Karnataka High Court

Smt Lakshmi Devi vs State Of Karnataka on 28 March, 2022

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF MARCH, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.3824 OF 2021

BETWEEN:

1.     SMT.LAKSHMI DEVI
       W/O THIMMAPPA,
       AGED ABOUT 61 YEARS,
       HOUSE WIFE CUM AGRICULTURIST,

2.     SRI G.THIMMAPPA
       S/O GOVINDAPPA,
       AGED ABOUT 70 YEARS,
       SCHOOL TEACHER (RETD.)
       AGRICULTURIST,

       BOTH ARE RESIDENTS OF
       M.G.DIBBA VILLAGE,
       HOSADURGA TALUK,
       CHITRADURGA DISTRICT,
       PRESENTLY RESIDENT OF
       OPP. POST OFFICE, HOSADURGA,
       CHITRADURGA DISTRICT - 577 527.
                                              ... PETITIONERS

(BY SRI SATISH R.GIRJI, ADVOCATE (VIDEO CONFERENCING))

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS
       HOSADURGA POLICE,
       CHITRADURGA DISTRICT,
                              2



     CHITRADURGA - 577 527.

2.   SMT.BHEEMAKKA
     W/O ERANAIAK,
     R/O GORAVINAKALLU VILLAGE,
     KASABA HOBLI,
     HOSADURGA TALUK,
     CHITRADURGA DISTRICT - 577 527.
                                               ... RESPONDENTS

(BY SRI SHANKAR H.S., HCGP FOR R1 (PHYSICAL HEARING);
    R2 IS SERVED AND UNREPRESENTED)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER PASSED BY THE
LEARNED     II   ADDL.DISTRICT   AND      SESSIONS        JUDGE,
CHITRADURGA IN SPL.C(SC/ST) NO.28/2020 (CR.NO.329/2020)
DATED 08.12.2020 AND ALSO CHARGE SHEET FILED IN
SPL.C(SC/ST) NO.28/2020 FOR THE OFFENCE UNDER SEC.504,
506 R/W 34 OF IPC AND SEC.3(1)(R), 3(1)(S), 3(2)(V), 3(2)(V-A) OF
SC/ST (POA) ACT, VIDE ANNEXURE A AND B AND ETC.,


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

                            ORDER

The petitioners are before this Court calling in question

order dated 08.12.2020, in Spl.C.(SC/ST) No.28/2020, passed

by the II Additional District and Sessions Judge, Chitradurga

and the charge sheet in crime No.329/2020, for the offences

under Sections 504, 506 of the IPC r/w. Section 34 of the IPC,

Sections 3(1)(r), 3(1)(s), 3(2)(v), 3(2)(v-a) of the Scheduled Castes

and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (for

short 'the Act').

2. Heard Sri Satish R. Girji, learned counsel for the

petitioners and Sri Shankar H.S., learned High Court

Government Pleader appearing for respondent No.1.

3. Brief facts as projected by the prosecution are as

follows:

Respondent No.2 - complainant, is the owner of land in

survey No.105/P4 measuring 1 acre, out of 2 acres 27 guntas

that is situated in survey No.105 of Goravinakallu village,

Kasaba Hobli, Hosadurga taluk, Chitradurga District. It is

alleged that on 24.04.2002, the land was sold for a consideration

of Rs.50,000/- per acre. It transpires that after the sale,

respondent No.2 - complainant (vendor) still interfered with the

property, which by then had belonged to the petitioners by virtue

of the sale deed that was entered into on 24.04.2002. This drove

the petitioners to institute a suit in O.S.No.105/2011, seeking

injunction against the complainant. The present complainant

was defendant No.1 in the said suit. The suit was decreed by a

judgment of the civil Court dated on 03.09.2014. The said

judgment and decree has become final.

4. The family of the complainant also institute a suit in

O.S.No.157/2011, seeking a relief of declaration, partition

separate possession and permanent injunction against the

complainant herein in which, the petitioner was defendant No.3,

for having purchased the property from the hands of the

complainant. This suit is dismissed holding that the family of

the complainant did not have any right over the property that

was already sold in favour of defendant No.3 therein, the present

petitioner.

5. The complainant herself instituted a suit in

O.S.No.58/2016 against the petitioner and another, seeking

declaration that the sale deed executed by the plaintiff -

complainant, in favour of the defendant - petitioner No.1, was a

sham. This suit is also dismissed by a judgment dated

01.02.2020, by the civil Court. After all these proceedings, a

complaint is registered on 22.09.2020, alleging that on

25.02.2020, the petitioners have hurled such abuses in a place

of public view, which would become offences under the Act and

for the offences punishable under Sections 420, 504, 506 read

with Section 34 of the IPC. The police after investigation have

filed a charge sheet against the petitioners for the offences 504,

506 and 34 of IPC and Sections 3(1)(r), 3(1)(s), 3(2)(v), 3(2)(v-a) of

the Act, dropping Section 420 of the IPC. It is at that juncture,

the petitioners have knocked the doors of this Court in the

subject petition.

6. Learned counsel for the petitioners would contend that

the incident even according to the complainant has taken place

on 25.02.2020 and the complaint is registered on 22.09.2020,

seven months after the date of the alleged incident. After failing

in all the civil proceedings against the petitioners, the

complainant has resorted to in setting the criminal law in

motion for the aforesaid offences, which mala fide and should

not be permitted to continue. This Court in exercise of inherent

jurisdiction under Section 482 of Cr.P.C., should quash such

proceedings.

7. The complainant - respondent No.2 is served and

unrepresented.

8. Learned High Court Government Pleader would justify

the action in registering the crime and filing a final report

against the petitioners for the offences punishable under the Act

or the IPC and would submit that it is a matter of trial and the

petitioners have to come out clean.

9. I have given my anxious consideration to the

submissions made by the learned counsel for both the parties

and perused the material on record.

10. The afore-narrated facts are not in dispute, are

therefore not reiterated. The sale that took place on 24.04.2002,

results in three proceedings. One instituted by the family

members of the complainant seeking partition of the property,

which included the sale of the property to petitioner No.1, which

suit is dismissed; the other instituted by petitioner No.1 in

O.S.No.105/2011 seeking injunction against the complainant,

the suit is decreed and the third suit is filed by the complainant

in O.S.No.58/2016 seeking the sale that took place on

24.02.2002, to be a sham, which is also dismissed.

11. After the dismissal of the suit, which came about on

01.02.2020, the complaint is registered on 22.09.2020, for an

alleged incident said to have taken place on 25.02.2020.

12. On the aforesaid facts, dates and events, if the

complaint or the narration in the charge sheet is noticed, it

would unmistakably indicate that the complainant has set the

criminal law in motion to wreck vengeance or as a counter blast

to the proceedings that are instituted by petitioner No.1. It

becomes ostensible for the reason that the complainant herself

files a suit holding that the sale deed entered into between

petitioner No.1 and the complainant to be a sham, being

dismissed. Section 420 of the IPC alleged is dropped in the

charge sheet. Sections 504 and 506 of the IPC, which deal with

intimidation, if intimidation has happened on 25.02.2020,

nothing stopped the complainant to register a complaint

immediately. The intimidation cannot hold on for seven months

for registration of a complaint against the petitioners for offences

punishable under Sections 504 and 506 of IPC, which also

cannot be laid against the petitioners. Insofar as the allegations

under the Act, neither the complaint nor the charge sheet clearly

narrates as to whether the abuses hurled against the

complainant were in public places or places of public view.

Therefore, permitting further proceedings to continue insofar as

offences under the Act are concerned, would fall foul of the

judgment of the Apex Court rendered in the case of HITESH

VERMA V. STATE OF UTTARAKHAND, reported in (2020) 10

SCC 710, wherein it has held as follows:

"16. There is a dispute about the possession of the land which is the subject-matter of civil dispute between the parties as per Respondent 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the civil court,

any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

17. In another judgment reported as Khuman Singh v.

State of M.P. [Khuman Singh v. State of M.P., (2020) 18 SCC 763 : 2019 SCC OnLine SC 1104] , this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar" Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs

to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.

19. This Court in a judgment reported as Subhash Kashinath Mahajan v. State of Maharashtra [Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 : (2018) 3 SCC (Cri) 124] issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India v. State of Maharashtra [Union of India v. State of Maharashtra, (2020) 4 SCC 761 : (2020) 2 SCC (Cri) 686] reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked. The Court held as under : (Union of India case [Union of India v. State of Maharashtra, (2020) 4 SCC 761 : (2020) 2 SCC (Cri) 686] , SCC p. 797, para 52)

"52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the

faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC."

20. Later, while examining the constitutionality of the provisions of the amending Act (Central Act 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] held that proceedings can be quashed under Section 482 of the Code. It was held as under : (SCC p. 751, para 12)

"12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised."

21. In Gorige Pentaiah [Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531 : (2009) 1 SCC (Cri) 446] , one of the arguments raised was non-disclosure of the caste of the accused but the facts were almost similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale [Ashabai Machindra Adhagale v. State of Maharashtra, (2009) 3 SCC 789 : (2009) 2 SCC (Cri) 20] as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the

reason that the caste of the accused was not mentioned in the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment.

22. The appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because Respondent 2 was a Scheduled Caste since the property dispute was not on account of the fact that Respondent 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar any person to protect his rights by way of a procedure established by law."

(Emphasis supplied)

In the light of the afore-extracted judgment and the facts

obtaining in the case at hand, the offences punishable under the

Act also cannot be laid against the petitioners. Thus, any

further proceedings permitted to be continued in the case at

hand, would become an abuse of the process of law and result in

miscarriage of justice.

13. For the aforestated reasons, the following:

ORDER

(i) The criminal petition is allowed.

(ii) The order dated 08.12.2020, in Spl.C.(SC/ST)

No.28/2020, passed by the II Additional District and