Karnataka High Court
S R Seetharam vs State Of Karnataka on 7 June, 2021
Author: K.S.Mudagal
W.P.No.14318/2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE 2021
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION No.14318/2018(GM-RES)
BETWEEN:
1. S.R.SEETHARAM
S/O LATE G.S.RAMASWAMY
AGED ABOUT 77 YEARS
RESIDING AT C-101, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
2. RAMAKRISHNAN
S/O S.NARAYANAN
AGED ABOUT 54 YEARS
RESIDING AT C-802, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
3. S.THIAGARAJAN
S/O LATE M.S.SUBRAMANIAN
AGED ABOUT 63 YEARS
RESIDING AT C-302, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
4. DORAIRAGHAVAN MURLI
S/O S.DORAIRAGHAVAN MURLI
AGED ABOUT 52 YEARS
RESIDING AT C-803, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
5. V.SEETHARAMU
S/O LATE S.VENKATASUBBAIAH
AGED ABOUT 79 YEARS
W.P.No.14318/2018
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RESIDING AT C-1404, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
6. V.PRAKASIH
S/O VENKATARAO P
AGED ABOUT 46 YEARS
RESIDING AT C-413, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
7. SMT.POORNIMA G
W/O T GOVINDARAJAN
AGED ABOUT 45 YEARS
RESIDING AT C-312, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
8. SUMATHI GIRIDHAR
W/O GIRIDHAR
AGED ABOUT 40 YEARS
RESIDING AT C-1305, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
9. PAVITHRA SHIROBHUSHANAM
W/O MAHESH NARASIMHA WUDALI
AGED ABOUT 38 YEARS
RESIDING AT C-210, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078
10. REKHA MURTHY
W/O N.S.SUNDAR
AGED ABOUT 53 YEARS
RESIDING AT C-910, CASSIA BLOCK
BRIGADE MILLENNIUM APARTMENT
J P NAGAR VII PHASE
BANGALORE - 560 078 ...PETITIONERS
(BY SRI.VIVEK HOLLA, ADV. FOR
SMT.MAYA HOLLA, ADV.)
W.P.No.14318/2018
3
AND:
1. STATE OF KARNATAKA
REPRESENTED BY SHO
PUTTENAHALLI POLICE STATION
BENGALURU - 560 078
2. RAMAKOTESWARARAO DARA (MAJOR)
S/O SRI.PURUSHOTTAM DARA
RESIDING AT CG-12, GROUND FLOOR
CASSIA BLOCK, BRIGADE MILLENNIUM,
J P NAGAR, VII PHASE
BANGALORE - 560 078 ...RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1;
SRI.RAGHAVENDRA R DESAI, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION AND SECTION 482 OF CR.P.C.
PRAYING TO QUASH THE COMPLAINT BEARING
TH
NO.PCR.15653/2017 BEFORE THE 44 ADDITIONAL CHIEF
METROPOLITAN MAGISTGRATE AT BENGALURU (ANNEXURE-A)
AND SET ASIDE THE ORDER DATED 26.12.2017 PASSED IN PCR
NO.15653/2017 BY THE 44TH ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU (ANNEXURE-B),
AND THE FIR REGISTERED BY THE 1ST RESPONDENT HEREIN IN
CRIME NO.0020/2018 (ANNEXURE-C).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT THROUGH
VIDEO CONFERENCE MADE THE FOLLOWING:
ORDER
Heard.
2. "Whether the proceedings in PCR
No.15653/2017 on the file of XLIV Additional Chief
Metropolitan Magistrate, Bengaluru and the proceedings
arising thereon amount to abuse of the process of the
Court?" is the question involved in this case.
W.P.No.14318/2018
3. Respondent No.2 and the petitioners are the
residents of Apartment called 'Brigade Millennium Cassia
Block', J.P.Nagar VII Phase, Bengaluru. The petitioners are
office bearers of the Brigade Millennium Cassia Block
Association and respondent No.2 is the owner of flat
No.CG12 in Cassia Block.
4. The bye-laws of the said Society are at
Annexure-H. Admittedly, the Society is registered under
the Karnataka Societies Registration Act, 1908 and not
under the Karnataka Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and
Transfer) Act, 1972 ('the 1972 Act' for short).
5. The association issued notice dated
09.11.2017 as per Annexure-L1 to respondent No.2
claiming that he is in arrears of Rs.21,750/- towards
maintenance charges and he has tendered cheque only for
Rs.3,000/-. Under the notice, association demanded the
full payment and returned the cheque. Thereafter the
association issued another notice as per Annexure-M dated
W.P.No.14318/2018
21.11.2017 to respondent No.2 demanding arrears of
maintenance charges.
6. On 30.11.2017, the association led by the
petitioners passed resolution as per Annexure-N to
discontinue the common facilities and amenities like water
supply, electricity bill, collection of garbage, services of
electrician, plumber, security persons, house keeping etc.
to the defaulting flat owners/residences, if they fail to pay
the dues.
7. Under the resolution dated 01.02.2021 as per
Annexure-P, at the intervention of the police, the facilities
were restored. In the meantime, on 26.12.2017,
respondent No.2 filed the complaint before XLIV Additional
Chief Metropolitan Magistrate, Bengaluru in PCR
No.15653/2017 seeking prosecution of the petitioners for
the offences punishable under Section 13 of the 1972 Act
and Sections 34, 120, 120-A, 425, 430, 452, 503, 504 and
506 of IPC.
8. The learned Magistrate acting under Section
156(3) of Cr.P.C. referred the said complaint to
W.P.No.14318/2018
respondent No.1-police for investigation. On the basis of
such reference, respondent No.1 registered the First
Information Report in Crime No.20/2018 against the
petitioners for the offences punishable under Sections 425,
430, 452, 503, 504, 506, 120, 120-A read with 34 of IPC.
9. The petitioners seek quashing of the said
proceedings on the following grounds:
(i) The order of reference is without application of
mind and contrary to Section 154(3) of Cr.P.C.;
(ii) Admittedly the association was not registered
under the 1972 Act. Therefore Section 13 of the said Act
was not applicable;
(iii) Out of the offences alleged, only cognizable
offences were the one under Sections 430, 452 of IPC.
Reading of the complaint does not make out such offence.
10. Reiterating the grounds of the petition,
Sri.Vivek Holla, learned Counsel for the petitioners relies
upon the judgment of the Hon'ble Supreme Court in
Priyanka Srivastava and another vs. State of Uttar
Pradesh and others 1
(2015) 6 SCC 287
W.P.No.14318/2018
11. Per contra, Smt.Namitha Mahesh B.G, learned
HCGP for the first respondent and Sri Raghavendra
R.Desai, learned counsel for respondent No.2 submit that
though the second respondent/complainant approached
the jurisdictional Police, no action was taken.
12. Learned counsel for respondent No.2 further
submits that since the second respondent questioned
financial irregularities of the Association, his family was
being harassed by initiating several civil and criminal
actions against him. He further submits that when the
daughter of the second respondent was going through the
10th Standard examinations, petitioners vengefully stopped
water supply to his flat thereby committed the offences
punishable under Sections 430 and 452 of IPC.
13. The whole question in the case is whether the
action of the learned Magistrate in referring the complaint
invoking power under section 156(3) Cr.P.C. is
sustainable. Indisputably what can be referred under
Section 156(3) Cr.P.C. is a complaint alleging cognizable
offence. How to go with the information in cognizable
W.P.No.14318/2018
cases is prescribed in Section 154(3) Cr.P.C. which states
that if the Police refuse or fail to act upon such complaint,
the complainant has to send the substance of such
complaint in writing to the concerned Superintendent of
Police.
14. While considering interplay of Section 154 and
156(3) of Cr.P.C. in para 29 of the judgment in Priyanka
Srivastava's case the Hon'ble Supreme Court held that
the exercise of the power under Section 156 Cr.P.C
warrants application of judicial mind. In was further held
that a litigant on his own whim cannot invoke the
authority of the Magistrate and a principled and really
grieved citizen with clean hands must have free access to
invoke the said power.
15. Further in paraghaphs 30 and 31 of the said
judgment it was held that the complaint in such case shall
be supported by an affidavit to the effect that there was
refusal by the police to register the complaint, then the
complainant approached the concerned Superintendent of
Police and still no action was taken. It was further held
W.P.No.14318/2018
that such pleading itself was not sufficient and that should
be accompanied by the supporting documents.
16. In the entire complaint, there are no
averments that the first respondent Police refused to
register the complaint and therefore he approached the
Superintendent of Police and he too did not take any
action in the matter. Nothing was produced to show that
complaint was sent to Superintendent of Police by
registered post.
17. The complainant himself stated that the
Association was registered under the 1972 Act. If that is
the case, how Section 13 was applicable was not
considered by the Magistrate. The Magistrate while
passing the order of reference under Section 156(3)
Cr.P.C. acted contrary to the ratio of the judgment of the
Hon'ble Supreme Court in Priyanka Srivastava's case and
the letter and spirit of Section 154 and 156(3) of Cr.P.C.
18. Apart from that the material produced by the
petitioners show that the dispute was with regard to the
right and liability of the respondent No.2 as a flat
W.P.No.14318/2018
owner/resident which was civil in nature. That was given
the colour of criminal case. Therefore the impugned
complaint, the order of reference of the complaint to the
Police and the consequential proceedings amount to abuse
of process of the Court.
The petition is allowed. The complaint in PCR
No.15653/2017 on the file of XLIV Addl. Chief Metropolitan
Magistrate and the order of reference dated 26.12.2017 as
per Annexures-A and B respectively and all consequential
proceedings are hereby quashed.
Sd/-
JUDGE
KSR/akc
