Basavaraj Magi vs State By Halasooru Gate Police ...
2023 Latest Caselaw 8 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 02ND DAY OF JANUARY, 2023

                            BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.5635 OF 2022

                               C/W

            CRIMINAL PETITION No.10203 OF 2021

IN CRIMINAL PETITION No.5635 OF 2022

BETWEEN:

1 . SMT.SUNITHA
    AGED ABOUT 49 YEARS
    D/O LATE SRI G.BASAVARAJ
    W/O DINESH K.S.,

2 . MR. DINESH K.S.,
    AGED ABOUT 52 YEARS
    S/O K.M.SIDDALINGAPPA

   BOTH ARE R/AT NO.323
   SHIVA KRUPA, 15TH CROSS
   SADASHIVANAGAR
   BENGALURU - 560 080.
                                            ... PETITIONERS
(BY SRI CHETHAN B., ADVOCATE)

AND:

1 . STATE OF KARNATAKA
    HALSOORGATE POLICE STATION
                            2




   BENGALURU - 560 003

   REPRESENTED BY SPP
   HIGH COURT OF KARNATAKA
   BENGALURU - 560 003.

2 . SRI G.PARAMASHIVAIAH
    AGED ABOUT 79 YEARS
    S/O LATE GANGAPPA
    NO.7, 1ST MAIN ROAD
    KEMPANNA LAYOUT
    PALACE GUTTAHALLI
    BENGALURU - 560 080.

                                           ... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI HARISH B.N., SR.ADVOCATE FOR
    SMT.POORNIMA HATTI, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER TAKING COGNIZANCE
DATED      01.09.2021   PASSED     IN    C.C.NO.22477/2021
(CR.NO.126/2021) BY THE I ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU FOR THE ALLEGED OFFENCE P/U/S 420
R/W 34 OF IPC AND CONSEQUENTIALLY QUASH THE CHARGE
SHEET IN THE ABOVE CR.NO.126/2021 REGISTERED BY THE
RESPONDENT POLICE.

IN CRIMINAL PETITION No.10203 OF 2021

BETWEEN:

BASAVARAJ MAGI
S/O SHIVASHARANAPPA
AGED ABOUT 35 YEARS
ASST. REVENUE OFFICER
R/AT NO.002
MOTI APARTMENT
                            3



OPP. TO PWD MINISTER RESIDENCY
WEST PARK ROAD
KUMARA PARK EAST
BENGALURU - 560 001.
                                           ... PETITIONER
(BY SRI RAVINDRANATH KAMATH, SR.ADVOCATE FOR
    SRI H.G.DAWOOD KHAN, ADVOCATE)

AND:

1 . STATE BY HALASOORU GATE
    POLICE STATION, BENGALURU
    REPRESENTED BY ITS
    PUBLIC PROSECUTOR
    HIGH COURT BUILDING
    DR. B.R.AMBEDKAR VEEDHI
    BENGALURU - 560 001.

2 . G.PARAMASHIVAIAH
    S/O LATE GANGAPPA
    AGED ABOUT 79 YEARS
    NO.7, 1ST MAIN ROAD
    KEMPANNA LAYOUT
    P.G.HALLI
    BENGALURU - 560 020.
                                          ... RESPONDENTS

(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    R2 - SERVED)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY THE
RESPONDENT POLICE RELATING TO THE CR.NO.126/2021, IN
C.C.NO.22477/2021, ENTIRE ALLEGATIONS MADE AGAINST THIS
PETITIONER / ACCUSED NO.3, WHICH IS PENDING BEFORE THE I
A.C.M.M AT BENGALURU VIDE DOCUMENT NO.3, FOR THE ALLEGED
OFFENCE P/U/S 420 R/W 34 OF IPC, AGAINST THIS PETITIONER /
                                 4



ACCUSED NO.3 AND ALL FURTHER PROCEEDINGS PURSUANT
THERETO MAY BE PLEASED TO QUASH AND ETC.,

     THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.10.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
                               ORDER

The petitioners/accused Nos.1 and 2 in Crl.P.No.5635 of 2022

are before this Court calling in question order dated 01-09-2021

passed in C.C.No.22477 of 2021 by which the I Additional Chief

Metropolitan Magistrate, Bengaluru takes cognizance of the offence

against the petitioners for offences punishable under Section 420

read with Section 34 of the IPC arising out of Crime No.126 of

2021.

2. The petitioner/accused No.3 in Crl.P.No.10203 of 2021 is

before this Court calling in question the very proceedings in

C.C.No.22477 of 2021 arising out of Crime No.126 of 2021. Since

both the petitions call in question the proceedings in a solitary

criminal case and arising out of very same crime as noticed supra,

they are taken up together and considered by this common order.

3. Heard Sri Chethan.B., learned counsel appearing for the

petitioners in Crl.P.No.5635 of 2022; Sri Ravindranath Kamath,

learned senior counsel for the petitioner in Crl.P.No.10203 of 2021;

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

appearing for respondent No.1 and Sri B.N.Harish, learned senior

counsel appearing for respondent No.2 in Crl.P.No.5635 of 2022.

CRIMINAL PETITON NO.5635 of 2022:

4. Brief facts that lead the petitioners to this court in this

petition, as projected by the prosecution, are as follows:

The 1st petitioner is the daughter of one late G.Basavaraj and

the 2nd petitioner is the son-in-law of late G.Basavaraj and husband

of the 1st petitioner. Late G.Basavaraj was at the relevant point in

time working as Chief Engineer in the Public Works Department of

Government of Karnataka. During his life time, he had purchased

land bearing Sy.No.48/1 measuring 3 guntas and Sy.No.125/1

measuring 22 guntas at Hebbal Village, Bengaluru North Taluk. It is

claimed to have been purchased in the name of his brother Sri

G.Paramashivaiah/complainant by registered sale deed dated

29-11-1979. Late G.Basavaraj applied for licence and approval to

the competent authorities for construction of Kalyana Mantapa

named as Sri Gangadareshwara Kalyana Mantapa in the said

property and the Administrator of the Gram Panchayat, Hebbal on

26-03-1990 issued a no objection for construction of Kalyana

Mantapa. On the said no objection, it appears that power is also

sanctioned up to 22 KV on 11-04-1990. It appears that certain

differences arose between the members of the family and the said

dispute is resolved by entering into a settlement recorded on

14-03-1996 between the brothers - late G.Basavaraj and Sri

G.Paramashivaiah and other two brothers. The subject property in

terms of the settlement was allotted to late G.Basavaraj along with

other properties bearing No. 45/1A and Sy.No.45/1E of Hebbal

Village. Pursuant to the said settlement, sale deeds were handed

over to late G.Basavaraj.

5. Before the aforesaid settlement Sri G.Paramashivaiah had

sought to stake a claim over the subject property by instituting a

civil suit in O.S.No.263 of 1995 and later miscellaneous first appeal

in M.F.A. No.327 of 1995 before this Court. After failure in those

two cases, the third round of litigation is generated by him by

registering O.S.No.2771 of 2019 wherein an application appears to

have been filed seeking injunction and the same came to be

rejected. The said suit is pending adjudication before the

concerned Court. In the interregnum G.Basavaraj passes away on

14-11-2007 and khata of the subject property was transferred in

the name of the 1st petitioner, daughter of late G.Basavaraj. It

appears, on a challenge to the said transfer of khata, this Court in

Writ Appeal Nos.3835-36 of 2010 in terms of its order dated 17-06-

2011 disposed of the writ appeal observing that khata in the name

of the 2nd respondent with regard to the subject property would be

subject to the result of the civil suits pending between the parties in

O.S.Nos.499 of 1995, 2786 of 2000, 5716 of 2001, 899 of 2009

and 1216 of 2011. It is averred in the petition that all the above

suits were dismissed and khata of the subject property was not

recorded in the name of the 1st petitioner despite the dismissal of

the suits, which drove the 1st petitioner to this Court in Writ Petition

No.23580 of 2019 seeking a direction to the Bruhat Bengaluru

Mahanagara Palike ('BBMP' for short) to consider the application for

change of khata with respect to the subject property. This Court by

an order dated 09.03.2021 directed the BBMP to consider the

application for change of khata in the name of the 1st petitioner

within four weeks. It is thereafter BBMP transferred the khata in the

name of the 1st petitioner on 06.04.2021.

6. Trouble had arisen in the interregnum. The Special Land

Acquisition Officer of the Karnataka Industrial Areas Development

Board ('KIADB' for short) sought to acquire a portion of the land in

the subject property measuring 811.81 sq. mts. notifying the name

of the 2nd respondent to be the khatedar in terms of the Notification

dated 19-08-2019. It appears that the 1st petitioner thereafter

makes a representation to the KIADB bringing to its notice that she

is the owner of the property which is sought to be acquired and

sought release of compensation in her favour. The KIADB issues an

amendment Notification on 16.06.2021 notifying the name of the

1st petitioner to be the khatedar and entitled for receipt of

compensation. The issuance of khata in favour of the 1st petitioner

was called in question before this Court in Writ Petition No.12988 of

2021 by the 2nd respondent. This Court disposed of the writ petition

holding that if there is any dispute with regard to the title or

apportionment of compensation amount, it is only the civil Court

that would decide entitlement of the parties including the dispute

between the 1st petitioner and the 2nd respondent and whatever

decision the civil Court would render would become binding on the

parties and the KIADB shall refer the dispute regarding title and

apportionment to the civil Court in terms of Sections 30 and 31 of

the Land Acquisition Act, 1894.

7. After all these proceedings or in the interregnum a

complaint comes to be registered against the petitioners herein by

the 2nd respondent alleging that the complainant is the absolute

owner of the subject property and the 1st petitioner has fraudulently

obtained khata in respect of the said property and has received

compensation from the KIADB pursuant to acquisition of portion of

the land. It was also alleged that the KIADB colluding with the 1st

petitioner had sought to release the compensation in favour of the

1st petitioner. The complaint becomes a crime in Crime No.126 of

2021 for offences punishable under Sections 406 and 420 read with

34 of the IPC. The Police, after investigation, filed a charge sheet

against the petitioners dropping Section 406 and retaining Section

420 of the IPC.

8. The petitioners called in question those proceedings in

Criminal Petition No.7653 of 2021 before this Court and later

withdrew the said petition with liberty to file a fresh petition. The

reason averred in the petition for withdrawal of the criminal petition

was that it was on the advice of the family members as it was a

dispute between the members of the family for

negotiation/compromise and in the event the talks of compromise

fail, liberty had been sought to approach this Court once again. It

is further contended that talks of compromise between the

petitioners and the 2nd respondent did not yield any result and,

therefore, the petitioners again knocked at the doors of this Court

with the present petition calling in question the proceedings in

Crime No.126 of 2021 (C.C.No.22477 of 2021).

CRIMINAL PETITION NO.10203 of 2021:

9. This petition is filed by accused No.3 in Crime No.126 of

2021 who was working as an Assistant Revenue Officer. The only

allegation against this petitioner is that he has changed the khata in

favour of accused No.1, petitioner No.1 in the companion petition

contrary to law. Except this fact all other facts that arose for filing

of the petition are the same compared to the companion petition.

10. The learned counsel appearing for accused 1 and 2 would

contend that the issue, viewed from any angle, is purely civil in

nature. There are orders passed by this Court from time to time

with regard to the right of the complainant or the accused being

pending before the civil Court. Every action that is now alleged

against the accused is subject matter of civil proceedings and,

therefore, would contend that the issue being purely civil in nature,

criminal proceedings should not be permitted to continue, as it

would become an abuse of the process of law.

11. On the other hand, the learned senior counsel

representing the complainant would seek to refute the submissions

to contend that there is forgery and fraud played by the accused in

getting the khata transferred and, therefore the transfer of

compensation to the hands of the accused is illegal. He would

further contend that fraud and forgery is put forth in the complaint

before the Police and as such, the complaint was maintainable. The

learned senior counsel would seek to lay emphasis upon the fact

that the accused had approached this Court earlier, withdrawn the

petition and by withdrawal of the petition, the second petition would

not be maintainable and any submission of the learned counsel for

the petitioners/accused could not be acceded to and the petition be

dismissed is his emphatic submission.

12. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

13. The afore-narrated facts and link in the chain of events

are not in dispute and therefore do not require any reiteration. It

would be suffice to observe that the dispute is between the

members of the family and the dispute concerns title and

apportionment of compensation amount. The genesis of the

dispute dates back to 1996. Certain properties were purchased by

the brothers - father of the 1st accused and the complainant. After

the purchase of properties in the year 1990 a settlement

proceeding was drawn up on 14-03-1996 between the father of the

1st accused and the 2nd respondent/complainant along with other

family members. The result of the settlement is that the subject

property fell to the hands of the father of the 1st accused. Though

there was a settlement, entries in respect of 3 guntas in Sy.No.48/1

and 22 guntas in Sy.No.125/1 at Hebbal Village, Bengaluru North

Taluk were directed to be made in favour of the 2nd

respondent/complainant in W.P.No.15264 of 2006 which was

disposed of on 20-09-2010. This was called in question by the

father of accused No.1 in Writ Appeal Nos.3835-3836 of 2010. The

Division Bench disposed of the appeal on 17-06-2011 modifying the

order of the learned single Judge to the extent that the 4th

respondent therein shall not create any encumbrance and even if

there is change of khata and other permission like water and

electricity connections, they would all be subject to the result of the

civil suit pending before the civil Court. The Division Bench holds as

follows:

".... .... ....

2. As could be ascertained from the submission of the counsel for appellant as well as the respondents, as on the date of disposal of the Writ Petition before the learned Single Judge, there were four suits pending in O.S.No.499/1995, 2786/2000, 5716/2001 and 899/2009. Taking into consideration the pendency of these suits, the learned Single Judge cautioned the Civil Court not to be influenced by any of the observations

made in his order including the katha being in the name of the petitioner - Writ Petitioner. Subsequent to the disposal of the Writ Petition. O.S.No.1216/2011 is filed for partition and separate possession of the properties including the above said two properties. Allegations of sale of the properties, against each other are made. However, separate possession and adjustment of share is the Jurisdiction of the Civil Court, provided the plaintiff is able to establish that the properties belong to the joint family and the plaintiff has a share in the said properties. Apparently the katha of the above said two properties is changed to the name of the fourth respondent, Paramashivaiah. For this the appellant has no serious grievance, but all that the appellant is apprehensive is the creation of encumbrance of the property during the pendency of the civil suits and also making use of the katha in the name of the fourth respondent, Paramashivaiah for obtaining the permission or connection like electricity and water before the concerned authorities as the same are already in the name of the appellant herein.

3. In view of the above reasoning, we would only conclude modifying the learned Single Judge's order to the extent that the fourth respondent shall not create any encumbrance and even if there is change of katha and other permission like water and electricity connections, they would all be subject to the result of the civil suits, pending before the Civil Court."

The Division Bench also notices that there were five civil suits

pending between the parties. The averment in the petition is that all

the civil suits ended against the complainant.

14. In the year 2019 the KIADB sought to acquire portion of

the land measuring 811.81 sq.mts. in the subject property. While

so issuing the notification for such acquisition, the name of the 2nd

respondent was shown to be the khatedar of the property.

Immediately, thereafter a representation was given by the 1st

accused bringing to the notice of the Board several proceedings

before the civil Court and that of this Court and sought modification

of the notification with regard to acquisition of the property by

showing her to be the khatedar of the property. Accordingly, the

Board acceded to the request and issued a modified notification on

31-05-2021. This act of the Board was called in question before this

Court by the complainant in Writ Petition No.12988 of 2021. This

Court disposed of the writ petition by its order dated 20-09-2021 by

the following order:

".... .... ....

2. This allegation on the part of the petitioner cannot be contravened at the hands of the respondents, since it is a matter of record that after the amendment notification was issued, the name of the petitioner was deleted and the names of respondent Nos. 7 to 9 were included in the notification and thereafter, the compensation amount has been disbursed to the contesting respondents. It is now settled that whenever there is a dispute raised in respect of the title or apportionment of the compensation amount, it is only the Civil Court that can decide the issue.

3. However, it is given to understand that at the instance of the petitioner, the account where the amount was deposited by respondent No.7-Bank have been freezed and it has been noted by the Bank Authorities that there is a dispute in this regard.

4. On hearing the learned counsels and on perusing the petition papers, this Court is of the considered opinion that whatever amount is available at present in the account has to be de-freezed and deposited before the Civil Court. Further, the Civil Court is directed to deposit the available amount in any nationalized Bank which would earn interest and would benefit any of the parties who would succeed before the Civil Court.

5. Therefore, the petition stands disposed of with a direction to the respondent-KIADB and the Bank where the account of respondent No.7 has been freezed at the instance of the police that the entire amount shall be de-freezed and the compensation amount, whatever is available shall be released to the SLAO, KIADB and the SLAO shall deposit the amount before the Civil Court. The Civil Court shall decide the entitlement of the petitioner and respondent Nos.7 to 9. The parties shall be bound by the decision of the Civil Court. The respondent-KIADB shall immediately refer the dispute regarding the title and apportionment to the Civil Court in terms of Section 30 and 31 of the Land Acquisition Act, 1894. Respondent Nos.7 to 9 shall also give an undertaking before the Civil Court that whatever amount was paid to them under Section 29(2) of the Act, shall be re-deposited before the Civil Court, if the petitioner herein succeeds.

6. Needless to observe that the compensation is agreed to by the consent of respondent Nos.7 to 9 under Section 29(2) of the KIAD Act, 1966. Therefore, both the parties i.e., petitioner and respondent Nos.7 to 9 shall be bound by the agreement and whichever party succeeds before the Civil Court they are entitled to receive the compensation as per the agreement entered under Section 29(2) of the Act. In other words, the succeeding party shall not claim for further enhancement of compensation.

All contentions are kept open.

Ordered accordingly."

(Emphasis supplied)

Later, it appears there were rival claimants who sought to implead

themselves by moving the matter for being spoken to. This Court

on 31-01-2022 passed the following order:

"This writ petition was disposed of by order dated 20.09.2021. There were rival claimants to the compensation and therefore, this Court directed the parties to appear before the reference Court, since the reference Court was empowered under Sections 30 and 31 of the Land Acquisition Act, 1894 to consider the rival claimants for apportionment of compensation.

However, learned Senior counsel Sri.C.H.Jadav, appearing for impleading applicants in I.A.No.1/2021 submits that even as on the date when the writ petition was disposed of, I.A.No.1/2021 was pending consideration before this Court. Learned Senior counsel submits that the impleading applicants also claim to have a right in the property that was notified and therefore, these applicants should also be permitted to appear before the reference Court.

If this Court had noticed that I.A.No.1/2021 was pending consideration before this Court, this Court would have permitted the impleading the applicants to come on record and would have permitted the applicants also to appear before the reference Court.

Nevertheless, in the light of the discussions made herein above, I.A.No.1/2021 is formally allowed. The impleading applicants Smt.Chadramma, Smt.Umadevi, Smt.Rudramma and Smt.Vanajakshi who claim to be the sisters of the petitioner are also permitted to appear before the reference Court and the reference Court shall consider the claim of the impleading applicants along with the petitioner and respondent Nos.7 to 9.

Learned counsel for respondent No.2 and 3-KIADB submits that in terms of the directions issued by this Court, the award amount has been deposited before the reference Court. The parties including the impleading applicants are directed to appear before the reference Court on 14.02.2022. The reference Court is directed to take up the matter on 14.02.2022 and thereafter, make endeavour to conclude the proceedings as expeditiously as possible and at any rate within a period of four months from 14.02.2022.

Ordered accordingly."

(Emphasis supplied)

During the pendency of these proceedings, the complainant having

knocked the civil Court in civil proceedings, which accused Nos.1

and 2 claim that the complainant has lost all the civil proceedings,

the complainant seeks to register a crime on 08.07.2021. The

allegation is fraudulent transfer of khata and fraudulent

representation before the KIADB seeking compensation by accused

Nos. 1 and 2.

15. According to the complaint, the land belonged to the

complainant and there was forgery and fraud in changing the

revenue records and the khata made in favour of the accused.

Though on the very look of it, the case had a civil flavour, the Police

sought to register a crime in Crime No.126 of 2021 and

immediately thereafter also filed a charge sheet dropping Section

406 of the IPC from the array of charges and retaining Section 420

of the IPC. Once the charge sheet was filed and cognizance was

taken by the learned Magistrate, the petitioners/accused Nos. 1 and

2 approached this Court in Criminal Petition No.7653 of 2021. The

criminal petition comes to be dismissed as withdrawn with liberty as

prayed for. It is exercising such liberty, the 2nd petition is preferred.

16. The contention of the learned senior counsel for the

complainant that the second petition is not maintainable is without

any substance. At the outset, liberty was reserved while

withdrawing the earlier petition and the liberty is explained in the

petition. Even otherwise, the issue whether a second petition for

which liberty was reserved would become maintainable or otherwise

is no longer res integra as the Apex Court in the case of

SUPERINTENDENT AND REMEMBERANCER OF LEGAL

AFFAIRS, WEST BENGAL v. MOHAN SINGH AND OTHERS1 has

held as follows:

"2. The main question debated before us was whether the High Court had jurisdiction to make the order

(1975) 3 SCC 706

dated April 7, 1970 quashing the proceeding against Respondents 1, 2 and 3 when on an earlier application made by the first respondent, the High Court had by its order dated December 12, 1968 refused to quash the proceeding. Mr Chatterjee on behalf of the State strenuously contended that the High Court was not competent to entertain the subsequent application of Respondents 1 and 2 and make the order dated April 7, 1970 quashing the proceeding, because that was tantamount to a review of its earlier order by the High Court, which was outside the jurisdiction of the High Court to do. He relied on two decisions of the Punjab and Orissa High Courts in support of his contention, namely, Hoshiar Singh v. State [AIR 1958 Punj 312 : 60 Punj LR 438 : 1958 Cri LJ 1093] and Namdeo Sindhi v. State [AIR 1958 Ori 20 : 1958 Cri LJ 67 : ILR 57 Cut 355] . But we fail to see how these decisions can be of any help to him in his contention. They deal with a situation where an attempt was made to persuade the High Court in exercise of its revisional jurisdiction to reopen an earlier order passed by it in appeal or in revision finally disposing of a criminal proceeding and it was held that the High Court had no jurisdiction to revise its earlier order, because the power of revision could be exercised only against an order of a subordinate court. Mr Chatterjee also relied on a decision of this Court in U.J.S. Chopra v. State of Bombay [AIR 1955 SC 633 : (1955) 2 SCR 94 : 1955 Cri LJ 1410] where N.H. Bhagwati, J., speaking on behalf of himself and Imam, J., observed that once a judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction over the same. These observations were sought to be explained by Mr Mukherjee on behalf of the first respondent by saying that they should not be read as laying down any general proposition excluding the applicability of Section 561-A in respect of an order made by the High Court in exercise of its appellate or revisional jurisdiction even if the conditions attracting the applicability of that section were satisfied in respect of such order, because that was not

the question before the Court in that case and the Court was not concerned to inquire whether the High Court can in exercise of its inherent power under Section 5 61 A review an earlier order made by it in exercise of its appellate or revisional jurisdiction. The question as to the scope and ambit of the inherent power of the High Court under Section 561-A vis-a-vis an earlier order made by it was, therefore, not concluded by this decision and the matter was res integra so far as this Court is concerned.

Mr Mukherjee cited in support of this contention three decisions, namely, Raj Narain v. State [AIR 1959 All 315 : 1959 Cri LJ 543 : 1959 All LJ 56] , Lal Singh v. State [AIR 1970 Punj 32 : 1970 Cri LJ 267 : ILR (1970) 1 Punj 177] and Ramvallabh Jha v. State of Bihar [AIR 1962 Pat 417 : (1962) 2 Cri LJ 625 : 1962 BLJR 553] . It is, however, not necessary for us to examine the true effect of these observations as they have no application because the present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding. Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561-A of the Code of Criminal Procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that Respondents 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation

prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of Respondents 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of Respondents 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561-A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against Respondents 1 and 2."

(Emphasis supplied)

Later, the Apex Court following the judgment in MOHAN SINGH

(supra) in the case of ANIL KHADKIWALA v. STATE

(GOVERNMENT OF NCT OF DELHI) AND ANOTHER2 has held as

follows:

(2019) 17 SCC 294

"8. In Mohan Singh [Supt. and Remembrancer of Legal Affairs v. Mohan Singh, (1975) 3 SCC 706 : 1975 SCC (Cri) 156 : AIR 1975 SC 1002] , it was held that a successive application under Section 482 CrPC under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing : (SCC pp. 709-10, para 2)

"2. ... Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561-A of the Criminal Procedure Code to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one-and- a-half years without any progress at all and it was in these circumstances that Respondents 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of Respondents 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the

earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one-and-a-half years."

9. In Harshendra Kumar D. v. Rebatilata Koley [Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 : (2011) 1 SCC (Civ) 717 : (2011) 1 SCC (Cri) 1139 : 2011 Cri LJ 1626] , this Court held : (SCC p. 362, paras 26-27)

"26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.

27. As noticed above, the appellant resigned from the post of Director on 2-3-2004. The dishonoured cheques were issued by the Company on 30-4-2004 i.e. much after the appellant had resigned from the post of Director of the Company. The acceptance of the appellant's resignation is duly reflected in the Resolution dated 2-3-2004. Then in the prescribed form (Form 32), the Company informed to the Registrar of Companies on 4-3-2004 about the appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court."

10.Atul Shukla [Atul Shukla v. State of M.P., (2019) 17 SCC 299] is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order [Surendra Singh v. State of M.P., 2018 SCC OnLine MP 1425] of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362 CrPC the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts.

11. The Company, of which the appellant was a Director, is a party-respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application."

(Emphasis supplied)

Later, a three Judge Bench of the Apex Court in a judgment

rendered in the case of VINOD KUMAR, IAS v. UNION OF

INDIA AND OTHERS3 again follows the judgment rendered in the

case of MOHAN SINGH and holds that a second petition under

Section 482 of the Cr.P.C. would be maintainable save in

exceptional and changed circumstances. The Apex Court in the said

judgment holds as follows:

"This petition filed under Article 32 of the Constitution seeks quashing of criminal complaints/FIRs mentioned in Annexure-P3. Annexure-P3 in turn refers to 28 cases filed or initiated against the petitioner including cases listed at Sl.Nos.12 and 24 where conviction was

Writ Petition (Criminal) No.255 of 2021 disposed on 29-06-2021

recorded against the petitioner on 24-09-2018 and 10.08.2018 respectively.

In the facts and circumstances of the case, we see no reason to entertain this petition under Article 32. The petitioner, if so advised, can always file appropriate applications under the Code of Criminal Procedure ('The Code', for short) seeking quashing of the individual criminal cases or complaints.

At this stage, Ms. Sonia Mathur, learned Senior Advocate submits that the petitioner had approached the High Court on earlier occasions filing applications under Section 482 of the Code which were later withdrawn.

The law on point as held by this Court in "Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and others" reported in SCC (1975) 3 706 is clear that dismissal of an earlier 482 petition does not bar filing of subsequent petition under Section 482, in case the facts so justify.

Needless to say that as and when any appropriate application under the Code is preferred by the petitioner, the same shall be dealt with purely on its own merits without being influenced by the dismissal of the instant writ petition."

(Emphasis supplied) The Apex Court in the afore-quoted judgments has held that a

second petition would be maintainable despite the first petition

being dismissed. Liberty or otherwise, if there are changed

circumstances, the 2nd petition would be maintainable. In the case

at hand liberty is seen in the order and the liberty is explained in

the petition. Therefore, the 2nd petition in the light of the law laid

down by the Apex Court as afore-quoted would be maintainable. In

a later judgment, the Apex Court in the case of ARJUN P.KAMATH

v. STATE OF KARNATAKA AND ANOTHER4 has held as follows:

"The appellant was arrayed as an accused in C.C.No.23427 of 2017 arising out of crime No.483 of 2016 registered by Koramangala Police Station for offences under Sections 376, 420, 506 IPC. The appellant filed a petition under Section 482 CrPC for quashing of the charge sheet and the entire proceedings against the appellant but the petition was filed through his father. It appears that in view of certain preliminary observations by the Court about the maintainability of the petition through an attorney, a prayer was made for permitting him to prosecute the petition individually with the name and details of the power of attorney holder to be deleted. The appellant's counsel filed the memo seeking withdrawal of the petition with liberty to file a fresh petition. That memo was taken on record and the petition was dismissed as withdrawn in terms of the order dated 22-01-2021.

The appellant thereafter filed a fresh petition but in terms of the impugned order dated 27-05-2021 that petition was rejected on the ground that no liberty was prayed for filing a fresh petition while withdrawing the earlier petition.

It is in view of the aforesaid circumstances that the appellant has assailed the earlier order in S.L.P. (Crl.) Nos. 8715-8716 of 2021 and the subsequent order in S.L.P. (Crl.) No.8676 of 2021.

On hearing learned counsel for the appellant, we are of the view that the intent of the appellant was quite clear while withdrawing the earlier petition as is apparent from the memo filed by the appellant that in view of the difficulty expressed in maintaining a petition through the father on the criminal side, the appellant wanted to file a fresh petition to get over that difficulty that is why the earlier petition was withdrawn.

Criminal Appeal No.1431 of 2021 decided on 22nd November, 2021

We are thus of the view that the petition filed by the appellant as Writ Petition No.4493 of 2021 is liable to be entertained on merits and accordingly the impugned order passed on 27-05-2021 in the writ petition is set aside and the matter is remitted to the High Court for consideration in accordance with law on the merits of the case."

(Emphasis supplied) Therefore, the second petition i.e., the subject petition is

maintainable for consideration on its merits and the merit of it, as

explained hereinabove, is purely a civil case being given a cloak of

crime. The offence alleged against accused 1 and 2 initially was for

the offences punishable under Sections 406 and 420 of the IPC.

What remains after filing of the charge sheet is Section 420 of the

IPC. For an offence under Section 420 of the IPC, the ingredients of

Section 415 of the IPC are to be necessarily present. Section 415

mandates that there should be dishonest intention on the part of

the accused in luring the complainant to part with some property.

17. The transaction, in the case at hand, is not between the

petitioners and the complainant. It was between the father of the

1st accused and the complainant who are brothers. It is not one but

5 civil proceedings that were pending between the parties. Several

writ petitions are also filed with regard to the right of the accused

or the right of the father of the 1st accused and the complainant

over the properties. This Court, in the afore-quoted orders, directed

that the issue with regard to the title and compensation should be

thrashed out only by a civil Court. If the present case cannot be

construed to be a civil case dressed with the colour of crime, I fail

to understand as to what other case can be so treated. In a purely

civil matter and a dispute between the members of the family for

which the civil Court had been knocked at on several occasions and

certain proceedings are still pending before the civil Court between

the parties, if these proceedings are permitted to continue, it would

on the face of it become an abuse of the process of law.

18. The Apex Court, in plethora of judgments, has considered

the issue and directed obliteration of proceedings against those

accused who are facing proceedings which are purely civil in nature.

Quotation of those judgments would only lead to the bulk of the

present order. Since it is by now, a too well settled principle of law,

that criminal proceedings which are a cloak to the civil proceedings

should not be permitted to be continued, Crl.P.No.5635 of 2022

deserves to succeed resulting in obliteration of proceedings in

C.C.No.22477 of 2021 qua the petitioners/accused 1 and 2.

19. The companion Crl.P.No.10203 of 2021 is filed by the

Assistant Revenue Officer who is alleged to have changed the khata

in favour of accused No.1/petitioner No.1 in the companion petition.

The complainant is the same in both the petitions with the same

allegations. The charge sheet that is filed by the Police is the same

and the offence alleged in the charge sheet is also the same. What

barred the Court from taking cognizance of the offence was that the

petitioner in this petition is a Government servant. The concerned

Court could not have taken cognizance of the offence, without at

the outset, order of sanction for such prosecution being placed

before the concerned Court, as the petitioner has only acted in

terms of the order passed by this Court which directed

consideration of the case of accused 1 and 2 for change of khata

within 4 weeks from the date of receipt of a copy of the order. For

having done so, the complainant now seeks to register a crime

against the petitioner. The Apex Court in the case of INDRA DEVI

v. STATE OF RAJASTHAN AND ANOTHER5 has held as follows:

"5. The trial court dismissed the application vide order dated 10-8-2017, while noticing that Respondent 2 had not been mentioned in the FIR. It was opined that it was the duty of Respondent 2 to bring irregularities to the knowledge of the

(2021) 8 SCC 768

competent officers i.e. Megharam had mentioned the wrong khasra number in the lease but no documents of ownership of the land were produced. The trial court was of the view that had the discrepancies been brought to the knowledge of the competent officers by Respondent 2, the disputed lease would not have been issued. The result of the failure to do so caused the forged lease to be prepared. Respondent 2 had also drafted the disputed lease in which he failed to mention necessary details. It was, thus, opined that Respondent 2 was liable to be prosecuted against for having committed criminal offence to procure a forged lease. What Respondent 2 did was held not to be done by the public servant in discharge of his official duty and thus protection under Section 197 CrPC would not come to his aid.

6. Respondent 2 thereafter filed Criminal Miscellaneous Petition No. 3138 of 2017 under Section 482 CrPC before the High Court of Judicature at Jodhpur assailing the said order of the trial court. The High Court, vide impugned order dated 3-10-2017 [Yogesh Acharya v. State of Rajasthan, 2017 SCC OnLine Raj 2662] , allowed the petition. It was opined that the case was similar to the one of Devi Dan v. State of Rajasthan [Devi Dan v. State of Rajasthan, 2014 SCC OnLine Raj 4584] . The High Court had opined therein that sanction under Section 197 CrPC was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during the discharge of his duties. The complainant, aggrieved by the said judgment, has approached this Court by filing a special leave petition. The State has also filed an SLP. Leave was granted in both the matters.

7. The appellant contended before us that the involvement of Respondent 2 only came to light during investigation. He had failed to bring the irregularities to the knowledge of his superiors which was instrumental in issuing the forged lease. Thus, he had conspired with his superiors in dishonestly concealing the forgery, and intentionally omitting mentioning the date of the proceedings on the order-sheet. Such action of forging documents would not be considered as an act conducted in the course of his official duties and, thus Section 197 CrPC would not give protection to Respondent 2.

8. On the other hand, Respondent 2 endeavoured to support the impugned judgment [Yogesh Acharya v. State of Rajasthan,

2017 SCC OnLine Raj 2662] of the High Court by emphasising that in FIR only Megharam along with some unnamed officials were mentioned. Surender Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition under Section 482 CrPC relating to the same transaction and the High Court had granted him protection under Section 197 CrPC vide order dated 22-2-2018. The conduct of putting his initials was held to be an act done in discharge of his duties. Similarly, Sandeep Mathur, a Junior Engineer, who was part of the same transaction, was granted protection by the Sessions Court vide order dated 19-3-2020, once again under the same provision i.e. Section 197 CrPC. Both the orders remained unchallenged by the complainant and the State. Further, it has been argued that Respondent 2 was simply carrying out his official duty which is apparent from the work allotted to him that pertained to allotment, regularisation, conversion of agricultural land and all kinds of work relating to land and conversion. The application of Megharam was routed through the office, and the proceedings show that the file was initially put up before the Executive Officer, who directed inspection, which was carried out by the Junior Engineer. Thereafter, file was placed before the Executive Officer again and only then was it signed by the Municipal Commissioner. The two key people involved in the process have already been granted protection and thus Respondent 2 herein, who was merely a Lower Division Clerk, could not be denied similar protection.

9. The learned counsel for the respondent relied upon the judgments of this Court in B. Saha v. M.S. Kochar [B. Saha v. M.S. Kochar, (1979) 4 SCC 177: 1979 SCC (Cri) 939] and State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339: 1993 SCC (Cri) 901] to contend that Section 197 CrPC ought to be read in a liberal sense for grant of protection to the public servant with respect to actions, which though constitute an offence, are "directly and reasonably" connected with their official duties.

10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special

category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. (See Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64: (2012) 1 SCC (Cri) 1041: (2012) 2 SCC (L&S) 666].) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question, therefore, is whether the act committed is directly concerned with the official duty."

The Apex Court holds that even in cases where the allegation is of

offence punishable under Section 420 of the IPC, sanction for

prosecution against a Government servant under Section 197 of the

Cr.P.C is imperative. Without such sanction, the Court cannot take

cognizance of the offence. It is an admitted fact that there is not

even an application for sanction in the case at hand. Therefore, for

all other reasons rendered in the companion petition and the added

circumstance of there being no sanction for prosecution against the

petitioner in Crl.P.No.10203 of 2021, the subject petition also

deserves to succeed.

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

ORDER

(i) Criminal Petition No.5635 of 2022 and Criminal Petition No.10203 of 2021 are allowed and cognizance taken by the I Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.22477 of 2021 in respect of Crime No.126 of 2021 stands quashed qua all the petitioners/accused Nos.1 to 3.

(ii) It is made clear that the observations made in the course of this order would not come in the way or bind any civil or revenue proceedings pending between the parties. The observations are made only for the purpose of consideration of the case of the petitioners under Section 482 of the Cr.P.C.

Sd/-

JUDGE

bkp