Sri Shivaswamy vs The State Of Karnataka
2022 Latest Caselaw 10547 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 08TH DAY OF JULY, 2022   R
                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.2776 OF 2022

BETWEEN:

1.   SRI SHIVASWAMY
     S/O SOMBAYYA
     AGED ABOUT 51 YEARS
     RESIDING AT NO.49/A, 11TH CROSS
     GANESHNAGAR, KODIGEHALLI
     BENGALURU - 560 092.

2.   SRI A.M.MANOHARA
     S/O A.N.MAHADEVAREDDY
     AGED ABOUT 41 YEARS
     RESIDING AT NO.3
     SURYA RESIDENCY
     BALAJI LAYOUT
     BENGALURU - 560 092.

3.   SRI ANAND KARMOKAR
     S/O VIJAYKARMOKAR
     AGED ABOUT 36 YEARS
     RESIDING AT NO.3/11
     1ST MAIN ROAD, AMCO LAYOUT
     KODIGEHALLI,
     NEAR IMPACT COLLEGE
     BENGALURU NORTH
     KARNATAKA - 560 092.

4.   SMT. BASANTHI RANI PAUL
     W/O R.N.PAUL
     AGED ABOUT 54 YEARS
                             2



       RESIDING AT NO.76, 2ND CROSS ROAD
       DINNUR WHITE HOUSE
       R.T.NAGAR
       BENGALURU - 32.

5.     SRI PALASH KARMOKAR
       S/O .L.H.KARMOKAR
       AGED ABOUT 36 YEARS
       S/O VIJAYKARMOKAR
       RESIDING AT NO.3
       1ST MAIN ROAD, AMCP LAYOUT
       SAHAKARNAGAR
       BENGALURU - 560 092.
                                            ... PETITIONERS
(BY SRI NITIN RAMESH, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY KODIGEHALLI POLICE STATION
       REPRESENTED BY
       THE STATE PUBLIC PROSECUTOR
       BENGALURU DISTRICT
       HIGH COURT BUILDINGS
       BENGALURU - 560 009.

2.     SMT.P.C.LEELAVATHI
       W/O CHANDRASHEKAR
       AGED ABOUT 39 YEARS
       RESIDING AT NO.123
       5TH CROSS, 3RD MAIN
       MAHAGANAPATHI NAGAR
       W.C.ROAD
       BENGALURU - 560 040.
                                           ... RESPONDENTS

(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI SAMPAT ANAND SHETTY, ADVOCATE FOR R2)
                               3



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.5835/2019 IN CR.NO.163/2018 FOR THE OFFENCES P/U/S
143, 427, 447, 448, 506 R/W 149 OF IPC REGISTERED BY
KODIGEHALLI POLICE STATION, BENGALURU DISTRICT, PENDING
ON THE FILE OF VII ADDL.C.M.M., BENGALURU AND ALL
CONSEQUENT PROCEEDINGS.

    THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
                             ORDER

The petitioners are before this Court calling in question

proceedings in C.C.No.5835 of 2019 pending before the VII

Additional Chief Metropolitan Magistrate, Bangalore arising out of

Crime No.163 of 2018 registered for offences punishable under

Sections 143, 427, 447, 448, 506 and 149 of the IPC.

2. Heard Sri Nitin Ramesh, learned counsel for petitioners,

Smt. K.P.Yashodha, learned High Court Government Pleader for

respondent No.1 and Sri Sampat Anand Shetty, learned counsel for

respondent No.2.

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

follows:-

The 2nd respondent is the complainant. On 01-08-2018 the

complainant registers a complaint before the Kodigehalli Police

Station that on 13-01-2018 at about 9-00 a.m. the petitioners/

accused have allegedly trespassed into her house, threatened her

tenants to vacate the house, caused loss by disconnecting

electricity. It is further alleged that the accused even have

trespassed into houses belonging to others. Based upon the said

complaint, a criminal case came to be registered in Crime No.163 of

2018 for offences punishable under Sections 143, 427, 447, 448,

506 and 149 of the IPC. The police, on conduct and completion of

investigation, filed a charge sheet against the petitioners for the

aforesaid offence in C.C.No.5835 of 2019. On filing of the charge

sheet and cognizance being taken by the learned Magistrate, the

petitioners have knocked the doors of this Court in the subject

petition. This Court, by its order dated 19-04-2022, has granted an

interim order of stay of all further proceedings against the

petitioners and the proceedings have since then not proceeded

further.

4. The learned counsel appearing for the petitioners would

contend that the issue in the case at hand is purely civil in nature,

the complainant is trying to arm twist the petitioners for having lost

all the litigations concerning the property. The learned counsel

would further submit that the incident, according to the complaint,

had taken place on 13-01-2018 but the complaint is registered after

about seven months on 2-08-2018. If trespass, intimidation or any

other offence that is alleged had happened on 13-01-2018 nothing

stopped the complainant from registering the crime immediately,

but is registered after 7 months. This fact would be enough

circumstance to demonstrate mala fide action on the part of the

complainant in registering the complaint.

5. On the other hand, the learned counsel representing the

2nd respondent/complainant would seek to refute the submissions

to contend that the complainant is in possession of the property

and the petitioners had sought to trespass into the property and

destroyed belongings of all the persons who are on rent in the

property belonging to the complainant. However, he would accept

the fact of registering the complaint after seven months and

attributes the said delay for following up in the civil proceedings

that were pending between the parties. He would seek that it is a

matter of trial in which the petitioners will have to come out clean.

6. The learned High Court Government Pleader would also toe

the lines of the learned counsel for the 2nd respondent in her

submission that this is a matter of trial for the petitioners to come

out clean since charge sheet is already filed by the police.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and perused the material

on record.

8. The allegation of the complainant in the complaint

registered on 02-08-2018 is that the petitioners seven months

ago trespassed into the property and created ruckus, took away

the belongings and have intimidated the tenants residing in the

property allegedly belonging to the complainant. It is the case of

the petitioners that the land in Sy.No.11 of Kodigehalli Village

Yelahanka Hobli, Bangalore North Taluk was acquired by the

Bangalore Development Authority ('BDA' for short) by issuance of

preliminary notification on 3-01-1985 and later a final notification

on 25-09-1986 for the benefit of NTI Housing Co-operative Society.

The 1st petitioner by way of a registered sale deed dated

14-03-2013 purchased the said property from the Society and later

got all the revenue records mutated into his name. Likewise, all the

petitioners have purchased their portions of property on different

dates by way of registered sale deeds and are in possession of the

property and residing in the said addresses.

9. It is a matter of record that the complainant along with one

Channabasanagouda Polis Patil and others challenged the aforesaid

acquisition made in the year 1986 before this Court in Writ Petition

No.4470 of 2019. This Court by its order dated 2.02.2022 dismissed

the claim of the complainant and another by clearly holding that

possession was handed over to the Society on 25-10-2003 after the

BDA taking over possession on 13-06-2002. The observations of

this Court, insofar as they are germane for the present lis, are as

follows:

"8. The material on record disclose that it is the specific contention urged by the petitioners that petitioner No.1 had acquired the suit schedule property under a registered sale deed dated 10-08-1983 and formed the lay-

out in the same and sold some of the sites in favour of petitioners 2 to 9 during the period 31-03-1995 to 4-08- 2014. Meanwhile, the subject land was notified for acquisition vide preliminary notification dated 3-01- 1985 and final notification dated 22-09-1986; since there were litigations including W.P.No.292 of 1987 challenging the said notifications till the same were disposed of on 11.10.1993, the award was passed on 14-09-1995, pursuant to which, possession was taken by the SLAO on 15-02-2002 followed by a notification dated 13-06-2002 issued under Section 16(2) of the L.A.Act; thereafter, the subject land was handed over to the possession of 3rd respondent-Society on 25-10- 2003, pursuant to which, sites have been sold/allotted in favour of its members including respondents 5 to 9. It is therefore, clear that petitioners 2 to 9 herein claimed to be the purchasers of portions of the subject land after issuance of preliminary and final notifications dated 3-01- 1985 and 22-09-1986 respectively; It follows there from that petitioners 2 to 9 being subsequent purchasers do not have locus standi to challenge the preliminary and final notifications, which were undisputedly issued prior to them purchasing their respective portions as stated supra and consequently, the claim and contention of petitioners 2 to 9 is not maintainable and liable to be rejected, since the said sale deeds in favour of petitioners 2 to 9 after issuance of the aforesaid notifications are null and void as held by the Apex Court in the case of Shivkumar and another v. Union of India and others - (2019) 10 SCC 229."

... ... ... ...

16. A perusal of the said order makes it amply clear that the same cannot be treated as conclude as having reserved any liberty in favour of petitioner No.1 and consequently, the said order in W.A.No.1993 of 2013 cannot be relied upon by petitioner No.1 in support of his case. In this context, it is necessary to state that despite repeatedly and unsuccessfully challenging the impugned notification, petitioner No.1 is attempting to circumvent all the earlier orders passed against him with mala fide intention and ulterior motives which cannot be countenanced by this Court in the present petition. Under these circumstances, even this

contention urged by the petitioners is liable to be rejected.

17. In view of the aforesaid discussion and the material on record obtaining in the instant case, I do not find any merit in this petition and the same is liable to be dismissed."

(Emphasis supplied)

The complainant in the impugned complaint along with others

preferred a review petition before the learned Judge who had

rejected their claim in Review Petition No.394 of 2022 by order of

this Court dated 21-04-2022 holding that the order did not suffer

from any error apparent on the face of the record. This was in

vindication of the claim of the petitioners that they are in

possession of the property pursuant to the sale deeds executed in

their favour and the contrary claim was rejected by this Court.

10. In the teeth of the claim of the complainant, and the

order passed by this Court, it is germane to notice the complaint

that is registered by the complainant. The complaint is registered

on 02.08.2018 for an incident that has happened seven months ago

i.e., on 13-01-2018 at 9.00 a.m. The narration in the complaint

clearly indicates that there are civil proceedings pending between

the parties in O.S.No.403 of 2018 to 407 of 2018. The complaint

reads as follows:

¢£ÁAPÀ:01/08/2018 EAzÀ,

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DzÀÝjAzÀ ¸ÀzÀj J¸ï.²ªÀ¸Áé«Ä, J.JA.ªÀÄ£ÉÆúÀgï, D£ÀAzï, PÀªÀiÁðPÀgï, ²æêÀÄw §¸ÀAw gÁt ¥Ë¯ï, ¥Á¯Éñï PÀªÀiÁðPÀgï ºÁUÀÆ EvÀgÀgÀ «gÀÄzÀÝ ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¹ £ÀªÀÄUÉ ¸ÀÆPÀÛ gÀPÀëuÉAiÀÄ£ÀÄß ¤Ãr £ÁåAiÀÄ zÉÆgÀQ¹PÉÆqÀ¨ÉÃPÉAzÀÄ vÀªÀÄä°è PÉÆÃgÀÄvÉÛêÉ.

ªÀAzÀ£ÉUÀ¼ÉÆA¢UÉ, vÀªÀÄä «±Áé¹ ¸À»/-

(°Ã¯ÁªÀw ¦.¹.)"

The Police after investigation filed a charge sheet in the case

against the petitioners. The summary of the charge sheet as found

in column No.7 reads as follows:

"zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ PÁ®A £ÀA.2 & 4 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ J1 jAzÀ J5 gÀªÀgÉV£À DgÉÆævÀgÀÄ ¢£ÁAPÀ 13/01/2018 gÀAzÀÄ ¨É½UÉÎ ¸ÀĪÀiÁgÀÄ 9-00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ PÉÆrUɺÀ½î ¥Éưøï oÁuÁ ¸ÀgÀºÀ¢Ý£À, CªÉÆÌà ¯ÉÃOmï, 1£Éà PÁæ¸ï£À°ègÀĪÀ ¥ÁnÃ¯ï «ºÁgï ¯ÉÃOmï £À°ègÀĪÀ ¸ÉÊmï £ÀA.1, 2 , 4, 8 & 9 gÀ ¸ÀéwÛUÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁr ªÀÄ£ÉUÀ½UÉ C¼ÀªÀr¹zÀÝ «zÀÄåvï «ÄÃlgï ¨ÉÆÃqïðUÀ¼À£ÀÄß QvÉÛ¸ÉzÀÄ, ªÀÄ£ÉUÀ¼À°è ªÀ¸ÀªÁVzÀݪÀjUÉ F ¸ÉÊlÄUÀ¼ÀÄ £ÀªÀÄUÉ ¸ÉÃjzÀÄÝ, F §UÉÎ £ÁªÀÅ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ ºÀÆrgÀÄvÉÛêÉ, F PÀÆqÀ¯Éà ¤ÃªÀÅ ªÀÄ£ÉUÀ¼À£ÀÄß SÁ° ªÀiÁrPÉÆAqÀÄ ºÉÆÃV JAzÀÄ ºÉzÀj¹ ªÀÄ£ÉAiÀÄ ¸ÁªÀiÁ£ÀÄUÀ¼À£ÀÄß ºÉÆgÀUÉ J¸ÉzÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVzÀݪÀgÀ£ÀÄß SÁ° ªÀiÁr¹gÀÄvÁÛgÉ.

DgÉÆævÀgÀÄ ¸ÀéwÛ£À «µÀAiÀĪÁV ¹¹ºÉZï-15£Éà £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ ºÀÆrzÀÄÝ, zÁªÉ «ZÁgÀuÉAiÀÄ°ègÀĪÁUÀ¯Éà ¸ÀévÀÄÛUÀ½UÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁr, UÀ¯ÁmÉ ªÀiÁr, ªÀÄ£ÉUÀ¼À°èzÀݪÀjUÉ ¨ÉzÀj¹ CªÀgÀ UÀȺÉÆÃ¥ÀAiÉÆÃV ªÀ¸ÀÄÛUÀ¼À£ÀÄß ºÉÆgÉUÉ ºÁQ ªÀÄ£ÉAiÀÄ£ÀÄß SÁ° ªÀiÁr¹, «ÄÃlgï ¨ÉÆÃqïðUÀ¼À£ÀÄß QvÉÛ¸ÉzÀÄ, ¸ÀéwÛ£À ªÀiÁ°ÃPÀjUÉ CPÀæªÀÄ £ÀµÀÖªÀÅAlÄ ªÀiÁrgÀĪÀÅzÀÄ ¥ÀæPÀgÀtzÀ vÀ¤SɬÄAzÀ ¸Á©ÃvÁVgÀÄvÀÛzÉ.

DzÀÝjAzÀ DgÉÆævÀgÀ ªÉÄîÌAqÀ PÀ®A jÃvÁå ²PÁëºÀð C¥ÀgÁzsÀªÉ¸ÀVzÀÄÝ, F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."

What is stated in the complaint is verbatim repeated in the

summary of the charge sheet. The complaint itself was registered

after seven months of the alleged incident that too for offences

punishable under Sections 427 and 447 of the IPC as preliminary

offences.

11. In the light of the said allegations, it is necessary to

notice Sections 447 and 427 of the IPC. Section 447 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."

Section 447 deals with punishment for criminal trespass and directs

that whoever commits criminal trespass shall be punished. Section

441 defines what is criminal trespass and reads as follows:

"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"."

Section 427 deals with mischief causing damages to one's property.

Mischief is as defined under Section 425 of the IPC.

Both Sections 425 and 427 of the IPC read as follows:

"425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."

... ... ... ...

"427. Mischief causing damage to the amount of fifty rupees.--Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

Section 447 which deals with criminal trespass hinges upon the

complainant being in possession of the property, as one can

trespass a property not belonging to the accused but belonging to

the complainant and cause mischief or damage under Section 427

of the IPC. Therefore, Section 447 of the IPC which directs

punishment for criminal trespass has in itself, a civil flavour.

Therefore, Section 447 as defined under Section 441 of the IPC is

an interplay between a civil right and a crime.

12. If possession is not with the complainant, she can hardly

contend that the accused have trespassed into the property of the

complainant. Her possession in the case at hand is determined by

this Court in the aforesaid writ petition while observing that the

BDA had already acquired the property for a particular purpose in

the year 1986 and the complainant being in possession was not

accepted. Civil cases are also pending against each other.

Therefore, if the complainant is not in possession of the property,

there can be no allegation of criminal trespass into such property,

in which accused themselves are in possession.

13. Criminal trespass as obtaining under Section 447 of the

IPC and defined under Section 441 of the IPC can be committed

only when a person enters into or upon any property, which is in

possession of another with intent to commit an offence or

intimidate, insult or annoy any person in possession of such

property. If possession itself is not with the complainant as is held

by this Court (supra), there can be no offence of criminal trespass

into the property not belonging to the complainant. If there is no

criminal trespass into the property, causing damage under Section

427 of the IPC, by way of mischief of destruction of property also

cannot be alleged, as they are inseparable, in the peculiar facts of

this case.

14. The contention of the learned counsel appearing for

respondent No.2 that respondent No.2 is in possession of the

property holds no water, in the light of the finding rendered by the

Co-ordinate Bench of this Court albeit in a different proceeding. The

other ground that the 2nd respondent would urge is that the criminal

petition is preferred after 3 years after registration of the crime and

the petition should be dismissed on account of delay. This

statement is noted only to be repelled, as delay in every case would

not disentitle the accused for a relief if it is available in law and this

Court at its discretion, in exercise of its power under Section 482 of

the Cr.P.C., to prevent miscarriage of justice, can interfere despite

delay, in a given case.

15. The judgments relied on by the learned counsel for the

2nd respondent in the case of PRITI SARAF AND ANOTHER v.

STATE OF NCT OF DELHI & ANOTHER - 2021 SCC Online 206

and in the case of SAU.KAMAL SHIVAJI POKARNEKAR v. THE

STATE OF MAHARASHTRA AND OTHERS - (2019) 14 SCC 350

are of no avail as they are inapplicable to the facts of the case at

hand. PRITI SARAF was concerning offences punishable under

Sections 406 and 420 of the IPC. The finding of the Apex Court

therein was inducement and criminal breach trust was writ large in

the facts of that case. The Apex Court holds that merely because

the matter is civil in nature or civil proceedings are pending, the

Court should not quash the proceedings. The same goes with the

case of KAMAL SHIVAJI POKARNEKAR (supra) which would also

direct that merely because civil proceedings are pending, the same

should not be quashed if the complaint discloses prima facie

offence. There again, the offences were of forgery and using a

forged document to gain benefit. It is considering those offences

qua the facts obtaining in those cases the Apex Court holds that

jurisdiction under Section 482 of the Cr.P.C. ought not to have been

exercised.

16. The facts obtaining in the case at hand are clearly

different from the facts obtaining before the Apex Court. The case

at hand is for offence under Section 447 of the IPC, for which the

most relevant factor would be exclusive possession of the property,

on which the accused is alleged to have trespassed. If exclusive

possession is not with the complainant, the complaint of criminal

trespass into the property and damage to that property under

Section 427 of the IPC can hardly be alleged, as observed

hereinabove. The petitioners have also placed abundant material by

way of documents that are unimpeachable and of sterling quality,

which would undoubtedly overpower the documents and

submissions of the learned counsel appearing for the respondent

No.2. If Sections 427 and 447 of the IPC cannot be seen to be

present in the case at hand, the other offences for the ones

punishable under Sections 448, 506 and even 143 of the IPC can

hardly be alleged, as Section 447 deals with criminal trespass into a

property. Section 448 makes house trespass a punishment and

Section 427 damage to the property by way of mischief.

17. If the possession of the property itself is in doubt, driving

home the offences beyond all reasonable doubt, would without

doubt become doubtful. On such a premise, if further proceedings

are permitted to continue against the petitioners, notwithstanding

the fact that charge sheet has been filed by the Police, would

become an abuse of the process of law and result in miscarriage of

justice.

18. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal Petition is allowed.

        (ii)     All proceedings in C.C.No.5835 of 2019 pending

                 before   the   VII    Additional    Chief   Metropolitan

Magistrate, Bangalore stand quashed, qua petitioner.

(iii) It is made clear that the observations made in the

course of the order are only for the purpose of

consideration of the case of the petitioner under

Section 482 of Cr.P.C. and the same shall not bind or

influence any further proceedings before any judicial

fora.

Consequently, I.A.No.2/2022 stands disposed.

Sd/-

JUDGE

bkp CT:MJ