Telangana High Court

E.Padma And 2 Others vs The State Of Telangana And Another on 16 August, 2021

Bench: K.Lakshman

                HON'BLE SRI JUSTICE K. LAKSHMAN

                CRIMINAL PETITION No.4371 OF 2021

ORDER:

This Criminal Petition is filed under Section 482 of the Code of

Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioners to

quash the proceedings in Cr.No.163 of 2021 pending on the file of the

Police, Shankarpally Police Station, Cyberabad. The petitioners herein

are accused Nos.1 to 3 in the said crime registered for the offences

under Sections 447 and 427 read with 34 of IPC.

2. Heard Sri D.V.Seetha Rama Murthy, learned senior counsel,

representing Sri T.Mamidi Avinash Reddy, learned counsel for the

petitioners, Sri K.S.Murthy, learned counsel representing Sri Naresh

Reddy Chinnolla, learned counsel for the 2nd respondent, and the

learned Public Prosecutor and perused the record.

3. As per the complaint, dated 31.03.2021, the allegations

against the petitioners are as follows:-

i) 2nd respondent has purchased the land admeasuring

Ac.0.06guntas in Sy.No.135/A situated at Bhulkapur village,

Sankarpally Mandal, Ranga Reddy district (for short, 'the subject

property'), under registered sale deed bearing Document No.6220 of

2019, dated 01.06.2019 and thereafter he got mutated his name in

the revenue records. His vendor sold the said land with already

constructed compound wall and 2nd respondent is in possession of

the subject land since then.

ii) On 14.12.2020 at 2 o' clock, while he was passing through

Shankarpally road, he saw few people demolishing his compound wall

and trying to trespass into his land. They have demolished compound

wall and destructed the gate. The said trespass was done by 1st and KL,J CrlPNo.4371_2021

3rd petitioners herein/A.1 and A.3. He has informed the same to the

Circle Inspector of Shankarpally Police Station on the same day along

with his father. He also gave a written complaint on 06.02.2021 in

Shankarpally Police Station.

iii) With the said allegations, 2nd respondent has lodged the

present compliant, dated 31.03.2021 with the Police, Shankarpally,

who in turn, registered a case in Cr.No.163 of 2021 against the

petitioners herein for the aforesaid offences.

     4) CONTENTIONS            OF    LEARNED         COUNSEL     FOR      THE
PETITONERS:

i) Referring to the contents of the said complaint, Sri D.V.Sitha

Rama Murthy, learned Senior Counsel would submit that the

contents of the complaint lacks the ingredients of the offences alleged

against the petitioners herein.

ii) 2nd respondent has not mentioned the Survey Number in

which his land was situated.

iii) There is delay of almost 3½ months in lodging complaint

from the alleged date of incident i.e. 14.12.2020.

iv) Referring to the allegation in the complaint, dated

31.03.2021, that the petitioners are trying to trespass into his land,

learned Senior counsel would submit that the said allegation does not

constitute offence under Section 447 of IPC.

v) He would further submit that 1st petitioner herein has filed a

suit vide O.S.No.30 of 2014 against Ms.Gundedevuni Srilatha and

Kondagadapu Sadanand for perpetual injunction and the Court below

has passed interim injunction in I.A.No.353 of 2014 in O.S.No.30 of

2014 and also granted police protection vide order dated 27.12.2019

in I.A.No.146 of 2019 in O.S.No.30 of 2014 in favour of the 1st KL,J CrlPNo.4371_2021

petitioner herein for construction of compound wall on the southern

side of the suit schedule property. According to learned Senior

counsel, the said injunction order and the said police aid order dated

27.12.2019 are subsisting. Even then, knowing very well the said

orders, the 2nd respondent has implicated the petitioners herein in a

false case.

vi) With the said submissions, learned Senior Counsel sought to

quash the proceedings in Cr.No.163 of 2021.

5. CONTENTIONS OF THE LEARNED COUNSEL FOR THE 2ND RESPONDENT:

i) There are specific allegations against the petitioners herein.

The First Information Report is not an encyclopedia. The petitioners

herein have already demolished the compound wall.

ii) The petitioners have already obtained bail. There are several

factual aspects to be investigated by the Investigating Officer during

the course of investigation including the aspect of delay in lodging the

complaint.

iii) With the above said submissions and referring to the

guidelines issued by the Honorable Apex Court, in M/s Neeharika

Infrastructure Pvt.Ltd. Vs. State of Maharashtra1, he sought to

dismiss the present Criminal Petition.

6. CONTENTIONS OF THE LEARNED PUBLIC PROSECUTOR:

i) Learned Public Prosecutor would submit that there are

several factual aspects to be investigated into by the Investigating

Officer and admittedly, the investigation is pending.

ii) According to him, investigation may not be interdicted at the

initial stage.

2021 SCC OnLine SC 315 KL,J CrlPNo.4371_2021

iii) With the said submissions, learned Public Prosecutor sought

to dismiss the Criminal Petition.

ANALYSIS AND FINDINGS OF THE COURT:

7. A perusal of the record would reveal that the 2nd respondent

has purchased the subject property, under registered sale deed

bearing Document No.6220/2019 dated 01.06.2019 from

Ms.Gundedevuni Srilatha and Kondagadapu Sadanand represented

by their AGPA holders Mr.Yavulla Raj Kumar, and Mr.Gudidevuni

Raghavendra Swamy Goud. The said Ms.Gundedevuni Srilatha and

Kondagadapu Sadanand have purchased the said property from Smt.

Mangali Buchaiah and two others under registered sale deed bearing

Document No.124 of 2011, dated 24.01.2011. Whereas, the 1st

petitioner herein claiming that she has purchased the land

admeasuring Ac.3-24 guntas in Sy.No.135/AA, 135/A, 135/A and

134/LU under a registered sale deed bearing document No.1307 of

2004 dated 27.02.2004 from A.R.Ananthan Krishnan who has

purchased the said land under four registered sale deeds from Sri

Manikonda Laxma Reddy, Mangali Narayana, Mangali Sattaiah and

Chakali Bhumaiah. The 1st petitioner herein has lodged a complaint

with the Police, Shankarpally Police Station, against Dandu Sailu,

complaining about his illegal trespass into the land belongs to the 1st

petitioner and Shankerpally Police in turn, registered a case in

Cr.No.457 of 2017 for the offences under Sections 447 and 506 of

IPC.

8. The 1st petitioner herein has also filed a suit vide O.S.No.30

of 2014 against said Ms.Gundedevuni Srilatha and Kondagadapu

Sadanand for perpetual injunction. The Court below has also granted

interim injunction in favour of the 1st petitioner herein restraining the KL,J CrlPNo.4371_2021

said Ms.Gundedevuni Srilatha and Kondagadapu Sadanand from

interfering with the possession of the 1st petitioner over the subject

land. On the application filed by the 1st petitioner herein, the Court

below has also granted police aid for the purpose of construction of

compound wall vide order dated 27.12.2019 in I.A.No.146 of 2019 in

O.S.No.30 of 2014. The said order is still subsisting and the said suit

is pending. It is also relevant to note that the said Ms.Gundedevuni

Srilatha and Kondagadapu Sadanand are the vendors of the 2nd

respondent herein.

9. A perusal of the complaint dated 31.03.2021 would also

reveal that 2nd respondent has not mentioned any survey number.

According to him, the alleged demolition of compound wall was on

14.12.2020. According to him, he has given a written complaint with

the said Police on 06.02.2021 but he has not filed a copy of the said

complaints dated 14.12.2020 and 06.02.2020 before this Court.

Thus, there is delay of almost 3½ months in lodging the present

complaint. It is also relevant to note that there is no mention about

construction of compound wall in the sale deed bearing document

No.6220 of 2019, dated 01.06.2019 through which 2nd respondent

came into right over the subject property. However, 2nd respondent

has filed mutation proceedings dated 27.07.2019 issued by Tahsildar,

Shankarpally Mandal wherein his name was mutated in respect

06guntas in Sy.No.135/A.1/1/2/1 and 135/A1/1/2/3. The name of

2nd petitioner is not there in the complaint dated 31.03.2021.

However, the Investigating Officer has shown 2nd petitioner as A.2 in

Cr.No.163 of 2021.

10. As discussed supra, admittedly, a suit vide O.S.No.30 of

2014 filed by 1st petitioner against the vendors of 2nd respondent KL,J CrlPNo.4371_2021

seeking perpetual injunction was pending. There is an interim

injunction against the vendors of 2nd respondent and in favour of 1st

petitioner herein and the Court below has also granted police aid in

favour of 1st petitioner for construction of compound wall. Therefore,

there is cloud over the title and possession of 2nd respondent over the

subject property. Admittedly, the possession and prima facie title of

1st petitioner over the land admeasuring Ac.3-14guntas in

Sy.Nos135/AA, 135/A, 135/A, 134/LU situated at Bhulkapoor

village, Shankarpally Mandal, Ranga Reddy district, is proved and on

satisfaction of the same only, the Court below has granted interim

injunction in favour of 1st petitioner herein and also granted police aid

in her favour for construction of a compound wall.

11. As discussed supra, there is 3 ½ months delay in lodging a

complaint by the 2nd respondent and there is no allegation against 2nd

petitioner herein in the complaint dated 31.03.2021. 2nd respondent

has not filed any document to show that a compound wall was

constructed encircling his property admeasuring 06guntas in

Sy.No.135/A of Bhulkapoor village. Therefore, 2nd respondent cannot

seek adjudication of title and possession over the subject property

from the Investigating Officer in Cr.No.163 of 2021. If at all, 2nd

respondent is having any grievance, either he has to file a separate

suit against the petitioners herein or get impleaded himself in

O.S.No.30 of 2014. Admittedly, 2nd respondent has not done so.

12. Section 441 of the IPC deals with criminal trespass which is

punishable under Section 447 of the IPC. The ingredients of Section

441 of the IPC are as follows:-

i) Entering into or upon the property in the possession of another, KL,J CrlPNo.4371_2021

ii) Such entry should be with the intent to

a) To commit an offence

b) To intimidate, insult or annoy any person in possession of the property.

13. Referring to the said ingredients of Section 441 of the IPC

and also on examination of the facts, the Bombay High Court in

Sumitra Hiralal Saklikar Vs. Hemant Radhakrishna Sapale2

categorically held that the distinction between the civil trespass and

the criminal trespass cannot be forgotten. Making an unlawful entry

into any property or taking possession, it does not constitute any

offence. The aim behind erecting of the scaffolding could not be to

commit any offence, or to cause annoyance to the complainant. Even

if annoyance would actually be caused to the complainant, that was

not the aim or intention behind the erecting of the scaffolding. The

dispute that was already pending between the parties, clearly shows

that the same is of a civil trespass. With the said findings, the

Bombay High Court has quashed the proceedings against the accused

therein for the offence under Section 447 of the IPC on the ground

that the contents of the complaint therein lacks the ingredients of the

offence under Section 447 of IPC.

14. In another case in Yenamandra Venkateswara Siddanti

Vs. Guntamikkala Venkanna3 referring to ingredients of Section 441

of IPC and also facts of the said case, it was held that "Section 441 of

IPC is designed to protect possession and it is immaterial whether the

complainant has title to the property or not; but every unlawful entry

upon the land in the possession of another cannot be criminal trespass.

It is only such unlawful entry or lawful entry followed by unlawful stay

(2013) 5 AIR Bom R 883

APLJ 1980(1) (H.C. page 74) KL,J CrlPNo.4371_2021

which is made with the intent specified in Section 441 IPC that would

amount to criminal trespass. The essence of the offence of criminal

trespass is the intention to commit an offence or to intimidate or insult

or annoy the person in possession of the property. If the unlawful entry

or unlawful stay is made with any other intention, such entry or stay

does not amount to criminal trespass even if the consequence of the

entry or stay is annoyance to the person in possession of the property

and the person entering or staying has knowledge of the consequence.

Knowledge of the consequences is not the same an intention to produce

that consequence, knowledge is mental awareness connoting mere

cognition while intention is the dominant or main desire implying

volition. Section 441 IPC does not take in its ambit unlawful entries

with mere knowledge of the consequence of annoyance to the persons

in possession, but makes punishable only unlawful entries or stays

made with the intention specified in the Section."

15. It is further held that "if an entry on the land in the

possession of another is made in the exercise of a bona fide claim of

right, whether such claim is well-founded or ill-founded in law, it cannot

be said that the entry is made with intent to intimidate, insult or annoy

the person In possession or to commit an offence, though the probable

consequence of the entry may be annoyance or intimidation to the

person in possession. No doubt the claim in the exercise or assertion of

which the entry is made, should be bona fide: it should not be a mere

cloak or colourable pretence camouflaging the real intent. If, on an

examination of all the facts and circumstances of the case, the court

finds that the main or dominant or real intention of the person making

the entry is to assert a right or a supposed right, the court will have to

acquit him of the offence of criminal trespass."

KL,J CrlPNo.4371_2021

16. As discussed supra, the above said ingredients under

Section 441 of the IPC are lacking in the complaint dated 31.03.2021.

Admittedly, a suit vide O.S.No.30 of 2014 is pending between 1st

petitioner and the vendors of 2nd respondent. Thus, as stated supra,

there is cloud over the title and possession of the 2nd respondent over

the subject land.

17. In M/s Neeharika Infrastructure Pvt.Ltd. Vs. State of

Maharashtra4, the three Judge Bench of Hon'ble Apex Court referring

to its earlier judgments including State of Haryana Vs. Bhajanlal5

laid certain conclusions, for the purpose of exercising powers by High

Courts under Section 482 of Cr.P.C which are as under:

"....

iv) 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 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) 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;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) 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, recognized to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) 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;

2021 SCC OnLine SC 315

1992 AIR 604 KL,J CrlPNo.4371_2021

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia 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;

xiii) The power under Section 482 Cr.P.C.. 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;

xiv) 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, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C. 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.;

18. The Honorable Apex court in Special Leave Petition

(Criminal) No.3869 of 2021, dated 20.07.2021 referring to the said

principle laid down in Neeharika (supra), held that "Supreme Court in

Neeharika (supra) certainly allowed space for the High Court to pass

an interim order of the nature impugned herein, "in exceptional cases

with caution and circumspection, giving brief reasons". What is frowned

upon in Neeharika (supra) is the tendency of the courts to pass

blanket, cryptic, laconic, non speaking orders reading "no coercive

steps shall be adopted."

19. Thus, in view of the discussion supra, according to this

Court, the proceedings in Cr.No.163 of 2021 pending on the file of the KL,J CrlPNo.4371_2021

Police, Shankarpally cannot go against the petitioners herein.