Karnataka High Court
Sri Ramachandra Reddy S/O Muthappa ... vs Station House Officer on 11 March, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.453/2010
C/w
CRIMINAL PETITION NO.1334/2011
IN CRL.P.No.453/2010:
BETWEEN
1. SRI RAMACHANDRA REDDY
S/O MUTHAPPA REDDY
AGED ABOUT 35 YEARS
NO.5, RAGHAVENDRA SWAMY TEMPLE ROAD
BDA LAYOUT, 1ST LEFT CROSS,HULIMAVU,
BANNERGHATTA ROAD,
BANGALORE-560076
2. SRI. UMESH REDDY
S/O MUTHAPPA REDDY
AGED ABOUT 35 YEARS
NO.5, RAGHAVENDRA SWAMY TEMPLE ROAD
BDA LAYOUT, 1ST LEFT CROSS, HULIMAVU
BANNERGHATTA ROAD,
BANGALORE-560076. ... PETITIONERS
(BY SRI C.V.SUDHINDRA, ADV.)
AND:
1. STATION HOUSE OFFICER
HULIMAVU POLICE STATION, HULIMAVU
BANGALORE
2. H.K. RAMASWAMY REDDY S/O KEMPANNA
AGED ABOUT 58 YEARS
R/AT NO. 156/10,
2
KEMPAMMA DEVI EXTENSION
HULIMAVU, BANGALORE-560076. ... RESPONDENTS
(BY SRI VIJAY KUMAR MAJAGE, HCGP FOR R1;
SRI K. SUMAN, ADV. FOR R2)
IN CRIMINAL PETITION NO.1334/2011:
BETWEEN
1. SRI RAMACHANDRA REDDY
S/O MUTHAPPA REDDY
AGED ABOUT 35 YEARS
NO.5, RAGHAVENDRA SWAMY TEMPLE ROAD
BDA LAYOUT, 1ST LEFT CROSS,HULIMAVU,
BANNERGHATTA ROAD,
BANGALORE-560076
2. SRI. UMESH REDDY
S/O MUTHAPPA REDDY
AGED ABOUT 35 YEARS
NO.5, RAGHAVENDRA SWAMY TEMPLE ROAD
BDA LAYOUT, 1ST LEFT CROSS, HULIMAVU
BANNERGHATTA ROAD,
BANGALORE-560076. ... PETITIONERS
(BY SRI C.V.SUDHINDRA, ADV.)
AND
1. STATION HOUSE OFFICER
HULIMAVU POLICE STATION, HULIMAVU
BANGALORE
2. H.K. VENKATASWAMY S/O KEMPANNA
AGED ABOUT 55 YEARS
R/AT NO.77, 3RD MAIN ROAD,
BTM II STAGE, N.S.PALYA,
BANGALORE-76 ... RESPONDENTS
(BY SRI VIJAY KUMAR MAJAGE, HCGP FOR R1;
SRI K. SUMAN, ADV. FOR R2)
3
CRL.P.No.453/2010 IS FILED UNDER SECTION 482
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
IN CRIME NO.233/09 ON THE FILE OF THE HULIMAVU
P.S., BANGALORE AND ETC.
CRL.P.No.1334/2011 IS FILED UNDER SECTION 482
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS
IN C.C.NO.44405/10 ON THE FILE OF THE V ADDL.C.M.M.,
BANGALORE AND ETC.
THESE CRL.PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
To quash entire proceedings of Crime No.233/2009, on the file of Hulimavu Police Station, Bengaluru, and ultimately leading to registration of C.C.No.44407/2010, by the Chief Metropolitan Magistrate, Bengaluru, Crl.P.453/2010 was filed. To quash the entire proceedings in C.C. No.44405/2010 (arising out of Cr.No.229/2009) on the file of the V addl. Chief Metropolitan Magistrate, Bengaluru, Crl.P.1334/2011 was filed under S.482 of the Cr.P.C. Criminal Petition No.452/2010 filed by the petitioners to quash the registration of Case in Cr.No.229/2009 for the same offences was dismissed on 26.07.2010, on the ground that the matter needs 4 investigation. The petitioners have been charge-sheeted for the offences under S. 447 read with S.34 of IPC and Ss. 3, 4 and 5 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 (for short, 'the Act').
2. In the instant cases, after registration of Crime Nos.229/2009 & 233/2009, investigation being complete and final report/s having been submitted, cognizance was taken and C.C.Nos.44405/2010 & 44407/2010 were registered against the petitioners, for the offences, mentioned supra.
3. Petitioners and their sister, Smt.Savitha, have filed O.S.No.5600/2009 in the City Civil Court, Bengaluru against the respondent No.2 and other family members, to pass a decree of partition and separate possession in respect of the properties shown in the plaint schedule. The suit has been contested by filing written statement. After filing of the said suit, on the complaint/s lodged by respondent No.2, cases in Crime Nos.229/2009 & 5 233/2009 for the offences mentioned supra were registered.
4. Sri C.V.Sudhindra, learned advocate, contended that aims and objects of the Act does not prevent a co-owner from notifying the general public of a fact, to protect his interest in the property and that the interest of respondent No.2 was not affected by writing of suit number on the wall of an item of property which is the subject matter of the suit. He submitted that criminal prosecution was launched against the petitioners, at the behest of a brother of respondent No.2, a powerful senior police officer, to make the petitioners succumb to their dictation and to give up their legitimate claim for allotment of lawful share claimed in O.S.No.5600/2009. He submitted that in the given set of facts, there being no criminal offence, instead of seeking remedy, if any, in the pending suit, by misuse of the position of the brother of respondent No.2 working in the Police Department, the impugned proceedings were initiated and the petitioners are being harassed.
6
5. Sri Vijaykumar Majage, learned HCGP and Sri K.Suman, learned advocate for respondent No.2, on the other hand, contended that the investigation having shown commission of criminal offences, cognizance was taken by the learned Magistrate. They submitted that the petitioners should face trial and thus, at this stage, are not entitled to the relief sought.
6. Considered the rival contentions and perused the materials on record.
7. After O.S.No.5600/2009 was instituted, a writing to the following effect was made on the wall of an item of the suit schedule property:
"¸ÀªÉð £ÀA.5/1(1J 7UÀÄA) ¸ÀévÀÄÛ gÁªÀÄZÀAzÀæ ªÀÄvÀÄÛ ¸ÀºÉÇöÃzÀgÀjUÉ ¸ÉÃjözÀÄÝ, EzÀgÀ §UÉÎ ¹n ¹«¯ï £ÁåAiÀiÁ®AiÀÄzÀ°è PÉøÀÄ £ÀqÉAiÀÄÄwÛzÉ. O.S.No.5600/09"
8. With reference to the above, complaints having been submitted, Crime Nos.229/2009 & 233/2009 were registered for the offences mentioned supra and after 7 investigation, charge-sheet/s were submitted to the jurisdictional Magistrate.
9. Proceedings of a criminal Court can be quashed, when the complaint does not disclose any offence or is frivolous. Power under S. 482 of Cr. P.C. can be exercised where it appears that the process of law is being abused or misused. It is appropriate to notice the principles laid down by the Apex Court, in NAGAWWA Vs. VEERANNA SHIVALINGAPPA KONJALGI AND OTHERS, 1976(3) SCC 736:
" 5. Mr. Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercise his discretion it is not for the High Court, or even this Court, to substitute its own 8 discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
9
10. The writing, extracted in para 7 supra, has been made on an item of a property, which is the subject matter of consideration in O.S.No.5600/2009. The claim of the petitioners/plaintiffs to a separate share in the suit schedule properties is still pending adjudication. The plaintiffs and defendant No.4 in the said suit are the children of one Muttappa Reddy and grand children of late Ramaswamy Reddy and Smt.Muniyamma. Said Ramaswamy Reddy and Muniyamma had four sons i.e., Kempanna Reddy, Subba Reddy, arrayed as defendant Nos.1 and 2 respectively. Third son, Shamanna Reddy, having expired, his wife and children have been arrayed as defendant Nos.3, 3(a) and 3(b) respectively. Fourth son, Muttappa Reddy, father of the petitioners/plaintiffs has been arrayed as defendant No.4. The genealogical tree of the family, produced as Annexure-A along with the plaint, has not been disputed in the written statement filed by the defendant No.1.
10
11. In view of the said relationship between the parties and pendency of suit for partition and separate possession, the question which arises in this petition is:
Whether there was an intent to annoy respondent No.2?
12. In MATHURI Vs. STATE OF PUNJAB, 1964 (5) SCR 916, it has been held as follows:-
" The correct position in law may, in our opinion, be stated thus:
In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
13. Now, the question for consideration is, whether the intention of the petitioners was to annoy the respondent No.2 or not, within the meaning of S.447 of 11 IPC. On the facts noticed supra, the property on which the said writing was made, being the subject matter of a suit for partition and separate possession between the parties, the intention to annoy the respondent No.2 is missing in the complaint dated 17.10.2009. There being a civil litigation in respect of the property, over which the aforesaid writing was made, there is no intention to commit trespass.
14. In law, the possession of one co-owner can be construed as possession of all co-owners. Ouster, if any, should be pleaded and proved. Whether the claim of the petitioners, put forth in O.S.No.5600/2009, has any merit or not, is a matter which should be decided by the court, wherein, the suit is pending.
15. The statement of objects and reasons of the Act, makes it clear that in order to undo the mischief of disfigurement by slogans written and posters pasted indiscriminately on the walls of a public or private building/s, the Act was enacted. S.3 provides for levy of 12 penalty for unauthorized disfigurement by advertisements. Proviso thereunder, carves out the exceptions in respect of the advertisements, as listed therein. Clause (iii) makes it clear, that S.3 has no application to any advertisement as defined in S.2(a) of the Act, which relates to the name of the land or building upon which the advertisement is exhibited or name of the owner or occupier of such land or building.
16. The writing made, extracted above, on an item of the property, which is the subject matter of consideration in O.S.No.5600/2009 falls within the exception carved out in clause (iii) of the proviso under S.3 of the Act.
17. Looking to the allegations made in the complaint/s and also the materials collected during investigation, the ingredients of S. 447 of IPC and Ss. 3, 4 and 5 of the Act are missing. Mere aforesaid writing, does not show the intention of annoying respondent No.2 or causing disfigurement of the property. 13
18. In view of the pendency of the suit for partition between the parties, to meet the ends of justice and to prevent abuse of process, impugned proceedings are liable to be quashed.
In the result, petitions are allowed and the entire proceedings in C.C.Nos.44407/2010 and 44405/2010 on the file of Chief Metropolitan Magistrate, Bengaluru, and the V Addl.Chief Metropolitan Magistrate, Bengaluru, respectively, are quashed. However, it is made clear that this order would not confer any right on the petitioners nor in any way affect the rights of the defendants in O.S.No.5600/2009 pending on the file of City Civil Court, Benglauru. The suit shall be decided in accordance with law, uninfluenced by any of the observations made in this order.
Sd/-
JUDGE sac*