Karnataka High Court
Mallikarjun vs The State Of Karnataka And Anr on 28 February, 2024
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CRL.P No. 201678 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.201678 OF 2023 (482)
BETWEEN:
MALLIKARJUN S/O BASSANNA,
AGE: 47 YEARS, OCC: ADVOCATE,
REG. NO.KAR/1349/2005,
R/O H.NO. #603, J2A, JUDICIAL BLOCK,
NGV KORAMANGALA,
BENGALURU-560 047.
...PETITIONER
(BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
AND:
Digitally signed
by 1. THE STATE OF KARNATAKA,
LUCYGRACE THROUGH SIRWAR POLICE STATION,
Location: HIGH DIST. RAICHUR-584 129
COURT OF
KARNATAKA (RPTD. BY ASPP HC KLB-585 103).
2. ASSISTANT ENGINEER,
SECTION OFFICER,
DISTRIBUTARY CANAL 95 AND 96,
O/O ASST. EXECUTIVE ENGINEER,
KA.NEE.NI.NI. NO.1 CANAL,
SUB-DIVISION, KALLOOR,
DIST. RAICHUR.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
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CRL.P No. 201678 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO ALLOW THE CRIMINAL PETITION AND
QUASH THE FIR IN CRIME NO.30/2023 OF SIRWAR POLICE
STATION, DIST. RAICHUR, FOR THE OFFENCES PUNISHABLE
U/SEC. 55 OF KARNATAKA IRRIGATION ACT AND THE
C.C.NO.441/2023 PENDING ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC COURT, MANVI.
THIS PETITION COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who happens to be accused No.3 in
Crime No.30/2023 of Sirwar Police Station is before this
Court, challenging the FIR registered against him.
2. The factual background of the case is as below:
The Sirwar Police registered a case on the basis of a
complaint dated 11.03.2023 filed by the Assistant
Engineer, Section Officer, Distributory Canal 95 and 96 of
KNNL, Sub-Division, Kalloor, wherein it was stated that on
09.03.2023 at 5.45 p.m. and 6.04 p.m., she was under
the inspection of Canal Nos.95 and 96 along with
G.H. Sundar Babu, Ramesh, Venkatesh and Mallayya. It
was stated that, during the inspection, in canal Nos.95 and
96, pump sets were installed illegally to draw the water
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from the canal and when the pump sets were asked to be
removed, there was resistance by three persons i.e.,
Sharanamma, Yallamma and the petitioner herein. It was
stated that, the petitioner herein was in Sy.No.203/1 of
Atnoor and was drawing water from Canal No.96. It was
prayed that suitable action be taken against the offenders.
The said complaint was registered by the Sirwar Police on
11.03.2023 at 1.45 p.m. for the offence punishable under
Section 55 of the Karnataka Irrigation Act, 1965. The
complaint was accompanied by two photographs.
3. Being aggrieved by the said registration of the
case, the petitioner is before this Court contending that
since 2005, he is residing at Bengaluru and there is no
prima facie material available on record to show that the
petitioner owns a land anywhere in the surrounding
Distributory Canal Nos.95 and 96. It is contended that,
there is no whisper in the entire contents of the FIR as
well as the charge sheet that land Sy.No.203/1 is in
possession and enjoyment of the petitioner as owner
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thereof or in any capacity. It is contended that, the
petitioner has been falsely implicated in the matter and
there is no reference about the physical presence of the
petitioner at the spot while the complainant visited the
spot. Further, it is contended that, there was delay in filing
the compliant and therefore, the FIR deserves to be
quashed.
4. On issuance of notice, learned High Court
Government Pleader has appeared for the respondent-
State.
5. Heard the learned counsel for the petitioner and
the learned High Court Government Pleader for the
respondent-State.
6. A perusal of the complaint shows that, there is
no mention that the petitioner herein and two other
accused were present at the spot. It was stated that the
petitioner and two other accused were found to have
installed the pump sets illegally and were drawing the
water and had shown their resistance when they were
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asked to remove the pump sets. However, it is relevant to
note that, their presence at the spot was not categorically
mentioned in the complaint.
7. Leaned counsel appearing for the petitioner has
drawn the attention of this Court to the fact that after
registration of the case, the Investigating Officer has filed
the charge sheet and the charge sheet also do not
mention anything other than what was stated in the
complaint. He submits that, the spot mahazar which was
conducted by the Investigating Officer also do not mention
about the presence of any of the persons at the spot, the
description of the pump set, either it is electrical or fossil
fuel based pump set or any other such thing. There is no
recovery of the pump set, from the spot and there are no
other independent witnesses apart from the employees of
the complainant, who had stated about the petitioner
having installed pump set to the canal. If at all there was
any pump set, it could have been seized by the authorities
and the Gangmen who were maintaining the canal.
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Therefore, he submits that, apart from the contentions
taken up in the petition, there is no reason for registration
of a case against the petitioner and even if on the face
value of the petition, it is considered, the offence is not
made out by the prosecution.
8. Per contra, learned High Court Government
Pleader appearing for the respondents submits that, the
Investigating Officer has visited the spot and conducted
the mahazar and as per the mahazar and the available
material on record, there is a clear indication that the
accused/petitioner was drawing water from the canal and
therefore, the petition is devoid of any merits.
9. It is pertinent to note that, the Hon'ble Apex
Court in the case of Neeharika Infrastructure Private
Limited vs. State of Maharashtra and Others reported
in (2021) 19 SCC 401, laid down the guidelines, under
which challenge to the FIR under Section 482 of Cr.P.C.
has to be dealt with. In para 13 of the judgment, the Apex
Court has culled out the principles of law governing the
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subject after scanning through nearly 49 judgments
spanning from Privy Council to the Apex Court and High
Courts. Para 13 of the said judgment is extracted as
below:
"13. From the aforesaid decisions of this
Court, right from the decision of the Privy Council in
Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29, the
following principles of law emerge:
13.1. Police has the statutory right and duty
under the relevant provisions of the Code of
Criminal Procedure contained in Chapter XIV of the
Code to investigate into cognizable offences.
13.2. Courts would not thwart any
investigation into the cognizable offences.
13.3. However, in cases where no cognizable
offence or offence of any kind is disclosed in the
first information report the Court will not permit an
investigation to go on.
13.4. The power of quashing should be
exercised sparingly with circumspection, in the
"rarest of rare cases". (The rarest of rare cases
standard in its application for quashing under
Section 482 CrPC is not to be confused with the
norm which has been formulated in the context of
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the death penalty, as explained previously by this
Court.)
13.5. While examining an FIR/complaint,
quashing of which is sought, the Court cannot
embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in
the FIR/complaint.
13.6. Criminal proceedings ought not to be
scuttled at the initial stage.
13.7. Quashing of a complaint/FIR should be
an exception and a rarity than an ordinary rule.
13.8. Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since the two
organs of the State operate in two specific spheres
of activities. The inherent power of the court is,
however, recognised to secure the ends of justice
or prevent the above of the process by Section 482
CrPC.
13.9. The functions of the judiciary and the
police are complementary, not overlapping.
13.10. Save in exceptional cases where non-
interference would result in miscarriage of justice,
the Court and the judicial process should not
interfere at the stage of investigation of offences.
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13.11. Extraordinary and inherent powers of
the Court do not confer an arbitrary jurisdiction on
the Court to act according to its whims or caprice.
13.12. The first information report is not an
encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature
to pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process
of law. During or after investigation, if the
investigating officer finds that there is no substance
in the application made by the complainant, the
investigating officer may file an appropriate report/
summary before the learned Magistrate which may
be considered by the learned Magistrate in
accordance with the known procedure.
13.13. The power under Section 482 CrPC is
very wide, but conferment of wide power requires
the Court to be cautious. It casts an onerous and
more diligent duty on the Court.
13.14. However, at the same time, the Court,
if it thinks fit, regard being had to the parameters
of quashing and the self-restraint imposed by law,
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more particularly the parameters laid down by this
Court in R.P. Kapur v. State of Punjab, 1960 SCC
OnLine SC 21 and State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335, has the jurisdiction to
quash the FIR/complaint.
13.15. When a prayer for quashing the FIR is
made by the alleged accused, the Court when it
exercises the power under Section 482 CrPC, only
has to consider whether or not the allegations in
the FIR disclose the commission of a cognizable
offence and is not required to consider on merits
whether the allegations make out a cognizable
offence or not and the court has to permit the
investigating agency/police to investigate the
allegations in the FIR."
10. Thus, it is evident that, the power under
Section 482 of Cr.P.C. has to be exercised cautiously and
only in exceptional circumstances. It is also laid down that
the power should be exercised in rarest of the rare
matters, but not routinely. It is in the light of these
guidelines, the present case needs to be considered by
this Court.
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11. A perusal of the FIR as noted supra would show
that, it do not categorically mention that the petitioner
herein was present physically at the spot. It is simply
mentioned that the petitioner and two others were
drawing water illegally by installing the pump sets. The
nature of the pump sets and other particulars are not
available. It is also mentioned that when the pump sets
were asked to be removed, they had shown resistance. If
at all there was a resistance, there was no reason for the
complainant to wait for two days till 11.03.2023 to file the
complaint. Moreover, after the investigation, the
Investigating Officer has not verified as to whether the
petitioner herein was having any land adjoining the
Distributory Canal No.96. The revenue records of the land
of the petitioner and the fact that the said land was
adjoining Canal No.96 is not available in the charge sheet.
12. It is also pertinent to note that, the
Investigating Officer has not seized any pump set from the
spot. If at all the pump sets were not found or any signs of
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the installation of the pump sets were not found at the
spot, it is difficult to comprehend as to how the
Investigating Officer came to the conclusion that the pump
sets were installed, so also, the pipelines etc., or any such
indication that the pipelines were laid is also not
forthcoming from the spot mahazar.
13. The statements of the witnesses show that it is
nothing but an verbatim reproduction of the contentions in
the complaint. The Gangmen, who were responsible for
the maintenance of the canal have not stated anything
that as to when the pump sets were installed. They do not
state as to when the petitioner and other accused were
asked to remove the pump sets. What is relied by the
prosecution is a GPS based photographs. For none of these
photographs, a certificate as required under Section 65B
of the Indian Evidence Act is not forthcoming. Moreover,
it is not the case of the prosecution that, the petitioner
and other two accused were also found in the said
photographs. On the contrary, it is only the complainant
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and her staff who are seen in the said photographs.
Therefore, when the petitioner contends that he is not
having any land near Canal No.96 and that he is a resident
of Bengaluru, it is evident that the petitioner has been
implicated in the case without any basis. Therefore, the
continuation of the case against the petitioner would be
nothing but travesty of justice. Under these
circumstances, this Court feels that this is a case wherein
power available to this Court under Section 482 of Cr.P.C.
deserves to be exercised. Hence, the petition deserves to
be allowed.
14. In the result, I pass the following:
ORDER
i. Criminal petition is allowed.
ii. The FIR in Crime No.30/2023 of Sirwar Police
Station, Dist. Raichur for the offence punishable
under Section 55 of the Karnataka Irrigation Act
and the charge sheet in C.C. No.441/2023
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pending on the file of Senior Civil Judge and
JMFC Court, Manvi as against the petitioner
stand quashed.
Sd/-
JUDGE
LG
