Karnataka High Court
Dr B G Shiva Prasad vs State Of Karnataka By on 19 September, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 19th SEPTEMBER, 2014
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO.2574/2013
BETWEEN
1. DR. B.G.SHIVA PRASAD,
AGED ABOUT 65 YEARS,
S/O LATE B. GOPALAIAH,
R/O NO.64, GROUND FLOOR,
RANGARAO ROAD,
SHANKARAPURAM,
BANGALORE-560 004
PERMANENTLY RESIDING AT USA.
2. SMT. B. USHA SHIVAPRASAD,
AGED ABOUT 60 YEARS,
W/O SRI. B.G. SHIVAPRASAD,
R/O NO.64, RANGA RAO ROAD,
SHANKARAPURAM,
BANGALORE-560 004.
3. VIVEK RAM P. BELLUR,
AGED ABOUT 34 YEARS,
S/O B.G. SHIVAPRASAD,
NO.64, RANGA RAO ROAD,
SHANAKARAPURAM,
BANGALORE-560 004
PERMANENTLY RESIDING AT USA.
4. VIDYA P. BELLUR,
AGED ABOUT 29 YEARS,
2
D/O B.G. SHIVAPRASAD,
R/O NO.64, RANGA RAO ROAD,
SHANAKARAPURAM,
BANGALORE- 560 004. ... PETITIONERS
(BY SRI.H.R.ANANTHAKRISHNA MURTHY ADV., FOR
SRI. H.RAMACHANDRA ADV., FOR PETITIONER NO.1,
SMT. USHA SHIVAPRASAD.B, (PARTY-IN-PERSON))
AND
1. STATE OF KARNATAKA BY
SHANKARAPURAM POLICE
STATION BY SPP HIGH COURT,
BUILDING, BANGALORE-1.
2. SMT. SARASAMBA,
W/O LATE ANANTHASWAMY,
AGED ABOUT 74 YEARS,
NO.64, 1ST FLOOR, RANGA RAO ROAD,
SHANKARAPURAM,
BANGALORE- 560 004. ... RESPONDENTS
(BY SRI. B.J.ESHWARAPPA, HCGP FOR R1,
SRI.R.CHANDRASHEKAR, ADV., FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING
TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.2433/2013 PENDING ON THE FILE OF THE I
A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed seeking for quashing of the entire proceedings in CC No.2433/2013 pending 3 on the file of the I Addl. CMM., Bangalore, registered against the petitioners for offence punishable under Sections 341, 504 and 506 of IPC.
2. I have heard the arguments of the learned counsel for the petitioners and the learned counsel for respondent No.2 and also the learned High Court Government Pleader for respondent No.1 - State. I have perused the materials placed before the Court including the charge sheet papers available on record.
3. It is contended by the learned counsel for the petitioners that the matter is purely civil in nature. The parties are close relatives to each other. They have been fighting for their rights over the immoveable property and they have already entered the civil court by agitating their rights in a civil suit in OS No.677/2010. In this context, some Criminal cases are also lodged against each other and when the matter is purely civil in nature and the parties are attempted to drag other 4 party to the Criminal Court, such proceedings should not be allowed to be continued.
4. Secondly, the learned counsel for the petitioner contended that even if the entire allegations made in the FIR and the charge sheet are translated into evidence, they are not sufficient to constitute any offence as alleged against the petitioners punishable under section 341, 504 and 506 of IPC. Therefore, when the FIR on its face value does not disclose any offence, such proceedings shall not be ordered to be continued. Otherwise, the same would amounts to abuse of process of law.
5. Per contra, the learned counsel for the respondent No.2 strenuously contended that civil suit filed by the petitioner No.1 herein came to be partly decreed holding that plaintiff No.3 and defendant Nos.1 & 2 are entitled for 1/3rd share in the suit schedule property. There is no dispute that this particular decree 5 has been challenged in RFA No.1522/2003 and the same is pending before the High Court.
6. The learned counsel for respondent No.2 further contents that the nature of allegations and the facts and circumstances of the case as disclosed in the FIR clearly discloses the commission of the offences punishable u/ss.341, 504 and 506 of IPC. Therefore, at the threshold, while exercising the powers u/s.482 of Cr.PC, the Court cannot scuttle the criminal prosecution, otherwise the very purpose of filing the complaint will be frustrated. Further, he contended with regard to the conduct of the petitioners herein but this court is precluded from considering the conduct of the parties while considering the case under Section 482 of Cr.PC because the court is bound to look into the materials on record and record its finding.
7. Having heard the arguments of the learned counsel for the petitioners and the learned counsel for 6 respondent No.2, let me go through the rulings cited by the learned counsel for the petitioners in this regard.
8. In a decision reported in 2008 AIR SCW 3262, between Suneet Gupta Vs. Anil Triloknath Sharma and Others, the Hon'ble Apex Court has held that -
"If the dispute involved is purely civil in nature and sought to be converted in a Criminal by resorting to pressure tactics - criminal proceedings initiated are nothing but abuse of process of law. Quashing of proceedings are proper."
In another ruling reported in 2007 AIR SCW 6453 between Rajinder Singh Katoch Vs. Chandigarh Administration and Others, the Hon'ble Apex Court has held that -
"Wrongful restraint - Joint family property - Denial of right to co-sharer to enjoy joint family property - Should be enforced through remedies available under civil law - 7 Criminal proceedings cannot be taken recourse to."
In an unreported decision of the Supreme Court of India in Criminal Appeal No.2069/2012 between Paramjeet Batra Vs. State of Uttarakhand & Others, wherein at paragraph 7, it was held that -
"While exercising its jurisdiction u/s.482 of Cr.PC, the High Court has to be cautious. This power is to be used very sparingly and only for the purpose of preventing abuse of process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has 8 happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court."
9. The learned counsel for the petitioners also drawn my attention that the petitioner No.2 Smt. Usha Shivaprasad has also filed a Criminal Case against the second respondent herein and the same was registered in CC No.2437/2013 and this Court after perusal of the materials on record, considering the pendency of the civil disputes between the parties and also considering the averments in the complaint, quashed the entire proceedings against the said Sri Prabhakar Ananthaswamy. Therefore, it clearly goes to show that the parties are fighting each other for their civil remedies and they want to convert each and every circumstance into a Criminal Case in order to harass each other. Such things should not be allowed to be continued. Therefore, he requests for quashing of the proceedings.
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10. Before adverting to the facts of this particular case, it is just and necessary to recollect the principles laid down in the case reported in 1992 SUPP (1) SCC 335 between STATE OF HARIYANA AND OTHERS VS. BHAJANLAL AND OTHERS, wherein the Hon'ble Apex Court though has exhaustively dealt with the factual matrix of the case, has categorically laid down certain guidelines. In my opinion, the said guidelines are relevant so far as this case is concerned which are as follows:
(1) where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officer under Section 156(1) of the 10 Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code 11 or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. In the above said background, the court has to analyse and peruse first whether the complaint averments constitute any offence or even broadly looking into the allegations made in the complaint whether it is so absurd that an ordinary prudent man can come to the conclusion that such allegations are sufficient to continue the criminal 12 prosecution. The complaint dated 7.7.2012 filed by the second respondent reads thus -
"We are the residents of the I floor at the above address for the lost 23 years after having built it at our own cost with the permission of B.G. Shiva Prasad my brother and my father B. Gopalaiah. Now, B.G. Shivaprasad has gone back on his words and has filed an eviction suit on us at the city civil court (Suit No.677/2010). The case is pending before the court, we have erected a car shed with gate and have been using it for the last 12 years. Today, evening at 8.45 Shivaprasad has got his car parked in our shed, when my son has taken out the car. When enquired, he threatened me of dire consequences using foul language along with his wife Smt. Usha, son Vivekram and daughter Vidya P. Bellur. They have even blocked the entry at the entrance gate."
This is what the allegations made in the complaint. 13
12. Now, let me go through Section 341 of IPC invoked by the Police. Section 341 of IPC clearly discloses that -
"Whoever wrongfully restrains any
person shall be punished with simple
imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
This clearly goes to show that a person should be wrongfully restrained, the word 'wrongful' pre-supposes that the person restrained should have some exclusive right over the said property or the person who restrained other person should not have any right over the property. Therefore, the use of the word 'wrongful' itself shows that one of the persons should have right over the property and another person should not have right over the property. In this context, the dispute between the parties play an important role as the suit filed in OS No.677/2010 filed for eviction, much prior to 14 the incident and subsequently converted into a partition suit and the court has allotted 1/3rd share to the parties to the proceedings that clearly goes to show that so far as this portion of the property, each and every person, till the decree is granted by the Court are the owners of the property as on today, unless the said decree is set aside by the competent appellate court. Therefore, so far as this Car shed is concerned, first floor is concerned, ground floor is concerned, both the persons who claim over the property and all the parties are entitled to undivided 1/3rd share as declared by the Court. Therefore, in my considered opinion that the words 'wrongful restraint' cannot be applied so far as this particular case is concerned. It cannot be said that one person has wrongfully restrained another because both of them have equal right over each and every inch of the property in view of the civil decree passed by the Civil court. Therefore, in my opinion, Section 341 of IPC is not applicable so far as this case is concerned. 15
13. The provision of Section 504 of IPC invoked by the Police reads thus -
"504. Intentional insult with intent to provoke breach of the peace - Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
On plain reading of this provision, it is not only using of specific abusive words are to be stated, but it has to be described that, the said words should have been intentionally used for insulting the other person. Even insulting is not sufficient but it should further indicate that those words intentionally insults some person but thereby gives provocation to break the public peace or to commit any other offence, then only the said act is punishable u/s.504 of IPC.
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14. Now, let me go through the contents of the allegations made in the FIR. It is only in one sentence, stated that "accused persons used foul language along with his wife and son". Except using of the word 'foul language', what are those foul language or foul words used by the accused persons is not stated, in order to ascertain whether those words used are sufficient to consider them as abusive or insulting words or language and those words are sufficient to provoke a person to commit breach of peace or to commit any other offence for the time being in force. Merely using of the word that, some foul words are used, not sufficient but those abusive words should be expressly stated in order to satisfy the requirement of law that those words if understood by the Court or any ordinary prudent man, are sufficient to insult the other person in order to provoke him to cause breach of peace or to commit any offence but such words are not there 17 in the FIR/complaint. Therefore, the allegations does not constitute an offence against the petitioners u/s.504 of IPC.
15. Lastly, the provision of Section 506 of IPC invoked by the Police reads thus -
"506. Punishment for criminal intimidation - whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;"
This particular provision shows that there should be a threat to cause death or grievous hurt. The intimidation should be grievous hurt or for death punishable with imprisonment for a term which may extend to seven years or with fine, or with both. Here, if the complaint is read meticulously, it is only stated, the petitioners have threatened the complainant with dire consequences. This is also in my opinion, very absurd 18 words. It is not specific as to what is the dire consequence uttered by the petitioners is not stated whether to cause any grievous hurt or whether to cause any life threat or to cause any threat to the second respondent or anybody. Therefore, in my opinion, even on plain reading of the allegations made in the complaint, they are not sufficient to constitute an offence invoked by the Police.
16. Coming back to the civil dispute and other materials available on record, it is quite natural that when the parties are fighting before the civil court, they wanted to through the dirt against each other. these two complaints are filed against one another and are all subsequent to the filing of the civil suit.
17. It is worth to note here the observations made by this Court while quashing of the proceedings so far as the complaint lodged by the second petitioner is concerned i.e., in CRL.P. No.7382/2013 dated 19 27.6.2014, wherein, this court has categorically observed at paragraph 2 with regard to the pendency of the dispute between the parties and the civil court has granted the decree declaring 1/3rd share and etc., At paragraph 4 of the order, the Court has also observed that -
"......the dispute between the parties with reference to their right in an immoveable property which is the subject matter of the civil dispute, is blown out of proportion, resulting in the complainant filing a false complaint against the petitioner. In view of the aforesaid discussion, the petition is allowed. The proceeding in CC No.2437/2013 on the file of the I ACMM, Bangalore, pursuant to complaint in Crime No.80/2012 registered with Shankarpura Police for an offence punishable u/s.324 is hereby quashed."
Similarly, the same principle is also applicable to this case. Because of the above said surrounding 20 circumstances and even considering the allegations made in the FIR, the previous complaint filed by the petitioners, this petition is also deserves to be allowed. Otherwise, the continuation of the Criminal prosecution before the Court is nothing but abuse of process of law. Therefore, I do not find any strong reason to refuse the remedy as sought for.
Accordingly, the petition is allowed. The proceedings in CC No.2433/2013 on the file of the I Addl. CMM, Bangalore against the petitioners for the offence punishable under Section 341, 504, 506 of IPC are hereby quashed.
SD/-
JUDGE PL