Ashok vs The Special Land Acquisition ...
2022 Latest Caselaw 2534 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH


           DATED THIS THE 16TH DAY OF FEBRUARY 2022

                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA


         WRIT PETITION NOS.102187-190/2016 (GM-RES)

BETWEEN:

1.   ASHOK
     S/O MURAGEPPAGOUDA PATIL,
     AGE: YEARS, OCC. AGRICULTURE,
     R/O. JALIKATTI K.D.,
     TQ. MUDHOL, DIST. BAGALKOTE.

2.   HOLEBASAPPA
     S/O MURIGEPPAGOUDA PATIL,
     AGE: YEARS, OCC. AGRICULTURE,
     R/O. JALIKATTI K.D.,
     TQ. MUDHOL, DIST. BAGALKOTE.

3.   PARWATEWWA
     W/O VEERBHADRAPPA SELLIKERI,
     AGE: YEARS, OCC. AGRICULTURE,
     R/O. JALIKATTI K.D.,
     TQ. MUDHOL, DIST. BAGALKOTE.

4.   VEERBHADRAPPA
     S/O. BASAPPA SELLIKERI,
     AGE: YEARS, OCC. AGRICULTURE,
     R/O. JALIKATTI K.D.,
     TQ. MUDHOL, DIST. BAGALKOTE.

                                                ...PETITIONERS.

(BY SHRI F V PATIL, ADVOCATE.)
                                2




AND:

1.   THE SPECIAL LAND
     ACQUISITION OFFICER,
     MALAPRABHA PROJECT-I,
     BAGALKOTE.

2.   THE EXECUTIVE ENGINEER,
     MBC.DIV.I
     GADDANAKERI, BAGALKOTE.

3.   THE STATE OF KARNATAKA,
     REPRESENTED BY
     PRINCIPAL SECRETARY,
     M.S. BUILDING,
     DR.AMBEDKAR VEEDHI,
     BENGALURU 560001.

4.   THE ADMINISTRATIVE SHIRESTEDAR,
     ATTACHED TO SENIOR
     CIVIL JUDGE AND JMFC, MUDHOL,
     TQ. MUDHOL, DIST. BAGALKOTE.

                                               ...RESPONDENTS.

(BY SHRI RAMESH N MISALE, ADVOCATE, FOR R.2;
SHRI RAMESH CHIGARI, HCGP, FOR R.3;
R.1 AND R.4 - NOTICE SERVED.)

     THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, 1950 READ WITH SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO:

     A.    QUASH THE IMPUGNED ORDER DATED 18.09.2015 IN
LAC NO.219/2009, PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC, MUDHOL, VIDE ANNEXURE-D;

       B.  QUASH THE IMPUGNED ORDER DATED 15.02.2016 IN
LAC NO.219/2009, PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC, MUDHOL, SO FAR IT RELATES TO INIATION OF
CRIMINGAL PROCEEDINGS AGAINST PETITIONER, VIDE ANNEXURE-F,
ETC.,.
                                 3




    THESE PETITIONS COMING ON FOR PRELIMINARY HEARING B-
GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:

                              ORDER

The learned counsel representing the respective parties to

the lis in unison submit that the issue stands covered by the

judgment of the co-ordinate Bench of this Court in

W.P.No.102611/2016 (GM-RES), disposed off on 17.3.2017,

wherein the co-ordinate Bench of this Court, on an identical

issue, has held as follows:

2. This petition is filed seeking quashing of the order and findings of the learned Senior Civil Judge & JMFC, Mudhol in LAC No. 202/2010 dated 08.03.2016 wherein the learned magistrate has directed the Administrative Sheristedar of his Court to lodge a complaint against the petitioner for the offences punishable u/S 193, 196, 465, 468 and 471 of IPC.

3. The learned counsel for the petitioner brought to the notice of this Court a judgment of the Apex Court in the case of Sharad Pawar V. Jagmohan Dalmiya and Others reported in (2010) 15 SCC 290 wherein the Apex Court dealing u/S 195 and 340 of Cr.P.C. have set some guidelines referring to Sec. 340 of Cr.P.C. The procedure to be followed by the Civil Courts while referring the complaint to the Criminal Courts for the offences punishable u/S 193, 196, 465, 468 and 471 of IPC.

This Court also taking into consideration the said judgment of the Apex Court has reiterated the said principles in W.P. No. 107794/2016, particularly at

paragraph No.6, this Court has observed in the following manner.

"6. The Hon'ble Apex Court in similar circumstances was pleased to hold that in the event of the Court coming to the conclusion that a complaint under Section 340 of the Code is liable to be lodged, it ought to give an opportunity of hearing to the persons who are sought to be proceeded against. The Hon'ble Apex Court has observed as follows:

"6. By the impugned order, the learned Single Judge has directed that an enquiry be made against Defendants 1 to 6 in the suit. Before passing of the impugned order in the application under Section 340 CrPC, the learned Single Judge did not conduct a preliminary enquiry as contemplated under Section 340 CrPC. The said order is challenged before us in these appeals by the defendants in the suit.

7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to file complaint against Defendants 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being

heard to the defendants, which was admittedly not done.

8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry."

---

4. Even on careful perusal of Sec. 340 of Cr.P.C., before referring the complaint in writing to the jurisdictional Criminal Court, the Court which found it expediant to refer a complaint has to conduct preliminary enquiry and record its findings to that effect that the offences being committed, after providing an opportunity to the other side and thereafter has to pass appropriate orders.

5. In view of the said provision and as well as the above said decisions, I am of the opinion, the order passed by the learned Civil Judge & JMFC, Mudhol, which is impugned in this petition is bad in law and the same is liable to be quashed. Hence, the following order is passed.

ORDER

Petition is allowed. The order dated 06.11.2015 passed in LAC No. 202/2010 on the file of Senior Civil Judge & JMFC, Mudhol, is hereby quashed. The matter stands remitted to the Senior Civil Judge & JMFC, Mudhol, to pass appropriate orders after providing opportunity to the petitioner herein and after following due procedure as contemplated u/S 340 of Cr.P.C. and also the principles laid down in the above noted case. Ordered accordingly.

2. In the light of the submission and the judgment of

the co-ordinate Bench covering the issue on all its fours, the

subject writ petitions are disposed off on the same reasoning as

in the afore-narrated writ petition.

Ordered accordingly.

SD JUDGE Mrk/-