Karnataka High Court
Sri Keshava Murthy vs State By Madanayakanahally on 20 February, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 168 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 168 OF 2023 (GM-RES)
BETWEEN:
SRI KESHAVA MURTHY
S/O LATE SREEPATHAIAH
AGED ABOUT 52 YEARS,
KAMMASANDRA, DASANAPURA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562 162.
...PETITIONER
(BY SRI. SARAVANA S., ADVOCATE)
AND:
1. STATE BY MADANAYAKANAHALLY
POLICE STATION,NELAMANGALA,
BENGALURU-562 123,
REP. BY HCGP,HIGH COURT OF KARNATAKA BUILDING,
BENGALURU-560 001.
2. MAJOR RAMESH RAMANCHANDRAN
S/O LATE RAMACHANDRAN,
AGED MAJOR,
31/7, 8TH MAIN ROAD,
Digitally
signed by MALLESWARAM, BENGALURU-560 003.
LEELAVATHI ...RESPONDENTS
SR
Location:
(BY SRI. THEJESH P., HCGP FOR R1
High Court R2 IS SERVED BUT UNREPRESENTED)
of Karnataka
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C. PRAYING
TO QUASH ANNEXURE- F THE CHARGE SHEET 507/15 DATED 30.08.2018 AND
THE ORDER DATED 10.09.2018 AS PER ANNEXURE- G, ISSUING PROCESS TO
THE PETITIONER BY REGISTERING CRIMINAL CASE IN C.C.NO.2145/2018, AS
ST
REGISTERED BY THE 1 RESPONDENT FOR THE OFFENCES PUNISHABLE
UNDER SECTION 447, 427, 506 OF INDIAN PENAL CODE PENDING ON THE FILE
OF THE ADDL. CIVIL JUDGE (JR.DN) AND JMFC COURT, NELAMANGALA
BANGALORE RURAL DISTRICT.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 168 of 2023
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks for the following reliefs:-
" a) Issue a writ in the nature of certiorari to quash
Annexure-F the charge sheet 507/2015 and dated:
30.08.2018 and the order dated: 10.09.2018, as per
Annexure-G issuing process to the petitioner by registering
criminal case in C.C.No. 2145/2018, AS registered by the 1st
Respondent for the offences punishable under Section 447,
27,506 of Indian Penal Code pending on the file of Addl.Civil
Judge (Jr.Dn) & JMFC Court, Nelamangala Bangalore Rural
District; and
b) Pass such other orders as may be deemed
appropriate under the circumstances of the case, in the
ends of justice."
2. Heard learned counsel for the petitioner and learned
HCGP for 1st respondent and perused the material on record.
Though the notice of this petition has been served upon the 2nd
respondent, he has chosen to remain absent and unrepresented.
3. In addition to reiterating the various contentions urged in
the petition and referring to the material on record, learned counsel
for the petitioner invited my attention to Section 447 in order to
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contend that notice is required before registering the complaint,
failing which, the impugned proceedings for offences punishable
under Sections 447, 427 and 506 would not be maintainable and
deserves to be quashed. It is also pointed that for quashment of the
proceedings for an offence punishable under Section 447 of IPC,
the consequent offences under Sections 427 and 506 IPC would
also not survive and the same also deserves to be quashed. In
support of his contentions, he placed reliance upon the judgment of
this Court in the case of H.Srinivas Reddy @ Chaky vs. State of
Karnataka & Anr. - Crl.P.No.10005/2021 dated 30.10.2023.
4. As rightly pointed out by the learned counsel for petitioner,
in the light of amendment made to Sections 441 and 447, a proper/
necessary notice prior to registration of the complaint would be
required by the complainant calling upon the accused to remove
the encroachment and in the absence of such notice, the petitioner
cannot be alleged to have committed the offences punishable
under Section 441 and 447 of IPC. Under identical circumstances,
this Court in H.Srinivas Reddy's case supra, held as under:-
" The petitioner has challenged the prosecution
launched against him in C.C.No.20397/2020 pending trial
before the XLI Additional Chief Metropolitan Magistrate,
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Bengaluru (henceforth referred to as 'Trial Court') for the
offences punishable under Sections 419, 420, 447, 427, 506
of IPC.
2. The respondent No.2 informed the respondent
No.1 on 12.11.2018 about the commission of cognizable
offences by petitioner. He claimed that he was residing in the
United States of America. He claimed that he owned a
property bearing No.1, Khata No.624/1 carved out of
residentially converted land in Sy.No.1/2 measuring 11,500
square feet, he having purchased it in terms of a sale deed
dated 24.03.2004. He claimed that he was in possession
and enjoyment of the property and had enclosed it by a
hollow brick compound wall. He claimed that when he
visited Bengaluru on 21.10.2018 and visited the property on
26.10.2018 along with his friend, he noticed that temporary
structures were put up in the property and on verification, he
came to know that it was done at the instance of the
petitioner/accused. He claimed that the petitioner/accused
was the owner of the adjacent property on the eastern side
and that he demolished the portion of the compound wall and
entered into his property and put up temporary sheds. He
claimed that the accused was evading to meet him and had
threatened him and his friends with dire consequences. He
alleged that the accused threatened to kill him and his friend,
if he entered the property. He also claimed that the accused
had created documents to lay a claim to the property and
therefore, requested the respondent No.1 to take suitable
action against the petitioner/accused.
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3. Based on this, the respondent No.1 registered
Crime No.461/2018 for the offences punishable under
Sections 419, 420, 426, 427, 447, 506 read with Section 34
of IPC and took up investigation. Soon thereafter, the
respondent No.2 filed O.S.No.8335/2018 for the relief of
declaration of his title to the property and for recovery of
possession of the property allegedly encroached by the
accused and to demolish the temporary structures put up
thereon and for perpetual injunction restraining the accused
and his servants, agents from interfering with his possession
and from encroaching, alienating or changing the nature of
the property. The respondent No.1 after conducting
investigation, filed a charge-sheet for the offences
punishable under Sections 419, 420, 506, 447, 427 of IPC.
The Trial Court perused the charge-sheet and the materials
along with the charge-sheet and was "satisfied" that the
accused had to be tried for the offences punishable under
Sections 419, 420, 427, 447, 506 of IPC. Consequently, it
took cognizance and directed registration of a criminal case
in C.C.No.20397/2020 and issued process to the accused.
4. Being aggrieved by the aforesaid, the accused
has filed this petition.
5. The learned Senior counsel representing the
petitioner submitted that the Trial Court blindly took
cognizance of the offence under Sections 419 and 420 of
IPC without even looking into the charge-sheet and material
along with the charge-sheet which did not disclose the
commission of any offence under Sections 419 and 420 of
IPC. He contended that the statements of witnesses
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recorded by the respondent No.1 disclosed that there was no
basis to invoke Sections 419 and 420 of IPC. He further
contends that for an offence under Section 447 of IPC to be
attracted, the Trial Court must have noticed the Karnataka
Amendment to Section 441 of IPC, which mandated that an
offence of criminal trespass shall be deemed to have been
committed only when a notice is issued by the owner of the
property to the person who has allegedly trespassed and if
the person, who has trespassed fails to remove himself from
the property. He submits that in the present case, the
respondent No.2 did not issue any notice calling upon the
petitioner/accused to remove himself from the property and
therefore, the essential condition to invoke Section 441 of
IPC is not complied with. In so far as Section 427 of IPC is
concerned, the learned Senior counsel contended that the
petitioner/accused was the owner of the adjacent property
lying on the eastern side of the property claimed by the
respondent No.2 and he is in possession and enjoyment of
his property and therefore, an offence under Section 426 or
427 of IPC is not committed and there is no evidence to
establish the same. As regards Section 504 of IPC is
concerned, he contended that the petitioner/accused is
entitled to protect his possession and therefore, a mere
statement by the respondent No.2 that the petitioner
threatened to kill the respondent No.2 would not be sufficient
unless something is done in continuation of such threat. He
therefore, submitted that the Trial Court did not consider this
but blindly took cognizance of the offences punishable under
the aforesaid provisions.
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6. Per contra, the learned counsel appearing for
the General Power of Attorney holder of respondent No.2
submitted that the petitioner is the owner of the property lying
on the eastern side of the property of the respondent No.2.
He submitted that when the respondent No.2 visited the
property, he found the compound wall on the eastern side
demolished and certain structures were put up in the
property belonging to the respondent No.2. He therefore,
contends that an offence under Section 427, 447 and 426 of
IPC is made out. In so far as offence under Sections 419
and 420 of IPC is concerned, he submits that the petitioner
created a Will to lay a claim to the property of the respondent
No.2. Consequently, an offence under Sections 419 and 420
of IPC is committed. As the petitioner has threatened the
respondent No.2 and his friend of dire consequence and he
also threatened to kill them, an offence under Section 504 of
IPC was also made out. He submits that since the charge-
sheet is now filed, the petitioner may be directed to establish
his innocence before the Trial Court. He contends that an
application for discharge filed by the petitioner was rejected
by the Trial Court and therefore, this petition is a clear abuse
of process of law and Court.
7. The learned High Court Government Pleader
supported the contention of the learned counsel for the
General Power of Attorney holder of respondent No.2 and
submitted that the respondent No.1 has collected sufficient
material to justify the charges against the petitioner.
8. I have considered the submissions made by
the learned Senior counsel for the petitioner as well as the
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learned counsel for the General Power of Attorney holder of
respondent No.2 and the learned High Court Government
Pleader for respondent No.1.
9. A perusal of the entire charge-sheet and
material enclosed discloses that the respondent No.1 has not
taken any steps to ascertain the extent of property claimed
by the petitioner and the property claimed by the respondent
No.2 to charge sheet the petitioner is guilty for an offence
under Sections 447 and 427 of IPC. The charge-sheet
witness namely, CW.2 has merely stated that when he
accompanied the respondent No.2 to the spot, he found the
wall on the eastern side demolished and few temporary
structures were put up. There are no eyewitness to the
incident to drive home the charge under Sections 447, 427
and 426 of IPC. As regards offence under Sections 419 and
420 of IPC is concerned, the respondent No.1 has not
pointed out any circumstance to indicate that the Will set up
by the petitioner was either fraudulent or forged or fabricated
for the purpose of the case. No attempt is made to secure
information from the attesting witnesses to the Will to
ascertain whether the Will was bogus or fabricated. Even
otherwise, there is no entrustment of any property by the
respondent No.2 to the petitioner to attract an offence under
Sections 419 and 420 of IPC. If the aforesaid is accepted,
then the only offence that remains is under Section 504 of
IPC. The respondent No.2 has instituted a suit for
declaration of his title and for recovery of possession.
Therefore, it is more than apparent that the petitioner and the
respondent No.2 are at loggerheads over a property and
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hence, unless there is categorical material secured by the
respondent No.1 to indicate the extent of the property owned
and possessed by the respondent No.2 and the petitioner, an
offence under Section 504 of IPC cannot be held to be
committed. As rightly contended by the learned Senior
counsel for the petitioner, an offence under Section 447 of
IPC is said to be committed when a notice is caused upon
the petitioner/accused calling upon him to remove himself
from the property and that having not been done, an offence
under Section 447 of IPC is not attracted.
10. It is rather unfortunate that the Trial Court
without even looking into any of these, has blindly taken
cognizance of the offences by holding that the charge-sheet
and the material produced along with it "satisfied" the
conscience of the Court that the petitioner has committed the
aforesaid offences. The Trial Court must have applied itself
to the facts more particularly in the light of the fact that a civil
suit is already filed by the respondent No.2 before taking
cognizance.
11. In that view of the matter, this petition is
allowed. The prosecution of the petitioner in
C.C.No.20397/2020 pending trial before the XLI Additional
Chief Metropolitan Magistrate, Bengaluru for the offences
punishable under Sections 419, 420, 447, 427, 506 of IPC is
quashed.
12. It is needless to mention that the respondent
No.2 is entitled to urge all contentions including the loss
caused to him by the petitioner and recover the same in
accordance with law in the pending suit."
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5. In the instant case, the material on record would clearly
indicate that prior notice was not issued by the complainant to the
petitioner - accused before registration of the FIR which would
vitiate the complaint and the FIR and same deserves to be
quashed. Insofar as the offence punishable under Sections 447 of
IPC is concerned, the same being consequent to the offences
under Sections 427 and 506 of IPC, the same also would not
survive for consideration and the same deserves to be quashed.
6. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned proceedings in C.C.No.2145/2008 arising
out of Crime No.507/2015 registered by the 1st respondent - Police
for the offences punishable under Sections 447, 427 and 506 of
IPC pending on the file of Addl.Civil Judge (Jr.Dn) & JMFC,
Nelamangala, insofar as the petitioner is concerned are hereby
quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
Srl.
