Karnataka High Court
Syed Mohsin vs State Of Karnataka on 28 November, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.698 OF 2022
BETWEEN
1 . SYED MOHSIN
S/O LATE SYED GOUSE,
AGE ABOUT 46 YEARS,
R/AT KHADARI MOHALLA
SIRA TOWN, TUMKUR DISTRICT
KARNATAKA - 572 137
2 . SYED MUBHASIR
S/O LATE SYED GOUSE,
AGE ABOUT 42 YEARS,
R/AT KHADARI MOHALLA
SIRA TOWN, TUMKUR DISTRICT
KARNATAKA 572137
... PETITIONERS
(BY SRI NISHAD S.A., ADVOCATE)
AND
1 . STATE OF KARNATAKA
BY SIRA POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BANGALORE 560001
CHANDRA PASHA
(PASSED AWAY ON 25-12-2021)
2
2 . IRSHAD PASHA
S/O LATE CHAND PASHA,
AGED ABOUT 38 YEARS,
RESIDENT OF ASSAR MOHALLA
SIRA TOWN,
TUMKUR DISTRICT
KARNATAKA - 572137
3 . ASLAM PASHA
S/O LATE CHAND PASHA,
AGED ABOUT 30 YEARS,
RESIDENT OF ASSAR MOHALLA
SIRA TOWN,
TUMKUR DISTRICT
KARNATAKA 572137
... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1
SRI.FAYAZ SAB B.G., FOR R2 AND R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE FIR INITIATED IN CR.NO.267/2021 FILED BY THE
RESPONDENT NO.1 AGAINST THE PETITIONERS UNDER
SECTIONS 143,146,147,447,427,324,506 AND SECTION 149 OF
IPC ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
(SENIOR DIVISION) AND CJM COURT, SIRA, TUMAKUR
DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by petitioners/accused Nos.1 and 2 under Section 482 of Cr.P.C for quashing the FIR in Crime No.267/2021 filed for the offence punishable under Section 143, 146, 147, 447, 427, 324, 506 and Section 3 149 of IPC, pending on the file of the Principal Senior Civil Judge and CJM Court, Sira, Tumakur District.
2. Heard learned counsel for petitioners and learned HCGP for respondent No.1 and learned counsel for respondent Nos.2 and 3.
3. The case of prosecution is that respondent No.2 said to have filed complaint to police on 13.10.2021 alleging that he is in possession of house and godown and the petitioner said to have threatened the respondents for dire consequences. On that background on 13.10.2021 at 2.00 a.m. in the early morning the accused persons came in two JCB vehicles in 3 to 4 cars, around 20 to 25 persons and they demolished the godown and the house and said to be have taken possession of 15 to 20 feet. After registering the case for the offence punishable under Section 143, 146, 147, 447, 427, 324, 506 and Section 149 of IPC the police subsequently obtained permission of the Magistrate for investigating the matter for the offence 4 punishable under Section 395 of IPC. Aggrieved by the same, the petitioner is before this court.
4. The learned counsel for the petitioner contended the petitioner is the owner of the property and they have already filed application for demolishing the old building and constructing the new building which is a corner building. The petitioner already filed two complaints to the police. The police have registered only NCR case and they have not registered FIR against the complainant. The complainant said to be a former counselor and learned counsel for petitioner submits he also filed writ petition before for granting the permission to demolition the building which is pending. The respondent also filed complaint. Absolutely there is no evidence to attract the ingredient under section 395 of IPC for committing dacoity, therefore conducting investigation is abuse of process of law, hence prayed for quashing the criminal proceedings.
5. Per contra learned HCGP objected this petition and submits that the petitioners are not the owner of the 5 property and the respondent is the owner of the property. The petitioners have illegally demolished the building and looted Rs.32,250/- which attracts the offence under Section 395 of IPC. Hence prayed for dismissing the petition and permit the police to investigation the matter
6. Having heard the argument and perusal of record, which reveals ofcourse the petitioner already filed a complaint in the police seeking for removal of the encroachment alleged to have been committed by the respondent No.2. The complaint was filed on 05.01.2021 and thereafter another complaint on 27.07.2021, but the respondent No.2 alleging that there was dispute between accused and complainant prior to the incident and on that background on 13.10.2021 the petitioner came with men and material at mid night 2.30 a.m. in JCB and demolished the portion of building. and also looted Rs.23250. Ofcourse the intention of the petitioner may not be for committing dacoity and Section 395 of IPC may also not attract, however the fact remains the petitioner claimed the right over the property and demolished the property 6 where the respondent was in possession at the time of demolition. It is well settled position of law that even a trespasser cannot be thrown out without due process of law, if at all the petitioner is the owner and claims his ownership he should have approached the court seeking recourse or remedy on his behalf. Even otherwise, if he has filed any application for seeking demolition that application was not disposed of by the Municipal corporation and it is still said to be pending. Such being the case, going to the place of occurrence at 2.30 am along with two JCBs, with men and material and demolishing the building, it appears the petitioner took the law into his own hands and demolished the building. The petitioner may be the owner, but he has no right to demolish even the trespasser in mid night by using the JCB, men and material. Whether Section 395 of IPC is ingredient is made out or not, has to be considered by police while investigating the matter and filing final report. The Investigating Officer considered the previous litigation between them for claiming the ownership between the 7 petitioners and respondents for the same property. Whether the ownership has been decided by Civil Court or not, all that has to be investigated. This court cannot go into the investigation of the FIR and to say there is no offence committed and some other offence is committed, the police is having power to investigate the matter and file the final report. The police may even delete section 395 of IPC. Therefore, now itself this court cannot make any observation and influence the mind of the Investigating Officer what sections are attracted or not attracted which may prejudice the case of the parties.
Considering the same, I am of the view, the petitioner is not entitled for quashing the FIR.
Accordingly the petition is dismissed.
Sd/-
JUDGE AKV