Karnataka High Court
Sri.K.B. Shiva Kumar vs State on 20 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.5987/2015
BETWEEN:
Sri.K.B.Shiva Kumar,
S/o Late Basavaraju,
Aged about 55 years,
R/o No.15, Sai Shree,
AGS Layout, New BEL Road,
Bengaluru - 560 054.
...Petitioner
(By Sri.Ashok Haranahalli, Senior counsel
a/w Sri.Bharath Kumar V., Advocate)
AND:
1. State through Station House Officer,
High Grounds Police Station,
Bengaluru, Represented by:
The State Public Prosecutor,
The Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
2. Sri. Phaniraj Kashyap,
S/o Justice K.Shreedhar Rao,
Aged about 27 years,
R/o No.29, Seven Ministers Quarters,
Sankey Road, Bengaluru - 560 001.
...Respondents
(By Sri.Vijayakumar Majage, Additional SPP for R-1;
Sri.Ravi B. Naik, Senior counsel a/w
Sri.Chandrashekar P., Advocate for R-2)
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This criminal petition is filed under section 482 of
Cr.P.C. praying to quash the FIR and information bearing
No.219/2013, dated 29.07.2013, registered with the
respondent No.1 police, wherein the petitioner herein has
been arraigned as accused No.1 for alleged offences under
Sections 389, 469, 506, 120-B, 193, 420 R/W Section 511, 34
of IPC (Annexed vide "Annexure-A and A-1") and etc.
This criminal petition coming on for Hearing this day,
the court made the following:-
ORDER
This is the petition filed by the petitioner/accused No.1 under Section 482 of Cr.P.C. praying this Court to quash the FIR and Information bearing No.219/2013 dated 29.07.2013 registered with respondent No.1 - police, wherein the petitioner herein has arraigned as accused No.1 for alleged offences under Sections 389, 469, 506, 120-B, 193 and 420 read with Sections 511 and 34 of IPC and also for quashing the final report filed by the respondent No.1 - police in the said matter bearing Crime No.219/2013 currently renumbered as C.C.No.20735/2013, pending on the file of Hon'ble VIII Addl. Chief Metropolitan Magistrate at Bengaluru, wherein, the petitioner herein has been arraigned as 3 accused No.1 for alleged offences under Sections 389, 469, 506, 120-B, 193 and 420 read with Sections 511 and 34 of IPC and also to quash the entire proceedings in the matter bearing Crime No.219/2013, currently renumbered as C.C.No.20735/2013, pending on the file of the Hon'ble VIII Addl. Chief Metropolitan Magistrate at Bengaluru.
2. Brief facts of the case as pleaded by the petitioner in the petition is that, in the year 1946, it seems that the land in Old Sy.No.7 / New Sy.No.49, situated at B.K.Palya Village, Jala Hobli, Bengaluru North Taluk, admeasuring 6 acres was granted in favour of one Sri.Muniswamappa @ Sadu Muniswamappa vide Grant Order dated 08.02.1946. Such grant of Land was made as the said Sri.Muniswamappa was a member of the Schedule Caste/Schedule Tribe. It further seems that the aforementioned extent of land measuring six acres came to be alienated by Sri.Muniswamappa to 4 certain individuals in accordance with the manner furnished on page No.15 of the petition.
3. It is further pleaded that schedule land measuring 6 acres was in the possession of three groups i.e., 3 acres in the hands of L.R.'s of Thimmaiah, 2 acres in the hands of respondent No.2 herein and 1 acre in the hand of Chikka Muniswamappa. The legal representatives of the original Grantee i.e., accused No.4
- Sri.Shiva Kumar, S/o Muniswamayya had filed a suit bearing O.S.No.1010/2007 before the jurisdictional Civil Judge, against members of his family seeking partition and separate possession of the said land in Sy.No.49/2, totally measuring 6 acres, on the ground that the same was the ancestral property of the said Sri.Shiva Kumar, S/o Muniswamayya.
4. Subsequently, the said suit bearing O.S.No.1010/2007 came to be withdrawn and the 5 petition before the Assistant Commissioner, Bengaluru North Sub-Division, came to be filed by the legal representatives of the original Grantee i.e., accused Nos.4 to 6 under Section 5 of the Karnataka (Prohibition of Transfer of Certain Lands) Schedule Caste and Schedule Tribe Act (hereinafter referred to as 'PTCL Act') and the same came to be numbered as Case No.K.SC.ST.17/2012-2013; on the ground that, the petition schedule land i.e., in all 6 acres in Sy.No.49 of B.K.Palya Village, Jala Hobli, Bengaluru North Taluk, was a subject matter of grant to the father of Sri.Shiva Kumar in the year 1946 and it was further contended that as the same is the grant made for the benefit of the members of the Schedule Caste and Schedule Tribe, the subsequent sale of land to various individuals were barred under Section 4 of the PTCL Act. Hence, prayed to restore the said lands i.e., in all 6 acres in Sy.No.49 to the family of said Sri.Shiva Kumar, S/o Muniswamayya. 6
5. The matter came to be decided by the learned Assistant Commissioner, Bengaluru, North Sub-Division vide order dated 05.07.2013, was pleased to dismiss the said petition. During the pendency of the said proceedings in the said case before the learned Assistant Commissioner, Bengaluru North Sub-Division, the schedule lands were acquired by Karnataka Industrial Areas Development Boards and a consent award of Rs.64,00,000/- was proposed to be awarded per acre.
6. Subsequently, legal representatives of the original grantee i.e., accused Nos.4 to 6 were aggrieved by the order dated 05.07.2013, passed by the learned Assistant Commissioner, Bengaluru North Sub-Division and assailed the said order in an appeal dated 10.07.2013 bearing S.C./S.T. Appeal No.29/2013-2014 before the learned Deputy Commissioner, Bengaluru Urban District. At such time, learned Deputy Commissioner, Bengaluru Urban District taking into 7 consideration of the appeal and the interim prayer, was pleased to stay the order dated 05.07.2013 passed by the learned Assistant Commissioner, Bengaluru North Sub- Division by vide order dated 10.07.2013.
7. Subsequently, the learned Deputy Commissioner, Bengaluru Urban District had physically scratched out the said order "Stayed, Issue Notice" and over-wrote "Issue Notice to hear, whether to give stay". Being aggrieved by such arbitrary and illegal actions of the learned Deputy Commissioner, Bengaluru Urban District, the legal representatives of the original Grantee i.e., accused Nos.4 to 6, approached the petitioner herein to challenge such arbitrary and illegal actions of the learned Deputy Commissioner, Bengaluru Urban District in changing the order, by means of a writ petition under Articles 226 and 227 of the Constitution of India, before this Hon'ble Court.
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8. Subsequently, the petitioner herein having obtained instructions from the legal representatives of the original Grantee i.e., accused Nos.4 to 6, prepared a petition assailing the action dated 10.07.2013 of learned Deputy Commissioner, Bengaluru Urban District and the same was proposed to be filed by accused No.2 i.e., Feroz Khan - a registered Legal Assistant with this Hon'ble High Court.
9. It was at this stage, 2nd respondent herein had invited the petitioner herein to hold talks of negotiation and had invited the petitioner to his office situated within the jurisdiction of respondent No.1 - police station. Petitioner in furtherance to such invitation had visited the office of the respondent No.2 herein on 29.07.2013 to hold negotiation talks and thereafter, on failure of such negotiation, the petitioner herein returned to his office and instructed accused No.2 to file the said proposed writ petition which had been drafted.
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10. Subsequently respondent No.2 herein filed a complaint before the police making the allegations about the commission of the said offences. The FIR came to be registered for the offences punishable under Sections 389, 469, 506, 120B, 193 and 420 read with Sections 511 and 34 of IPC against accused persons.
11. The police investigated the matter and filed the charge sheet for the said offences under Sections 389, 469, 506, 120B, 193 and 420 read with Sections 511 and 34 of IPC. The FIR as well as the charge sheet has been challenged by the petitioner on the grounds mentioned in the petition.
12. Heard the arguments of Sri. Ashok Haranahalli, learned senior counsel appearing for the petitioner/accused No.1 and also heard Sri.Ravi B. Naik, learned senior counsel for respondent No.2 - 10 complainant and the Additional SPP for respondent No.1
- State.
13. Learned counsel for the petitioner made the submission that when the petitioner was invited to the office by the complainant himself for the settlement talks and as the settlement failed, he advised his client accused No.2 to file the petition. Therefore, it is the contention of the learned counsel that he has given the legal advise to accused No.2 to file the petition before the Court. Therefore, the alleged offences will not be attracted.
14. It is also his submission that if accused No.2 has made any such averments in the petition, it is accused No.2 who is responsible for the allegations and the alleged offences that petitioner being an advocate just by giving legal advise cannot be sought that he has committed any offences.
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15. In this connection, learned counsel relied upon the decision of Hon'ble Apex Court reported in (2012) 9 Supreme Court Cases 512. Hence, he made the submission that the complaint itself is filed with mala fide intention and there is no prima facie case. The police without making proper investigation in the matter has filed charge sheet. Hence, he prays to allow the petition and quash the criminal proceedings including the charge sheet.
16. Per contra, Sri.Ravi B. Naik, learned senior counsel opposing the petition made the submission that looking to the further statement of the complainant, it clearly goes to show that when the petitioner alongwith another advocate and clerk came to the office of the complainant and when the matter was not settled, they threatened the complainant that they are going to ruin the status of the complainant and his father by filing the complaint before the Court. It is also his statement that 12 they have threatened him for the compromise otherwise, he has to face the consequences. Learned senior counsel also made the submission that there are recorded conversations held between one of the accused person and the petitioner, the copy of which is also produced before the Court. Therefore, it is the submission that when they came to the office and gave threat for entering into the compromise, if not, he is going to ruin the reputation of the complainant's father by making allegations in the petition. Learned senior counsel made the submission that this will not come in the purview of the learned counsel for the accused persons to give advise. Hence, he draw the attention of the Court to relevant portions and made the submission that this is the matter to be considered during the course of trial before the trial court and hence submits that there is no merit in the case and the same is to be rejected.
17. Learned Additional SPP for respondent No.1 - State also made the submission that investigation has 13 been conducted and police have already filed charge sheet. There is a material for filing the charge sheet for the alleged offences against the petitioner and other accused persons. Hence, he submitted that in the factual matrix there is cogent and relevant material against the accused and therefore, he submitted for rejecting the petition.
18. I have perused the grounds urged in the petition, FIR, complaint, further statement of the complainant and other charge sheet materials produced in the case. The controversy between the petitioner and respondent No.2 is that, when the petitioner and other accused persons came to his office for the purpose of negotiation and when the negotiation talks failed, they posed threat to the complainant that he has to enter into compromise and he has to state before the Assistant Commissioner, Bengaluru to remand the matter and they will get and manage to get favourable orders in their 14 favour or otherwise, complainant and his father have to face consequences that they will file writ petition by making false and frivolous allegations against him and his father and they are going to ruin the reputation of his father. I have gone through the decision relied upon by the learned counsel for the petitioner. The principle in the said decision cannot be disputed by anybody but the question is looking to the averments made in the compliant and further statement the complainant has made serious allegations as against the petitioner that by giving threat to complainant, ruining the reputation of the father of the complainant, who was the sitting Judge of this Court, in the factual matrix which have been disputed by both sides is to be ascertained during the course of trial.
19. So far as the legal profession is concerned, advocates duty is to give legal advise to their clients for filing case before the Court, if any. But here looking to 15 the allegations in the complaint and further statement, it is not only given advise to the client - accused No.2 to file petition but there are serious allegations made in the said complaint as well as in the further statement. Therefore, these disputed factual aspect cannot be decided by the Court in the petition filed under Section 482 of Cr.P.C. before this Court. Apart from that, investigation has been carried out by the police and the charge sheet has been filed. Looking to the entire materials, it cannot be said that the petition is filed with a malafide intention so also it cannot be said that there is no prima facie case made out by the complainant. There is a prima facie case for the alleged offences. Therefore, it is not a case to invoke Section 482 of Cr.P.C. for quashing the proceedings. Hence, I do not find any merit in the case. Therefore, it is hereby rejected.
Sd/-
JUDGE MH/-