Karnataka High Court

Smt.Bhageerathi Alias Poonam vs The State Of Karnataka on 15 September, 2022

Bench: J.M.Khazi

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      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 15TH DAY OF SEPTEMBER, 2022

                          BEFORE
             THE HON'BLE MS. JUSTICE J.M.KHAZI


         WRIT PETITION NO.100396 OF 2017 (GM-RES)

BETWEEN

1.    SMT.BHAGEERATHI ALIAS POONAM
      W/O SACHIN SUTAR
      AGE: 34 YEARS,
      OCC: HOUSEHOLD WORK & AGRICULTURE,
      R/O # GALLI NO.10,
      SAHARA NAGAR, RUI, KOLHAPUR,
      MAHARASHTRA, PIN: 416116


2.    SMT.VANDANA W/O RAMDAS SUTAR,
      AGE: 30 YEARS,
      OCC: HOUSEHOLD WORK & AGRICULTURE,
      KURLI, TQ. CHIKODI,
      DIST. BELAGAVI, PIN: 591241


3.    SMT.SHARADA W/O MAHADEV SUTAR
      AGE 28 YEARS,
      OCC: HOUSEHOLD WORK AGRICULTURE,
      R/O # GALLI NO.10,
      SAHARA NAGAR, RUI,
      KOLHAPUR, MAHARASHTRA PIN: 416116

                                             ...PETITIONERS
(BY SRI. RAMESH N MISALE, ADV.,)

AND
1.    THE STATE OF KARNATAKA
      REPRESENTED BY
      SUPERINTENDENT OF POLICE,
      BELAGAVI DISTRICT, BELAGAVI.
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2.   THE P.S.I.
     KUDACHI POLICE STATION,
     TAL:RAIBAG, DIST: BELAGAVI.


3.   SMT. KALIMOON JINNEDSAB PINNITHOD
     AGE: 53 YEARS, OCC: HOUSEHOLD,
     R/O. KUDACHI VILLAGE, GUNDWAD ROAD,
     TQ: RAIBAG, DIST: BELAGAVI.

                                                  ...RESPONDENTS

(BY SRI. RAMESH CHIGARI, HCGP FOR R1 AND R2;
R3-PETITION DISMISSED)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR & CHARGE SHEET FILED
AGAINST THE PETITIONERS i.e., ACCUSED NO. 6, 7 & 8,
RESPECTIVELY, IN CR.NO.12/ 2015 OF KUDACHI P.S AND BEING
TRIED AS C.C. NO.650/2015, PENDING ON THE FILE OF LEARNED
ADDITIONAL CIVIL JUDGE AND JMFC, RAIBAG.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 23.08.2022, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

In this writ petition, the petitioners who are

arraigned as accused Nos.6 to 8 in Crime No.12/2015 of

Kudachi P.S., and in which after investigation a charge

sheet came to be filed in C.C.No.650/2015 for the offences

punishable under sections 143, 147, 341, 323, 504, 506

read with 149 IPC, are seeking quashing of the said

proceedings.

2. Brief facts leading to the filing of the petition

are that, during 1933-34, lands in R.S.No.359 of Kudachi

more particularly Hissa No. 359/1 to 359/16 including

R.S.No.359/15/1 and 359/15/2 are granted to Harijan

Community of Kudachi and the name "Samasta Mahar" is

entered in the records of rights. During 1976-77, the

father of petitioners viz., Vinod Sutar, who is a carpenter

by profession has constructed a house and workshop in

Sy.No.359/16 measuring 200 x 100 ft.

2.1. During 1994, one Lajamma Mevegar has created

a bogus sale deed in respect of Sy.No.359/15/01

measuring 1 acres 10 guntas, and 1 acre 11 guntas during

June-2008, and allegedly sold the same in favour of

Mohammed Hussain Rohile and Altaf Hussain Rohile,

respectively. When the alleged purchasers tried to

interfere, Vinod Sutar filed O.S.No.427/2008.

2.2. Such being the case, on 15.01.2015 at about

7.45 p.m., Mohammed Hussain Rohile and Altaf Hussain

Rohile along with 10 other gundas entered into the

property, damaged the machineries and also assaulted

Vinod Sutar and his wife Kamala. In this regard she has

filed a complaint in Crime No.11/2015 of Kudachi P.S.

2.3. As a counter-blast and after thought on

16.01.2015, sister of accused No.1 by name Kalimoon filed

a complaint against Vinod Sutar, his wife, sons and others

including the petitioners, who are all married and residing

in their matrimonial houses at Maharashtra and interior

Chikodi Taluk. In this regard on 03.09.2015, charge sheet

came to be filed against Vinod Sutar and others.

3. Aggrieved by the same, petitioners have come

up with this writ petition seeking quashing of the

proceedings, which is illegal, arbitrary and violative of the

fundamental rights guaranteed by the Constitution of India

in general and Article 21 in particular. The complaint

allegations are false, imaginary and illogical. Without

investigating whether petitioners were infact present at

the scene of occurrence, mechanically a charge sheet

came to be filed. The dispute between the parties is civil in

nature. Prima-facie the criminal proceedings are not

tenable against the petitioners.

4. In support of his arguments, learned counsel for

petitioners has relied upon the following decisions:

i) Mahindra and Mahindra Financial Services Limited

and another Vs. Rajiv Dubey1 (Mahindra's Case)

ii) Mohammed Ibrahim and others Vs. State of Bihar

and another2 (Mohammed's case)

5. On the other hand, learned HCGP submits that

after conducting detailed investigation, charge sheet came

to be filed against petitioners and others. Prima-facie there

is material to connect the petitioners to the crime in

question. She would further submit that it is for the

prosecution to prove the allegations against the petitioners

and others at the trial and at this stage, in a writ petition

under Article 226 and 227 of the Constitution of India read

(2009) 1 SCC 706

(2009) 8 SCC 751

with section 482 of Cr.P.C., disputed question of facts

cannot be decided and prays to dismiss the petition.

6. In support of her arguments, learned HCGP has

relied upon the following decision:

i) State of Karnataka by Circle Inspector of

Police Vs. Hosakeri Ningappa and another3

(Hosakeri Ningappa's case).

7. Heard arguments and perused the records.

8. Undisputedly, there is a civil litigation pending

between the parties in O.S.No.427/2008 with regard to

land in Sy.No.359/15/01. In respect of the incident dated

15.01.2015, based on the complaint filed by Smt. Kamala

Vinod Sutar, Crime No.11/2015 came to be registered

against Mohammed Hussain Rohile and others and charge

sheet is filed in C.C.No.649/2015. In respect of the same

incident, Crime No.12/2015 is registered against Vinod

Chintamani Sutar and others including the petitioners,

after investigation, it also ended up in filing charge sheet

ILR 2012 KAR 509

in C.C.650/2015 and both cases are pending before

Additional Civil Judge and JMFC, Raibag.

9. The main contention of petitioners is that they

are married daughters and staying in their matrimonial

houses and on the date of incident they were not at all

present at the place of occurrence. Admittedly, petitioners

are the daughters of Vinod Sutar. Whether at the time of

incident they were present at the place of occurrence or

not is a matter to be decided at trial. Similarly, out of

these two cases, which is the genuine complaint and which

is the one filed as a counterblast is also a matter to be

thrashed out at trial. In the light of charge sheet filed

against the petitioners, at this stage, there is prima-facie

material to proceed against them.

10. So far as the decisions relied upon by the

petitioners i.e., Mahindra's case and Mohammed

Ibrahim's case referred to supra, on facts the Hon'ble

Supreme Court held that the criminal complaints were

result of civil dispute between the parties and continuation

of the same amounts to abuse of process of the Court.

However, in the present case, there is sufficient material

to proceed against the petitioners and others and as such,

these decisions are not applicable to the case on hand.

11. The learned counsel for the petitioners also

submitted that since the complaints in question are in

respect of the same incident i.e., they are case and

counter case and therefore, they ought to have

investigated by one and the same investigating officer.

However, in the present case, they are investigated by two

different investigating officers and as such the proceedings

are vitiated.

12. In this regard, it is relevant to refer to

Hosakeri Ningappa's case relied upon by the learned

HCGP, wherein based on the decision of the Hon'ble

Supreme Court in Nathilal Vs. State of Uttar Pradesh4,

the Full Bench of this Hon'ble Court while discussing the

procedure to be adopted in the investigation and trial of

case and counter case, issued the following guidelines:

1990 SCC (Cri) 638

i) Investigation should be conducted by the same investigating officer.

ii) Prosecution should be conducted by two different public prosecutors.

iii) The trial should be conducted by the same Court.

iv) After recording evidence and after hearing arguments, the judgment should be reserved in one case and thereafter evidence should be recorded and arguments should be heard in the other case.

v) Needless to state that arguments in both matters should be heard by the same learned judge.

vi) The judgment should be pronounced by the same judge simultaneously i.e. one after the other.

vii) The Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into.

viii) The judge shall not be influenced by the evidence or arguments in the cross case.

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ix) However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.

13. In Hosakeri Ningappa's case, the facts are

that the case and counter case were not tried

simultaneously and the judgments were not pronounced

one after the other. However, the Hon'ble Division Bench

held that by not following the guidelines the proceedings

are not vitiated and on facts, it is for the Court to decide

whether any prejudice is caused to the accused in not

following the said procedure.

14. In the present case, the investigation is not

conducted by the same investigating officer but by two

different investigating officers. However, the case and

counter case are pending before the same court. The rest