration and permanent injunction against several

respondents including respondent No.2 - School. The trial Court

decrees the suit, declare the petitioner to be the owner and

restrains the respondents from interfering with the peaceful

possession of the petitioner. The said suit is decreed on

22.09.2015.

5. A complaint is registered on 04.10.2015 by the

school alleging that the petitioner has trespassed into the

property belonging to the School in Sy.No.33 and has harassed

the children, who are differently abled. This results in

registration of an FIR against the petitioner in Crime

No.252/2015 for the offences punishable under Sections 427,

504, 447 read with Section 34 of IPC.

6. Pursuant to the registration of the FIR, the police

have investigated into the matter and have filed the charge sheet

before the Court on 04.08.2017. Column No.7 of the charge

sheet reads as follows:

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DzÀÝjAzÀ DgÉÆæAiÀÄ «gÀÄzÀÞ ªÉÄîÌAqÀ PÀ®AUÀ¼À jÃvÁå DgÉÆÃ¥ÀuÁ ¥ÀnÖ."

It is at that juncture, the petitioner has knocked the doors

of this Court in the subject petition and an interim order of stay

is granted, the same is in operation as on date.

7. The afore-narrated facts are not in dispute and need

not be reiterated. The decree is passed on 22.09.2015 in a suit

filed for declaration and permanent injunction against the

several persons including the School. The said decree is called in

question before this Court in R.F.A.No.1374/2015. This Court,

by its order dated 13.10.2015, admitted the RFA and stayed the

decree granted against the School. It is between the date of

decree and stay that was granted on 13.10.2015, the present

incident is alleged. The allegation is that the petitioner fenced

the property, which according to the School was belonging to

them. The alleged fencing is on the strength of a decree

aforesaid. This prevented the blind students from utilising the

land belonging to the blind students.

8. Though the finding rendered in the interim order

dated 10.03.2016 in R.F.A.No.1374/2015 would not have

absolute bearing on the decision in the subject lis, the

observation of this Court which went into granting the interim

order after hearing the petitioner is what requires to be noticed

and is therefore extracted for the purpose of quick reference:

"This Regular First Appeal is filed by M/s. Divine Light School for Blind challenging the Judgment & decree passed by the trial court on 22nd September, 2015, in O.S.No.722/2011, where the suit of the plaintiff for declaration of title based on a sale deed dated 7-1-2011 is granted.

2. The appeal was admitted and an interim order of stay as prayed for, was granted. Now the grievance is that inspite of the Judgment & decree of the trial court being stayed, the plaintiff has fenced the schedule property preventing the blind students from utlizing the land belonging to the blind School. The photographs are produced to show that while crossing the fence they were all injured. The photographs also show that they are all young students. It is pointed out that during the pendency of the suit, the appellant herein had filed a writ petition before this Court in writ petition No.22743/2005 against the respondent herein and others. The interim order came to be passed on 1-8-2012 which reads as under:-

"The applicants in both these applications claim to be the title holders of the property in question. It is admitted by all parties present that the possession of 7 acres 25 guntas comprising in Sy.Nos.33 & 34 of Jodipatanduru Agrahaa, village, White Field, Bengaluru, is with the Divine Light School for Blind, through its President. Possession of the Divine Light School for Blind is made absolute."

Again an order was made on 6-12-2012, which reads as under:-

"The interim order is made absolute and, therefore, no further orders are called for."

In addition to that, the State Government conducted an enquiry in pursuance to the order passed by this Court in the said writ petition. Sri. B.N.S. Reddy, I.P.S., Joint Commissioner of Police, C.A.R., Bengaluru, who conducted the enquiry has submitted his report, which is on record.

3. From the aforesaid material, it is clear that during the pendency of the suit, the appellant was in possession of 7 acres 25 guntas of land. When this

Court admitted the appeal and stayed the Judgment & decree, by no stretch of imagination the plaintiff could have altered the possession by putting the bar-bed fencing. Any how, this is a matter to be considered on merits and when the parties choose to argue the application on merits.

4. As the learned counsel for respondent No.1 is seeking time to file objections to the applications, suffice it to say that till the objections to the applications are filed or till the appeal is decided on merits, whichever is earlier the respondent - plaintiff shall not interfere with the peaceful possession and enjoyment of the plaint schedule property by the appellant."

(emphasis added)

The same is continued in the said RFA.

9. Though the learned Senior counsel would urge this

Court to consider the observations made in the decree is

rendered by the trial Court in O.S.No.722/2011, since the same

is stayed by this Court, the issue is with regard to whether the

petitioner is in possession of Sy.Nos.33 and 34 or the blind

School is in possession of Sy.No.33 need not be gone into, as the

said decree, though, not extinguished, is presently eclipsed by

the detailed interim order that is granted by this Court on

10.03.2016 in R.F.A.No.1374/2015.

10. The issue now is with regard to the petitioner

indulging in trespass into the property of the School. The

allegations are of Sections 447 and 504 of IPC. Section 447 of

the IPC deals with criminal trespass and reads as follows:

"447. Punishment for criminal trespass.--Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."

11. If the link in the chain of events are noticed i.e.,

grant of permanent injunction by the trial Court in

O.S.No.722/2011 and the allegation against the petitioner of

criminal trespass into the property belonging to the School

would undoubtedly lead to an unmistakable inference, that is a

matter of trial. The petitioner has to come out clean in the said

trial, as it could be probabilized that the petitioner on the

strength of the permanent injunction that is granted, before the

appeal period was over, has allegedly indulged in such act.

12. The interim order that was granted in RFA

No.1374/2015 dated 10.03.2016 was after hearing the parties

and looking at the photographs that were produced, which

cannot be brushed aside. The added circumstance is that the

police have also filed a chare sheet after investigation. Therefore,

the petitioner will have to come out clean in the trial.

13. The submission of the learned Senior counsel is that

there is a civil suit pending between the parties and the matter

which is purely civil in nature is given a criminal colour is

unacceptable for the reason that the present incident and

allegation of criminal trespass has nothing to do with the

pendency of the civil suit.

14. It is an independent incident of trespass on the part

of the petitioner, who on the strength of the order passed by the

trial Court that is decree of injunction and permanent injunction

wanted to fence the property, which allegedly is in the

possession of the School. Therefore, all these intricate facts

would necessarily need a trial against the petitioner to face and

come out clean. The law in this regard is well settled by the Apex

Court in its latest judgment in the case of KAPTAN SINGH v.

STATE OF UTTAR PRADESH AND OTHERS1, wherein the Apex

Court has held as follows:

"25. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta -

Accused No. 2 and Munni Devi under which according to Accused no. 2 -Ms. Mamta Gupta, Rs. 25 lakhs was paid

(2021) SCC Online SC 580

and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs. 25 lakhs and with no reference to payment of Rs. 25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs. 35 lakhs out of which Rs. 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused No. 2. Whether Rs. 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs. 25 lakhs as mentioned in the joint notarized affidavit dated 27.10.2010. It is also required to be considered that the first agreement to sell in which Rs. 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs. 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

26. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarized affidavit dated 27.10.2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarized affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs. 25 lakhs as mentioned in the joint notarized affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs. 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that

any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C."

(emphasis supplied)

The Apex Court in the afore-extracted judgment holds that

merely because the case is of civil in nature and if there are

serious triable issues, this Court under Section 482 of the

Cr.P.C., would not interfere or interject the proceedings pending

before the trial Court.

15. For the aforesaid reasons and in the light of the law

laid down by the Apex Court in the aforesaid case, the criminal

petition lacks merit and is dismissed.

16. The observation made in the course of this order is

only for the purpose of consideration of the case under Section

482 of Cr.P.C., the same shall not bind or influence any other

proceeding that the petitioners would avail of, in law.

Sd/-

JUDGE

SJK