Ramesh Kumar Dungarwal vs State Of Karnataka
2021 Latest Caselaw 504 Kant

                                             CRL.P.4889/2018
                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JANUARY 2021

                           BEFORE

        THE HON'BLE MR. JUSTICE K.SOMASHEKAR

                     CRL.P.No.4889/2018

BETWEEN:

1.    Ramesh Kumar Dungarwal,
      S/o J.Sampathraj,
      Aged 53 years,
      Occupation: Business,
      Residing at No.1,
      Park Road, Tasker Town,
      Shivajinagar,
      Bengaluru-560 051.

2.    Mahaveerchand Dungarwal,
      S/o J.Sampathraj,
      Aged 61 years,
      Occupation: Business,
      Residing at No.10,
      Punam Plaza, Chickpet,
      Bengaluru-560 053.

3.    Chigan Raj,
      S/o Vastimal,
      Aged 57 years,
      Occupation: Business,
      Residing at No.46,
      Flat No.402, Perfecta Classica Apts.
      Sajjan Rao Road, V.V.Puram,
      Bengaluru-560 004.

4.    Gourav Sancheti,
      S/o Chhaganraj Sancheti,
      Aged 34 years,
      Occupation: Private Service,
      Residing at No.46,
                                                    CRL.P.4889/2018
                                 2


       Flat No.402, Perfecta Classica Apts.
       Sajjan Rao Road, V.V.Puram,
       Bengaluru-560 004.                          ..PETITIONERS

(By Sri Prasanna Kumar .P, Adv.)

AND:

1.     State of Karnataka,
       By Visveshwarapuram Police Station,
       Visveshwarapuram Sub-Division,
       Bengaluru City
       Represented by its
       State Public Prosecutor,
       High Court Bldg.,
       Dr.B.R.Ambedkar Veedhi,
       Bengaluru-560 001.

2.     Vinay Sancheti,
       S/o Chhaganraj Sancheti,
       Aged 36 years,
       Occupation:Business,
       Now Residing at No.14/2,
       M.M.Vidyalaya Road, V.V.Puram,
       Bangalore-560 004.                         ..RESPONDENTS

(By Smt.Rashmi Jadhav, HCGP for R1;
    Sri H.C.Nataraj, Adv. for R2)


       This criminal petition is filed under Section 482 Cr.P.C
praying to quash the order dated 16.02.2017 passed by the
learned    XXIV   Additional    Chief    Metropolitan        Magistrate,
Bengaluru City, Bengaluru in C.C.No.6312/2017, thereby
taking cognizance against the petitioners for the offences under
sections   342,   323,   504,   506     R/w   Sec.34    of    IPC   and
Vishweshwarapuram Police Station ordering to register criminal
case in Crime No.124/2016 and issue summons insofar as the
same relates to the petitioner Nos.1-4.
                                               CRL.P.4889/2018
                                3




     This petition coming on for admission, this day, the Court
made the following:

                          ORDER

1. This petition is filed by the petitioners who are

arrayed as accused nos.1 to 4 in C.C.No.6312/2017

arising out of Crime No.124/2016 registered by Central

Police and thereafter transferred to V.V.Puram Police, for

the offences punishable under Sections 323, 342, 504, 506

& 34 IPC, seeking quashing of the proceedings in

C.C.No.6312/2017 pending before the XXIV Addl. Chief

Metropolitan Magistrate, Bengaluru.

2. Brief facts of the case:

Respondent no.2 - Vinay Sancheti is none other than

the son of petitioner no.3 and brother of petitioner no.4

and nephew of petitioners 1 & 2. Respondent no.2 along

with his wife had filed a suit in O.S.No.7832/2016 against

the petitioners herein and also against his own mother and

sister-in-law seeking injunction in respect of the house

property owned and occupied by petitioner no.4. In the CRL.P.4889/2018

said suit, the interim applications filed in IA Nos.1 & 2 by

respondent no.2 was rejected on 13.02.2017 holding that

respondent no.2 was not in possession of the apartment

building and it was in fact petitioners 3 & 4 along with

their family which was residing in the said premises.

Thereafter, respondent no.2 has lodged a complaint before

the respondent-Police against the petitioners herein for the

alleged offences under Sections 323, 342, 504, 506 read

with 34 IPC, based on which Crime No.124/2016 came to

be registered.

3. It is the case of the prosecution that in order to

deprive respondent no.2 of his right over the property,

petitioners herein had assaulted respondent no.2 on

11.09.2016 at about 6 p.m. and that they had abused and

kicked him causing pain. With these allegations, the

respondent-Police filed charge sheet against the

petitioners.

4. Sri P.Prasanna Kumar, learned Counsel for the

petitioners submits that the alleged incident of assault has CRL.P.4889/2018

taken place on 11.09.2016, and whereas the complaint

has been filed by respondent no.2 on 14.09.2016, nearly

three days after the alleged date of incident. He submits

that even if the entire case of the prosecution is accepted

to be true, the same do not disclose commission of offence

as alleged by the prosecution. He further submits that

respondent no.2 having failed to get an injunction order in

the aforesaid civil case, thereafter, he has filed the present

frivolous complaint against his own father, brother and

nephews, and that the learned Magistrate without

appreciating the same, has taken cognizance against the

petitioners herein, which is an abuse of the process of law.

He further submits that petitioners 1 & 2 are the nephews

of respondent no.2 and petitioner no.3 is the father, and

petitioner no.4 is the brother of respondent no.2 and as

the parents of respondent no.2 stood by petitioner no.4 in

the family dispute, a false case has been foisted by

respondent no.2 against his own father, brother and

nephews in order to humiliate and harass them. On these CRL.P.4889/2018

premises, seeking quashment of the criminal proceedings

initiated against them being an accused.

5. Learned HCGP for the State who has countered the

arguments advanced by the learned Counsel for the

petitioners that the FIR came to be registered based on the

complaint filed by respondent no.2 and that materials have

been secured during the course of investigation and that

the said material will have to be submitted before the

Court by the prosecution during trial, and that at this

stage, no conclusion could be arrived that there are no

sufficient materials to constitute the alleged offences under

Sections 323, 342, 504, 506 read with 34 IPC.

6. Sri H.C.Nataraj, learned Counsel for respondent no.2

who is present before the Court physically, though his role

under Section 301 Cr.PC is very limited to the extent of

assisting the learned HCGP, submits that the suit is filed

for the relief of injunction in respect of the suit schedule

properties and that the said suit is pending adjudication

between the parties. In addition to that submission, he CRL.P.4889/2018

submits that respondent no.2 has also filed a suit in

O.S.No.437/2019 for the relief of partition and separate

possession of the suit schedule properties. He further

submits that the pendency of the said suits do not come in

the way of the trial in C.C.No.6312/2017, and therefore,

prays to dismiss the petition.

7. In the above backdrop of the contentions addressed

by the learned Counsel for the parties, it has to be stated

here that the power of the High Court under Section 482

Cr.PC to quash the criminal proceedings at the stage of

FIR and so also at the stage of C.C. is distinct and different

from the power of the criminal court. The Apex Court in

the case of ANAND KUMAR MOHATTA & ANOTHER VS STATE

(GOVT. OF NCT OF DELHI), DEPARTMENT OF HOME AND

ANOTHER - AIR 2019 SC 210, has held that there is nothing

in the words of Section 482 Cr.PC which restricts the

exercise of the power of the Court to prevent the abuse of

process of Court or miscarriage of justice only to the stage

of FIR. The High Court can exercise jurisdiction under

Section 482 Cr.PC even if the charge sheet is filed. In this CRL.P.4889/2018

judgment, the Apex Court has referred to the judgments

reported in AIR 1977 SC 1489, AIR 1992 SC 604 , AIR

2000 SC 754, AIR 2006 SC 2780, 2013 AIR SCW 6062 and

AIR 2014 SC 1106.

8. In the case of INDIAN OIL CORPORATION VS NEPC INDIA

LTD. & OTHERS - AIR 2006 SC 2780, it is held by the Apex

Court that any effort to settle civil disputes and claims,

which do not involve any criminal offence, by applying

pressure through criminal prosecution should be

deprecated and discouraged. The Court noticed a growing

trend in business circles to convert purely civil dispute

into criminal cases.

9. In the case of STATE OF KARNATAKA VS L.MUNISWAMY

& OTHERS - AIR 1977 SC 1489, it is held as under:

"7. ......In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The CRL.P.4889/2018

saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. ......"

10. In the instant case, the FIR filed by the respondent-

Police based on the complaint of respondent no.2 is

absurd and improper, on perusal of which, any prudent

man can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

Respondent no.2 has maliciously filed the complaint with

an ulterior motive to wreck vengeance against the accused

and on account of personal grudge against them. In the

present case, the criminal law is set in motion by

respondent no.2 who is none other than the nephew of

petitioners 1 & 2 and son of petitioner no.3 and brother of CRL.P.4889/2018

petitioner no.4. The said act of filing the complaint by

respondent no.2 against his family members is in

continuation of the civil proceedings instituted by him

against the very family members for injunction. That apart,

though it is alleged in the complaint that the alleged

incident of assault is said to have taken place on

11.09.2016, the complaint has been filed by respondent

no.2 only on 14.09.2016. There is no explanation

forthcoming either from the complainant or from the

prosecution with regard to the aforesaid delay. That apart,

the allegations made in the FIR do not disclose the

ingredients of the offences under Sections 323, 342, 504,

506 read with 34 IPC. The act of respondent no.2 in setting

the criminal law into motion is only with a view to give

physical and mental harassment to the accused. It has to

be further stated that no material is produced by the

prosecution along with the charge sheet to come to a

conclusion that the ingredients of the offences alleged

against the accused prima facie appear to be true.

CRL.P.4889/2018

11. It has to be therefore held that the registration of FIR

and initiation of criminal proceedings against the accused

based on the complaint of respondent no.2 is only to

convert purely civil dispute into criminal cases and which

is nothing but an abuse of the process of the Court.

Therefore, though the charge sheet is filed, the travesty to

hold the proceedings against the accused can be

interefered even the allegations have materialized into a

charge sheet. On the contrary, it could be said that the

abuse of process caused by FIR stands aggravated if the

FIR has taken the form of a charge sheet after

investigation. The power under Section 482 Cr.PC is

undoubtedly conferred to prevent abuse of process of

power of any court.

12. For all the reasons stated supra, I find that the

prosecution against the accused is malafide, untenable

and solely intended to harass the accused. Accordingly, I

have to pass the following order:

CRL.P.4889/2018

This criminal petition filed under Section 482 Cr.PC

is allowed. The entire proceedings in C.C.No.6312/2017

pending on the file of XXIV Additional Chief Metropolitan

Magistrate, Bengaluru, arising out of Crime No.124/2017

registered by Central Police and thereafter transferred to

V.V.Puram Police for the offences punishable under

Sections 323, 342, 504, 506 read with 34 IPC, against

accused nos.1 to 4, is hereby quashed.

Sd/-

JUDGE

KK