Karnataka High Court
Nagavva W/O Shrishail Addi vs Saiyadhaseen S/O. Ismayilsab ... on 20 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO. 101231/2015
a/w CRIMINAL PETITION NO.101200/2015
IN CRL.P. No.101231/2015
BETWEEN:
1. SMT. NAGAVVA
W/O SHRISHAIL ADDI,
AGE: 45 YEARS,
OCC:HOUSE MAKER, R/O BILAGI
BAGALKOT DIST.
2. NIKHIL, S/O SHRISHAIL ADDI,
AGE 18 YEARS, OCC: LABOUR
R/O BILAGI, BAGALKOT DIST.
... PETITIONERS
(BY SRI. BASAVARAJ S. BYAKOD, ADV.)
AND:
SAIYADHASEEN
S/O ISMAYILSAB BHAYISARAKAR,
AGE 55 YEARS, Occ: BUSINESS
R/O BILAGI, BAGALKOT DIST.
.. RESPONDENT
(BY SRI. SRIKANT T. PATIL, ADV.)
Crl.P. No.101231/2015
2 a/w crl.p. No.101200/2015
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING THIS HON'BLE COURT TO ALLOW
THIS PETITION AND QUASH THE COMPLAINT IN
C.C.NO.204/2015 (PC NO.25/2015) PRESENTED BY THE
RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 143, 147, 341, 383, 427, 447, 448, 500,
504 AD 506 READ WITH SECTION 149 OF THE INDIAN
PENAL CODE AND THE ORDER PASSED BY THE LEARNED
CIVIL JUDGE AND JMFC, BILAGI IN C.C. NO.204/2015
DATED 24.6.2015 TAKING COGNIZANCE OF THE ALLEGED
OFFENCE AND THE ORDER ISSUING PROCESS AGAINST THE
PETITIONER IN THE INTEREST OF JUSTICE.
IN CRL.P. No.101200/2015
BETWEEN:
SADASHIV
S/O HUSANAPPA CHALAWADI,
AGE 35 YEARS,
OCC: EMPLOYEE IN TOWN PANCHAYATH,
R/O BILAGI, BAGALKOT DIST.
... PETITIONER
(BY SRI. J.BASAVARAJ.ADV.)
AND:
SAIYADHASEEN
S/O ISMAYILSAB BHAYISARAKAR,
AGE 55 YEARS, Occ: BUSINESS
R/O BILAGI, BAGALKOT DIST.
.. RESPONDENT
(BY SRI. SRIKANT T. PATIL, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING THIS HON'BLE COURT TO ALLOW
THIS PETITION AND QUASH THE COMPLAINT IN
Crl.P. No.101231/2015
3 a/w crl.p. No.101200/2015
C.C.NO.204/2015 (PC NO.25/2015) PRESENTED BY THE
RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 143, 147, 341, 383, 427, 447, 448, 500,
504 AD 506 READ WITH SECTION 149 OF THE INDIAN
PENAL CODE AND THE ORDER PASSED BY THE LEARNED
CIVIL JUDGE AND JMFC, BILAGI IN C.C. NO.204/2015
DATED 24.6.2015 TAKING COGNIZANCE OF THE ALLEGED
OFFENCE AND THE ORDER ISSUING PROCESS AGAINST THE
PETITIONER IN THE INTEREST OF JUSTICE.
THESE CRIMINAL PETITIONS COMING ON FOR
HEARING THROUGH PHYSICAL HEARNG/VIDEO
CONFERENCING HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The respondent in both these petitions has instituted a private complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.') against the present petitioners in the Court of the learned Civil Judge and JMFC, Bilagi (hereinafter for brevity referred to as 'Trial Court') in P.C. No.25/2015 alleging the offence punishable under Sections 143, 147, 341, 383, 427, 447, 448, 500, 504 and 506 read with Section 149 of Crl.P. No.101231/2015 4 a/w crl.p. No.101200/2015 the Indian Penal Code (hereinafter for brevity referred to as 'IPC').
2. The petitioners in Criminal Petition No.101231/2015 are accused Nos.2 and 3 and the petitioner in Criminal Petition No.101200/2015 is accused No.1 in the said private complaint.
3. The summary of the said private complaint is that the complainant (respondent herein) has been running business in hardware articles in property No.722/1248 in Ward No.2 in the Main Bazaar within the limits of Town Municipal Council of Bilagi, Bagalkot district. He had taken the possession of the said shop premises by one late Gurappa son of Siddappa Addi, who died on 01.08.2001. Without any objection from the legal representatives of the deceased Gurappa, the complainant is said to have continued in the possession of the shop premises and running his business. That being the case, on 23.05.2015, at about 11'O clock in Crl.P. No.101231/2015 5 a/w crl.p. No.101200/2015 the morning, the staff of Town panchayat, Bilagi, the daughter-in-law of deceased Gurappa by name Nagavva and her son Nikhil (the petitioners/accused Nos.2 and 3 in Crl.P. No.101231/2015) and one of the employee of the Town Panchayat, Bilagi, by name Sadashiva Husanappa Chalawadi (the petitioner/accused No.1 in Crl.P. No.101200/2015) came to the shop of the complainant along with an earth mover. The accused, in collusion with each other and without any authority or sanction under law, demolished the shop of the complainant and also looted and took away with them along with debris the stock in-trade worth several lakhs of rupees. The complainant has further alleged that in the guise of widening of the road, the accused have committed the alleged act and the demolition of the shop was not at all part of the official duty of Town Panchayat, Bilagi.
Crl.P. No.101231/20156 a/w crl.p. No.101200/2015
4. After recording the sworn statement of the complainant and also recording the evidence of one more witness as CW-2, the trial Court has taken cognizance of the alleged offence and ordered for issuance of summons to the accused. Thus, the case was numbered as C.C. No.204/2015. It is seeking quashing of the entire Criminal Case No.204/2015, the petitioners have filed the present petitions under Section 482 of Cr.P.C.
5. Learned counsel for the petitioners in Criminal Petition No.101231/2015 is appearing physically in the Court. Learned counsel for the petitioner in Crl.P. No.101200/2015 is appearing through video conference. Learned counsel for the respondent is neither physically present in the Court nor through video conference.
Crl.P. No.101231/20157 a/w crl.p. No.101200/2015
6. Heard arguments of the learned counsel for the petitioners in both the matters. Perused the material placed before this Court.
7. The argument of the learned counsel for the petitioner in Crl.P.No.101231/2015 is that the alleged averment made in the complaint, even, if it is taken on its face value, still, it shows that it is a dispute which is purely civil in nature. As such, if at all, the complainant is aggrieved by any such alleged act, the remedy for him is to claim damages in a competent civil Court but not to institute a criminal case. He also submits that from the date of the alleged incident till the date of filing of the private complaint, there is a delay of nearly 17 days, which has also not been properly explained. He submits, it is only to harass the petitioners, a false complaint has been foisted against them by the complainant.
Crl.P. No.101231/20158 a/w crl.p. No.101200/2015
8. Learned counsel for the petitioner in Crl.P.No.101200/2015 in his argument submitted that, even according to the complainant, the petitioner(accused No.1) is an employee of the Town Panchayat, Bilagi, as such, a public servant. Admittedly, there is no sanction obtained by the complainant to lodge a complaint against a public servant. As such, the complaint deserves to be set aside. In his support, he relies upon a judgment of the Hon'ble Apex Court in D.Devaraja -vs.- Owais Sabeer Hussain in Criminal Appeal No.458/2020 disposed of on 18.06.2020. He further submits that a reading of the complaint would go to show that apart from the petitioner herein, several other employees of Town Panchayat, Bilagi, were also said to be present in the spot and therefore, the act of the complainant in confining the complaint only to the present petitioner also shows that it is a false complaint. Learned counsel while drawing attention of the Court to Crl.P. No.101231/2015 9 a/w crl.p. No.101200/2015 the alleged sworn statement submits that, admittedly, the complainant was not in the spot at the time of the alleged demolition. With this, he submits that the petition deserves to be allowed by quashing the criminal case against the petitioner.
9. A reading of the complaint would go to show that the complainant has alleged that, on the alleged date of the incident i.e. on 23.05.2015, his shop, said to be situated in Main Bazaar in Bilagi town, was demolished by using earth mover (Hitachi). He had specifically averred that the daughter-in-law of the deceased Gurappa and her son Nikhil joined by accused No.1-Sadashiv Husanappa Chalawadi, had demolished his shop. The complainant has specifically stated that father-in-law of said Nagavva (accused No.2) had given the possession of the shop to him about 30 years back and since then he has been running the shop peacefully. However, clandestinely, to take possession of the said Crl.P. No.101231/2015 10 a/w crl.p. No.101200/2015 property, the daughter-in-law of the original owner- Gurappa joined by her son and accused No.1, had demolished the shop.
The learned counsel for the petitioner making use of the statement of the complainant in the complaint that accused No.1-Sadashiv Husanappa Chalawadi, at the relevant point of time, was an employee in the Town Panchayat, Bilagi, submitted that since accused No.1, being a public servant, the complainant ought to have taken sanction from the competent authority before instituting the complaint. He relies upon a judgment of the Hon'ble Apex Court in D.Devaraja's case (supra). In the said case at paragraph Nos.69 and 72, the Hon'ble Apex Court was pleased to observe as below:
" 69. Every Offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The Crl.P. No.101231/2015 11 a/w crl.p. No.101200/2015 protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.
70. & 71. xxxxxxxx
72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority."
10. From the above extract of the judgment, it is clear that when a criminal prosecution is instituted against a public servant, for the acts done with respect to discharge of his official duty, even though, if some excess are there in discharging his official duty, then a sanction under Section 197 of Cr.P.C. is required.
11. In the instant case, the point that arises for consideration is:
Crl.P. No.101231/201512 a/w crl.p. No.101200/2015
Whether, from the complaint it could be made out that, prima facie, the alleged act of accused No.1 in the alleged demolition of the complainant's alleged property, was a part of the official duty though with some excess from the part of accused No.1?
12. As an answer to this question, very clearly, the complainant in his complaint categorically in paragraph No.4 has stated that the act committed by the accused was not part of their official duty. Thus, in the complaint itself, the complainant has sated that the alleged act of demolition is not a part of the official duty of accused No.1. The very same complainant also in his complaint has sated that when the Town Panchayat, Bilagi, commenced the work of widening of the road from Ambedkar Circle to Shivaji Circle, he had personally met the officials in the Panchayat, who assured him that nothing would happen to his building and that the alleged width of the road is outside the boundary of his shop premises. That means, the Crl.P. No.101231/2015 13 a/w crl.p. No.101200/2015 complainant in his compliant has also stated that he got confirmed that even the alleged act of the widening of the road would not reach the boundary of his shop and it cannot be beyond the boundaries of his shop. Even according to the complainant, apart from accused No.1, there were other officials of Town Panchayat also in the spot. But what has to be seen is the allegation of demolition is not made against any of those officials who were said to be present in the spot but is only against the present accused No.1. Had really the alleged act of demolition been actively included the acts of other officials of the said Panchayat, then, the complainant would have, necessarily, arraigned them also as accused in the case. Though the complainant in his complaint has referred to about the presence of other officials of the Town Panchayat, but has specifically complained and alleged that it was only accused No.1, who joined by accused Nos.2 and 3, proceeded to demolish his shop. Crl.P. No.101231/2015 14 a/w crl.p. No.101200/2015 Therefore, at this stage, prima facie, it appears that the complainant has shown that the alleged act of demolition was neither within the official duty of accused No.1 nor even, with little bit excess of his alleged duty, but the complainant in his complaint has prima facie shown that the alleged act of accused No.1 was totally out side the purview of his official duty.
13. To countenance the above observations, the petitioner(accused No.1) has not placed any material before the Court to show that there was any order by the Head of the Panchayat for the demolition of the shop alleged to be of the complainant or any such order to show that on the said particular date, road widening work was ordered and the said road widening activity also included the act of vacating or demolishing the premises of the complainant. In the absence of any such material, which the petitioner(accused No.1) easily could have placed before this Court, it cannot be Crl.P. No.101231/2015 15 a/w crl.p. No.101200/2015 inferred by a reading of the complaint that merely because accused No.1 is shown to be working in Town Panchayat, by that itself, his alleged criminal act falls under the discharging of his official duty. Therefore, the argument of the learned counsel for the petitioner/accused No.1 on the said point, is not acceptable so also the judgment relied upon by him would not in any way enure to his benefit.
14. A reading of the complaint would go to show that the complainant has specifically stated that in the process of demolition of the shop, apart from his entire shop being demolished, the entire stock in-trade were also looted by various people and in the guise of shifting the debris, the stock in-trade worth huge amount also was taken away by them. No doubt, the complainant has stated, as CW-1, in his sworn statement that he was not present when the alleged act of demolition was taken place. However, he has categorically stated that Crl.P. No.101231/2015 16 a/w crl.p. No.101200/2015 his son, i.e., CW-2, was present in the shop and he tried to request them not to proceed with the demolition and attempted to peacefully resist the same, but he was threatened by the accused and within no time, he too rushed to the spot to see the incident. Thus, the complainant has, prima facie, shown that there are materials to proceed further in the matter and accordingly, the sworn statement and evidence of CW-2 also supported the contents of the complaint.
15. Considering these aspects, the trial Court has taken cognizance of the offence and ordered for issuance of summons.
16. No doubt, in this criminal case, the complainant may not be entitled to seek damages of the alleged loss of his property and goods and he may have to approach civil Court but that itself would not be a bar to him from invoking the criminal jurisdiction for the Crl.P. No.101231/2015 17 a/w crl.p. No.101200/2015 alleged criminal offence said to have been committed by the accused (petitioners).
Accordingly, I proceed to pass the following order.
ORDER Both the petitions are dismissed.
Sd/-
JUDGE kmv