Karnataka High Court
Sri. Kamalesh V Shah vs Deputy Commissioner Of Police on 26 September, 2025
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WP No. 28083 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 28083 OF 2025 (GM-RES)
BETWEEN:
1. SRI. KAMALESH V SHAH
S/O LATE VIMAL B SHAH,
AGED ABOUT 64 YEARS,
R/A NO.16, 3RD FLOOR, NARANG CHAMBERS,
NEW RAJA BUILDING, N.R.ROAD,
BENGALURU SOUTH,
BENGALURU - 560002.
2. SRI. MUKESH
S/O VENKATASWAMY,
AGED ABOUT 40 YEARS,
3. SRI. SURESH
S/O CHINNAPPA,
AGED ABOUT 48 YEARS,
Digitally signed
by CHAITHRA A
Location: HIGH PETITIONER NO.2 AND 3 ARE
COURT OF
KARNATAKA R/A KALENA AGRAHARA VILLAGE,
BANNERGHATTA MAIN ROAD,
BENGALURU - 560076.
4. SRI. M. SRIDHARA RAO
S/O M. KRISHNAMA NAIDU,
AGED ABOUT 57 YEARS,
R/AT NO.176, 2ND FLOOR, 4TH MAIN ROAD,
NRUPATHUNGA NAGARA.
J.P.NAGARA. 7TH PHASE,
BENGALURU - 560078.
...PETITIONERS
(BY SRI. K. VIJAYA KUMAR, ADVOCATE)
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WP No. 28083 of 2025
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AND:
1. DEPUTY COMMISSIONER OF POLICE
SOUTH EAST DIVISION AND SPECIAL EXECUTIVE
MAGISTRATE,
BENGALURU CITY,
BENGALURU - 560095.
2. STATE OF KARNATAKA
BY HULIMAVU POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560001.
...RESPONDENTS
(BY SRI. B.N.JAGADEESHA, ADDL. SPP ALONG WITH
SRI. ANOOP KUMAR, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BNSS PRAYING TO QUASH / SET ASIDE THE FOUR CAUSE
NOTICES, BEARING NO. M G/CRM/460/DCP(A. VI)/2025,
DATED 18.08.2025, ISSUED BY THE R1 TO THE PETITIONERS
(ANNEXURE -A1 TO A4), BY ALLOWING THIS WP.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
This petition is filed challenging the show-cause
notices dated 18.08.2025, produced at Annexures-A1 to
A4, issued by respondent No.1 - the Special Executive
Magistrate. The said notices have been issued in exercise
of the powers conferred under Section 126 of the
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Bharatiya Nyaya Sanhita, 2023, and are purportedly
issued under Section 130 of the said Act. The legality and
validity of these notices are under challenge in the present
petition.
2. I have heard the learned counsel appearing for
the petitioners as well as the learned Additional SPP
representing the State. I have also carefully perused the
material placed on record.
3. The facts of the case present a very sorry state of
affairs. Despite the pendency of a civil suit between the
petitioners and the complainant , at whose instance
proceedings under Section 127 of BNS 2023 have been
initiated , the action of respondent No.1/Deputy
Commissioner of Police/Executive Magistrate in issuing the
impugned notices was wholly unwarranted. At this stage,
it becomes necessary to refer to the civil proceedings. It is
seen that Sri. Venugopal A.M. and Sri. Shivashankar V.
have instituted O.S.No.582/2025 seeking relief of
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perpetual injunction. The reliefs claimed in the said suit
are extracted as under:
"Wherefore, the plaintiffs humbly pray that this
Hon'ble Court may be pleased to pass:
i) Judgment and decree restraining the defendants
from interfering or from causing interference with the
plaintiffs peaceful possession and enjoyment of the suit
schedule property either by defendants or their men,
agents or any person/persons claiming through or under
them by way of permanent injunction.
ii) To pass judgment and decree restraining the
defendants from damaging the fence constructed by the
plaintiffs on the suit schedule property either by the
defendants or their men, agents or any person/persons
claiming through or under them by way of permanent
injunction.
iii) To pass such other orders or decree as deems fit
by this Hon'ble Court in the facts and circumstances of
the above case."
4. The plaintiffs in the said suit had also filed an
application under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure seeking interim injunction. The Trial
Court, by its order, granted the relief of interim injunction.
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Being aggrieved by the said order dated 09.07.2025, the
present petitioners preferred an appeal before the
Appellate Court under Order XLIII Rule 1(r) of CPC. The
Appellate Court, in M.A. No.71/2025, allowed the appeal
and set aside the order of the Trial Court granting
injunction. This Court finds it appropriate to refer to the
observations of the Appellate Court. Paragraphs 25 and 26
of the judgment in M.A. No.71/2025, being relevant for
the present case, are extracted herein below:
"25. Admittedly, the respondent Nos.1 and 2 -
plaintiffs in the present case have filed suit seeking for
permanent injunction against the appellants and others
in respect of the suit schedule property. From the rival
contention of the parties, it is quite clear that the
appellants-defendants have disputed the title of plaintiffs
over the suit schedule property and they have setup
their own separate title over the suit schedule property.
Hence, it is clear that cloud is casted upon the title of the
plaintiffs over the suit schedule property. Moreover it
appers are there are litigation pending before the Civil
Court as well as Revenue Authority by and between the
vendors of plaintiffs and defendants in respect of the suit
schedule property which have not reached finality.
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have to prove their possession based on the title over
the suit schedule property as they are claiming in order
to convince the Court with regard to interference by the
defendants - appellants over the plaintiff's possession on
the suit schedule property. The appellants - defendants
have denied the flow the title of the plaintiffs over the
suit schedule property and they have set up their own
separate title over the suit schedule property.
On considering the materials available before the Court,
it is quite clear that cloud is casted on the title of the
plaintiffs over the suit schedule property which they have
to establish in a suit for declaration of title. For these
reasons it is clear that there is no prima-facie case in
favour of plaintiffs. The balance of convenience does not
lie in favour of plaintiffs. Further irreparable loss and
injury would not cause to the plaintiffs if temporary
injunction is not granted in their favour as prayed."
Emphasis supplied by me
5. On a closer examination of the observations made
by the competent Appellate Court in the Miscellaneous
Appeal proceedings under Order XLIII Rule 1(r) of the
Code of Civil Procedure, it is evident that the title as well
as the possession claimed by the plaintiffs/complainant
was found to be doubtful. Consequently, the order of
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injunction granted by the Court of first instance was set
aside. Once the interim injunction granted by the Trial
Court has been reversed by the Appellate Court, it
necessarily presupposes that the plaintiffs therein were
held not to be in lawful possession of the suit property.
6. Prima-facie, it appears that having suffered an
adverse order at the hands of the Appellate Court in the
Miscellaneous Appeal, the plaintiffs sought to circumvent
the judicial process by approaching respondent No.1 who
also happens to be the Executive Magistrate - and lodged
a complaint. Acting upon such complaint, respondent No.1
proceeded to issue show-cause notices under Section 126
of the Bharatiya Nyaya Sanhita, 2023.
7. This Court cannot remain oblivious to the fact
that, time and again, it has been repeatedly emphasized in
a catena of judgments that when a dispute is already
seized before a competent Civil Court between two private
individuals, the Executive Magistrate or any other
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prescribed Police Officer ought not to exercise jurisdiction
under Section 127 of the Bharatiya Nagarik Suraksha
Sanhita (earlier Section 107 of the Code of Criminal
Procedure). Despite clear guidelines and judicial
pronouncements, it is unfortunate that the prescribed
authorities and Executive Magistrates are often swayed by
private complaints, thereby initiating parallel proceedings,
which are wholly unwarranted.
8. In fairness, the learned Additional State Public
Prosecutor has submitted that although respondent No.1
did issue show-cause notices in the present case, no
further action was contemplated, as it was later noticed
that the matter was already pending adjudication before
the Civil Court. Be that as it may, this Court is of the
considered view that respondent No.1, henceforth, must
exercise caution and circumspection whenever complaints
are lodged by private parties. It is incumbent upon the
Executive Magistrate to ascertain, at the very threshold,
whether the grievance is of a purely civil nature. Unless
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there is a clear report disclosing commission of a
cognizable offence and a prima facie case is made out, the
Executive Magistrate ought to refrain from exercising
powers under Section 126 of the Bharatiya Nyaya Sanhita.
In fact, before embarking upon any proceedings under
Section 126, it would be prudent for the authority
concerned to conduct a preliminary enquiry so as to rule
out the possibility of the dispute being purely civil in
character.
9. In the present case, it appears that respondent
No.1, acting solely on the complaint lodged by the
plaintiffs, hastily initiated proceedings by issuing show-
cause notices under Section 127. Now that the Appellate
Court has vacated the interim injunction and has
categorically held that the plaintiffs' claim of possession is
doubtful, this Court is of the considered opinion that the
proceedings initiated by respondent No.1 are wholly
unsustainable in law and are therefore liable to be
quashed.
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10. For the foregoing reasons, this Court proceeds to
pass the following:
ORDER
(i) The writ petition is hereby
allowed.
(ii) The show-cause notices dated
18.08.2025, issued by respondent No.1 to
the petitioners and produced at
Annexures-A1 to A4, are quashed and set
aside.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
NBM
