Karnataka High Court
Sri R Raghu vs The State Of Karnataka on 21 January, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2026:KHC:3309
CRL.P No. 4540 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4540 OF 2023
BETWEEN:
SRI. R.RAGHU
S/O LATE P.C.RAJANNA
AGED ABOUOT 43 YEARS
RESIDING AT NO. 191
VENKATAGIRIKOTE
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT - 562 110.
...PETITIONER
(BY SRI SUNIL KUMAR S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally BY THE KODIGEHALLI POLICE STATION
signed by
NAGAVENI REPRESENTED BY
Location: STATE PUBIC PROSECUTOR
High Court
of Karnataka HIGH COURT BUILDINGS
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. SMT. MALLIKA C.RAO
W/O LATE CHANDRAKANTH RAO
AGED ABOUT 54 YEARS
RESIDING AT 3A, 3RD FLOOR
MULTI CORNER APARTMENT
BASAVESHWARA LAYOUT
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NC: 2026:KHC:3309
CRL.P No. 4540 of 2023
HC-KAR
NAGASHETTY HALLI, RMV EXTENSION
2ND STAGE, BENGALURU - 560 094.
ALSO AT
RESIDING AT NO.261,
1ST MAIN, DOLLORS COLONY
RMV 2ND STAGE
BENGALURU - 560 057
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1;
SRI K.S.CHANDRAHASA, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE COMPLAINT DATED 23.02.2023 FOUND AT
ANNEXURE-B FILED BY THE RESPONDENT NO.2 BEFORE THE
RESPONDENT NO.1 FOR THE ALLEGED OFFENCES P/U/S 447
R/W 34 OF IPC.; QUASH THE FIR FILED BY KODIGEHALLI
POLICE STATION IN CR.NO.44/2023 FOUND AT ANNEXURE-A
FOR THE ALLEGED OFFENCE P/U/S 447 R/W 34 OF IPC
AGAINST THE PETITIONERS PENDING ON THE FILE OF VII
ADDL.C.M.M., BENGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
Petitioner - accused No.1 is calling in question registration of a crime in Crime No.44/2023, pending on the file of the VII Additional Chief Metropolitan Magistrate, Bengaluru, for offences punishable under Sections 447 r/w. 34 of the IPC.
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2. Heard Sri Sunil Kumar S., learned counsel for petitioner, Sri B.N.Jagadeesha, learned Additional State Public Prosecutor for respondent No.1 and Sri K.S.Chandrahasa, learned counsel for respondent No.2.
3. The facts adumbrated are as follows:
The petitioner is said to be an allottee from the hands of NTI Housing Co-operative Society Limited of a particular site, in site No.629. The petitioner claims to be in possession of the said property. Owing to certain disturbance at the hands of respondent No.2, the petitioner institutes a suit in O.S.No.4586/2012 seeking permanent injunction against respondent No.2 and NTI Housing C0operative Society Limited
- defendants therein. The suit comes to be dismissed. The dismissal of which is called in question by the petitioner -
plaintiff in R.F.A.No.1368/2021. A coordinate bench of this Court sets aside the judgment of dismissal of the suit seeking permanent injunction and remits the matter back to the concerned Court for consideration afresh in accordance with law, in terms of the judgment dated 09.12.2025. In the -4- NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR interregnum i.e., between the date of dismissal of the suit and the allowing of the appeal by the co-ordinate bench of this Court, emerges the said subject incident. On an incident that happens on 22.02.2023, a crime comes to be registered, three days later i.e., on 25.02.2023 for offences punishable under Sections 447 r/w. 34 of the IPC. The registration of the crime is what has driven the petitioner to this Court in the subject petition.
4. This Court, prima facie, owing to the fact that the petitioner was in possession of the property, grants an interim order of stay of further investigation in the matter on 08.06.2023. The matter is thus, heard.
5. Sri Sunil Kumar S., learned counsel appearing for the petitioner would take this Court through the documents appended to the petition to demonstrate that he is the lawful owner of a particular site i.e., site No.629, it having been allotted by the NTI Housing Co-operative Society Limited. He is in possession of the property. The suit was erroneously dismissed; the dismissal is now set aside by the co-ordinate bench and the matter is at large before the competent civil -5- NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR Court, yet again. He would submit that the petitioner cannot be hauled for offences under Section 447 of the IPC, which deals with criminal trespass, of his own property.
6. Per contra, learned counsel appearing for respondent No.2 complainant submits that the petitioner has lost the suit.
He has no valid documents to show that he is in possession of the property. The property belongs to the complainant.
Therefore, it is a matter of trial or investigation in the least that the police have to conduct for a criminal trespass.
7. Sri B.N.Jagadeesha, learned Additional State Public Prosecutor would toe the lines of the learned counsel appearing for respondent No.2 - complainant in contending that the investigation must be permitted in the case at hand.
8. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
9. The afore-narrated facts, dates and link in the chain of events are all a matter of record. The petitioner purchases the property from the hands of NTI Housing Co-operative Society, -6- NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR who are in possession of the layout. The sale deed is executed on 05.11.2011 in favour of the petitioner by the Society.
Copies of the sale deed and the possession certificate are also appended to the petition. All other contemporaneous documents, which would prima facie demonstrate that the petitioner is the owner of the property are also appended to the petition.
10. Respondent No.2 has a site, not inside the layout, but outside the layout. He claims to be an adjacent owner and his site bears site No.29. The disturbance emerges from respondent No.2, who does not reside inside the layout, but outside the layout. What is missing is 6 in the site number of the site belonging to respondent No.2. Therefore, the suit in O.S.No.4586/2012 seeking mandatory injunction is filed by the petitioner. The suit comes to be dismissed and the dismissal of the suit is challenged before the co-ordinate bench in R.F.A.No.1368/2021. The co-ordinate bench by the judgment dated 09.12.2025 allows the appeal and remits the matter back to the concerned civil Court. The judgment reads as follows:
-7-NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR ".... .... ....
6. A perusal of the material on record will indicate that in the present appeal, the appellant has filed an application I.A.2/2025 under Order 6 Rule 17 CPC seeking amendment of the plaint by incorporating the relief of declaration of title and consequential recovery of possession of the suit schedule property from the respondents - defendants together with corresponding pleadings in this regard. The said application has been opposed by the respondents.
7. The following points arise for consideration in the present appeal:
(i) Whether the application-I.A.2/2025 filed by the appellant deserves to be allowed?
(ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference in the present appeal?
Re-Point No.(i):-
8. A perusal of the material on record will indicate that as per the impugned judgment and decree, the suit of the appellant - plaintiff was dismissed. As stated supra, the suit of the plaintiff was one for bare injunction simpliciter without seeking declaration of title. By way of the proposed amendment as sought for in I.A.2/2025, by incorporating additional prayers for declaration and consequential relief of possession of the suit schedule property as well as corresponding pleadings in this regard. Though the said application is opposed by the respondents, a perusal of the proposed amendment will clearly indicate that the same is necessary and essential for effective and complete adjudication of the issues in controversy between the parties. So also, the proposed amendment cannot be said to be malafide in nature nor would it change or alter the nature or character of the suit or its cause of action. Further, no prejudice can be said to be -8- NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR caused to the respondents if the amendment was allowed especially when the respondents would be entitled to file additional written statement to the amended plaint and their interest / defences can be adequately and sufficiently safeguarded by directing that the proposed amendment sought for in the application shall not relate back to the date of the suit but shall be reckoned and considered from the date of the aforesaid amendment application in the light of the principles laid down by the Apex Court and this Court in several judgments including the judgment in the cases of Sampath Kumar vs. Ayyakannu - AIR 2002 SC 3369 and L.C.Hanumanthappa vs. H.B.Shivakumar
- AIR 2015 SC 3364, wherein amendment was permitted subject to the said conditions and by leaving open the questions / issue of limitation to be decided by the Trial Court afresh in accordance with law. It is also pertinent to note that having regard to the principles governing amendment of pleadings as held by the Apex Court and this Court in various judgments including the cases of Life Insurance Corporation of India v Sanjeev Builders Private Limited and Ors - AIR 2022 SC 4256, in the facts and circumstances obtaining in the instant case, the aforesaid application-I.A.2/2025 for amendment of the plaint filed by the appellant -
plaintiff deserves to be allowed.
8.1. Accordingly, Point No.(i) is answered in favour of the appellant by allowing I.A.2/2025.
Re-Point No.(ii):-
9. The next question that arises for consideration is with regard to the procedure to be followed by this Court pursuant to allowing the application referred to supra.
9.1 As stated earlier, the plaintiff having initially filed a suit for permanent injunction simpliciter without seeking declaration, the same has now been permitted to be amended and converted into a suit for declaration and consequential relief of possession and other reliefs by virtue of allowing the aforesaid application. Under these -9- NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR circumstances, it would be just and proper to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration of the suit afresh in accordance with law."
(Emphasis supplied) Therefore, there is no order against the petitioner that he is not in possession of the property as on today. The co-
ordinate bench clearly holds that the concerned civil Court was in error in not looking into the documents and rejecting the said suit. Be that as it may.
11. The petitioner has produced such documents that would prima facie demonstrate that he is in possession of the property. On a particular day, i.e., 22.02.2023, it is said that the petitioner has trespassed into a site No. 629. The complaint then emerges from respondent No.2 - complainant, who has a site bearing site No.29 outside the layout. The gist of the complaint or certain paragraphs of the complaint is required to be noticed. They read as follows:
".... .... ....
Perusing all these documents, the suit filed by Sri. Raghu.R against me for permanent injunction in O.S.No.4586/2012 was dismissed as per the judgment and decree dated 04/10/2021. So also the objector application filed by me in Ex. Case No.25047/2016 while
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR NTI Society was attempting to enforce a fraudulent decree obtained in O.S.No.25519/2013 was allowed and the judgment and decree obtained by the society O.S.No.25519/2013 against one Mr. A.R. Ramamohan was set aside and the judgment & decree passed in O.S.No.25519/2013 and the proceeding of handing over the possession of Site No.29 are declared as null and void not binding on me and also the Hon'ble Court held that I am entitled to remove the board fixed by NTI Society as per the final order passed in Ex. Case No.25047/2016 dated 30/01/2023. The copies of the aforesaid respective judgment in O.S.No.4586/2012 dated 04/10/2021 and the final order passed in Ex. Case No.25047/2016 dated 30/01/2023 are also furnished herewith for your kind perusal. The said orders have become final till today. As per the order the board fixed by the NTI Society on my site was removed by the Society, Immediately thereafter to avoid further trespass I put the barbed wire fencing by way of temporary arrangement.
Very surprisingly, yesterday on 22/02/2023, a name board displaying "NTI Housing Society Raghu. R, Site No.629 with Mobile No. 9845054186", has been highhandedly placed, shows the deliberate intention to trespass my site by some parties entrusted by Mr. Raghu.R. I am told some underworld real estate agents accompanied with Mr. Lokesh Ramanjani have placed the said board highhandedly by illegally trespassing my site in my absence. Hence, I request your kind self to safeguard my right to the site bearing No.29 situated at 3rd Cross, Shanthivana against the illegal elements of the society. Otherwise, I will be put to irreparable loss and the very purpose of the judgments passed by the appropriate courts has no meaning in the eye of law. Please give me protection as I am a widow without male support. I have also produced herewith the latest photograph of my site taken on 22/02/2023.
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR I expect an immediate action in this regard by your kind self.
Thanking You, Sd/-
MALLIKA C. RAO."
(Emphasis added) This becomes a crime in Crime No.44/2023 for offences punishable under Sections 447 r/w. 34 of the IPC. Section 447 of the IPC reads as follows:
"447. Punishment for criminal trespass.-- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
Section 447 of the IPC deals with criminal trespass. The ingredients of Section 447 of the IPC are found in Section 441 of the IPC. Section 441 reads as follows:
"441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR intent to commit an offence, is said to commit "criminal trespass"."
Section 441 of the IPC mandates that an accused can be alleged of criminal trespass, if he is not in possession of the property. The documents produced herein would prima facie demonstrate that the petitioner is in possession of the property.
Therefore, it cannot be held that the petitioner has criminally trespassed into his own property. Registration of the crime itself on the face of it, is erroneous.
12. This Court considering an identical circumstance in the case of SHIVASWAMY AND OTHERS VS. STATE IN CRL.P.NO.2776/2022, DISPOSED ON 08.07.2022, has held as follows:
"8. The allegation of the complainant in the complaint registered on 02-08-2018 is that the petitioners seven months ago trespassed into the property and created ruckus, took away the belongings and have intimidated the tenants residing in the property allegedly belonging to the complainant. It is the case of the petitioners that the land in Sy.No.11 of Kodigehalli Village Yelahanka Hobli, Bangalore North Taluk was acquired by the Bangalore Development Authority ('BDA' for short) by issuance of preliminary notification on 3-01-1985 and later a final notification on 25-09-1986 for the benefit of NTI Housing Co-operative Society. The 1st petitioner by way of a registered sale deed dated 14-03-2013 purchased the said
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR property from the Society and later got all the revenue records mutated into his name. Likewise, all the petitioners have purchased their portions of property on different dates by way of registered sale deeds and are in possession of the property and residing in the said addresses.
9. It is a matter of record that the complainant along with one Channabasanagouda Polis Patil and others challenged the aforesaid acquisition made in the year 1986 before this Court in Writ Petition No.4470 of 2019. This Court by its order dated 2.02.2022 dismissed the claim of the complainant and another by clearly holding that possession was handed over to the Society on 25-10-2003 after the BDA taking over possession on 13-06-2002. The observations of this Court, insofar as they are germane for the present lis, are as follows:
"8. The material on record disclose that it is the specific contention urged by the petitioners that petitioner No.1 had acquired the suit schedule property under a registered sale deed dated 10-08- 1983 and formed the lay-out in the same and sold some of the sites in favour of petitioners 2 to 9 during the period 31-03-1995 to 4-08-2014. Meanwhile, the subject land was notified for acquisition vide preliminary notification dated 3-01-1985 and final notification dated 22-09-1986; since there were litigations including W.P.No.292 of 1987 challenging the said notifications till the same were disposed of on 11.10.1993, the award was passed on 14-09-1995, pursuant to which, possession was taken by the SLAO on 15-02- 2002 followed by a notification dated 13-06- 2002 issued under Section 16(2) of the L.A.Act; thereafter, the subject land was handed over to the possession of 3rd respondent-Society on 25- 10-2003, pursuant to which, sites have been sold/allotted in favour of its members including respondents 5 to 9. It is therefore, clear that petitioners 2 to 9 herein claimed to be the purchasers of portions of the subject land after issuance of preliminary and final notifications dated 3-01-1985 and 22-09-1986 respectively; It follows there from that petitioners 2 to 9 being subsequent purchasers do
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR not have locus standi to challenge the preliminary and final notifications, which were undisputedly issued prior to them purchasing their respective portions as stated supra and consequently, the claim and contention of petitioners 2 to 9 is not maintainable and liable to be rejected, since the said sale deeds in favour of petitioners 2 to 9 after issuance of the aforesaid notifications are null and void as held by the Apex Court in the case of Shivkumar and another v. Union of India and others - (2019) 10 SCC 229."
... ... ... ...
16. A perusal of the said order makes it amply clear that the same cannot be treated as conclude as having reserved any liberty in favour of petitioner No.1 and consequently, the said order in W.A.No.1993 of 2013 cannot be relied upon by petitioner No.1 in support of his case. In this context, it is necessary to state that despite repeatedly and unsuccessfully challenging the impugned notification, petitioner No.1 is attempting to circumvent all the earlier orders passed against him with mala fide intention and ulterior motives which cannot be countenanced by this Court in the present petition. Under these circumstances, even this contention urged by the petitioners is liable to be rejected.
17. In view of the aforesaid discussion and the material on record obtaining in the instant case, I do not find any merit in this petition and the same is liable to be dismissed."
(Emphasis supplied) The complainant in the impugned complaint along with others preferred a review petition before the learned Judge who had rejected their claim in Review Petition No.394 of 2022 by order of this Court dated 21-04-2022 holding that the order did not suffer from any error apparent on the face of the record. This was in vindication of the claim of the petitioners that they are in possession of the property pursuant to the sale deeds executed in their favour and the contrary claim was rejected by this Court.
10. In the teeth of the claim of the complainant, and the order passed by this Court, it is germane to notice the
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR complaint that is registered by the complainant. The complaint is registered on 02.08.2018 for an incident that has happened seven months ago i.e., on 13-01-2018 at 9.00 a.m. The narration in the complaint clearly indicates that there are civil proceedings pending between the parties in O.S.No.403 of 2018 to 407 of 2018. The complaint reads as follows:
¢£ÁAPÀ:01/08/2018 EAzÀ, °Ã¯ÁªÀw ¦.¹.
PÉÆÃA ZÀAzÀæ±ÉÃRgï 35 ªÀµÀð £ÀA.123, 5£Éà PÁæ¸ï, 3£Éà ªÉÄÃ£ï ªÀĺÁUÀt¥Àw £ÀUÀgÀ qÀ§Äèöå.¹.gÉÆÃqï. ¨ÉAUÀ¼ÀÆgÀÄ -40.
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR »ÃVgÀĪÁUÉÎ ¢£ÁAPÀ:13/01/2018 gÀAzÀÄ ¨É¼ÀUÉÎ ¸ÀĪÀiÁgÀÄ 9-00 UÀAmÉ ªÉüÉAiÀÄ°è J£ï.n. PÉÆà D¥ÀgÉÃnªï ¸ÉƸÉÊnAiÀÄ PÀqÉAiÀĪÀgÁzÀ ²ªÀ¸Áé«Ä, J.JA.ªÀÄ£ÉÆúÀgï, D£ÀAzï PÀªÀiÁðPÀgï, §¸ÀAw gÁt ¥Ë¯ï, ¥Á¯Éñï PÀªÀiÁðPÀgï JA§ÄªÀªÀgÀÄ £À£Àß ªÀÄ£ÉUÉ ºÁUÀÆ ªÉÄîÌAqÀ ²æêÀÄw.«£ÀÄvÁ. ºÉZï. PÉÆÃA dUÀ¢Ã±ïZÀAzÀæ. ¹.ºÉZï. gÀªÀjUÉ ¸ÉÃjzÀ ¤ªÉñÀ£À ¸ÀASÉå 2 gÀ°è£À ªÀÄ£ÉUÉ, ²æÃ.¸ÉÆêÀıÉÃRgï ªÀÄvÀÄÛ CgÀÄtPÀĪÀiÁgï gÀªÀjUÉ ¸ÉÃjzÀ ¤ªÉñÀ£À ¸ÀASÉå 8 gÀ°è£À ªÀÄ£ÉUÉ, ²æêÀÄw.²æÃzsÀgï gÀªÀgÀ ¤ªÉñÀ£À ¸ÀASÉå-9 gÀ°è£À ªÀÄ£ÉUÉ ²æÃ.¹.J.¥ÁnÃ¯ï ¤ªÉñÀ£À ¸ÀASÉå-1 gÀ°è£À ªÀÄ£ÉUÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁr ¸ÀzÀj ªÀÄ£ÉUÀ¼À°èzÀÝ ¨ÁrUÉzÁgÀgÀ£ÀÄß ºÉzÀj¹ ¨ÉzÀj¹ ªÀģɬÄAzÀ ºÉÆgÀUÀqÉ Nr¹gÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀzÀj £ÀªÀÄä ªÀÄ£ÉUÀ¼À°è £ÁªÀÅUÀ¼ÀÄ «zÀÄåvï ¸À®ÄªÁV £ÀªÀÄä Rað£À°è ºÁQ¹zÀÝ «zÀÄåvï «ÄÃlgï C£ÀÄß QvÉÛ¸ÉzÀÄ CªÀgÀÄ ¨ÉÃgÉAiÀÄ «zÀÄåvï «ÄÃlgï C£ÀÄß ºÁQPÉÆArgÀÄvÁÛgÉ. vÀzÀ£ÀAvÀgÀ £ÀªÀÄUÉ ¸ÀzÀj «µÀAiÀÄ UÉÆvÁÛV £ÁªÀÅ £ÀªÀÄä ªÀÄ£ÉUÀ¼À §½UÉ ¸ÀĪÀiÁgÀÄ 10-00 UÀAmÉ ªÉüÉUÉ C°èUÉ ºÉÆÃV ¸ÀzÀj ªÀåQÛUÀ¼À£ÀÄß ¥Àæ²ß¸À®Ä ºÉÆÃzÁUÀ CªÀgÀÄUÀ¼ÀÄ £ÀªÀÄUÉ M¼ÀUÀqÉUÉ ºÉÆÃUÀ®Ä ©qÀzÉ £ÀªÀÄUÉ fêÀ ¨ÉzÀjPÉAiÀÄ£ÀÄß ºÁQgÀÄvÁÛgÉ. £ÀªÀÄä ªÀÄ£ÉUÀ¼À PÁA¥ËAqïUÉÆÃqÉUÀ¼À ªÉÄÃ¯É M.J¸ï.£ÀA§gï ºÁUÀÆ CªÀgÀÄUÀ¼À ¥ÉÆãï£ÀA§gï §gÉzÀÄ qÁåªÉÄÃeï ªÀiÁrgÀÄvÁÛgÉ. F §UÉÎ £Á£ÀÄ ºÁUÀÆ ªÉÄîÌAqÀ ¤ªÉñÀ£ÀUÀ¼À ªÀiÁ°ÃPÀgÀÄ ºÀ®ªÁgÀÄ zÀÆgÀÄUÀ¼À£ÀÄß ¸ÀºÀ ¥Éưøï oÁuÉUÉ ¤ÃrgÀÄvÉÛêÉ.
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(°Ã¯ÁªÀw ¦.¹.)"
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR The Police after investigation filed a charge sheet in the case against the petitioners. The summary of the charge sheet as found in column No.7 reads as follows:
"zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ PÁ®A £ÀA.2 & 4 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ J1 jAzÀ J5 gÀªÀgÉV£À DgÉÆævÀgÀÄ ¢£ÁAPÀ 13/01/2018 gÀAzÀÄ ¨É½UÉÎ ¸ÀĪÀiÁgÀÄ 9-00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ PÉÆrUɺÀ½î ¥Éưøï oÁuÁ ¸ÀgÀºÀ¢Ý£À, CªÉÆÌà ¯ÉÃOmï, 1£Éà PÁæ¸ï£À°ègÀĪÀ ¥ÁnÃ¯ï «ºÁgï ¯ÉÃOmï £À°ègÀĪÀ ¸ÉÊmï £ÀA.1, 2 , 4, 8 & 9 gÀ ¸ÀéwÛUÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁr ªÀÄ£ÉUÀ½UÉ C¼ÀªÀr¹zÀÝ «zÀÄåvï «ÄÃlgï ¨ÉÆÃqïðUÀ¼À£ÀÄß QvÉÛ¸ÉzÀÄ, ªÀÄ£ÉUÀ¼À°è ªÀ¸ÀªÁVzÀݪÀjUÉ F ¸ÉÊlÄUÀ¼ÀÄ £ÀªÀÄUÉ ¸ÉÃjzÀÄÝ, F §UÉÎ £ÁªÀÅ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ ºÀÆrgÀÄvÉÛêÉ, F PÀÆqÀ¯Éà ¤ÃªÀÅ ªÀÄ£ÉUÀ¼À£ÀÄß SÁ° ªÀiÁrPÉÆAqÀÄ ºÉÆÃV JAzÀÄ ºÉzÀj¹ ªÀÄ£ÉAiÀÄ ¸ÁªÀiÁ£ÀÄUÀ¼À£ÀÄß ºÉÆgÀUÉ J¸ÉzÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVzÀݪÀgÀ£ÀÄß SÁ° ªÀiÁr¹gÀÄvÁÛgÉ.
DgÉÆævÀgÀÄ ¸ÀéwÛ£À «µÀAiÀĪÁV ¹¹ºÉZï-15£Éà £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ ºÀÆrzÀÄÝ, zÁªÉ «ZÁgÀuÉAiÀÄ°ègÀĪÁUÀ¯Éà ¸ÀévÀÄÛUÀ½UÉ CwPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁr, UÀ¯ÁmÉ ªÀiÁr, ªÀÄ£ÉUÀ¼À°èzÀݪÀjUÉ ¨ÉzÀj¹ CªÀgÀ UÀȺÉÆÃ¥ÀAiÉÆÃV ªÀ¸ÀÄÛUÀ¼À£ÀÄß ºÉÆgÉUÉ ºÁQ ªÀÄ£ÉAiÀÄ£ÀÄß SÁ° ªÀiÁr¹, «ÄÃlgï ¨ÉÆÃqïðUÀ¼À£ÀÄß QvÉÛ¸ÉzÀÄ, ¸ÀéwÛ£À ªÀiÁ°ÃPÀjUÉ CPÀæªÀÄ £ÀµÀÖªÀÅAlÄ ªÀiÁrgÀĪÀÅzÀÄ ¥ÀæPÀgÀtzÀ vÀ¤SɬÄAzÀ ¸Á©ÃvÁVgÀÄvÀÛzÉ.
DzÀÝjAzÀ DgÉÆævÀgÀ ªÉÄîÌAqÀ PÀ®A jÃvÁå ²PÁëºÀð C¥ÀgÁzsÀªÉ¸ÀVzÀÄÝ, F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."
What is stated in the complaint is verbatim repeated in the summary of the charge sheet. The complaint itself was registered after seven months of the alleged incident that too for offences punishable under Sections 427 and 447 of the IPC as preliminary offences.
11. In the light of the said allegations, it is necessary to notice Sections 447 and 427 of the IPC. Section 447 reads as follows:
"447. Punishment for criminal trespass.-- Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
Section 447 deals with punishment for criminal trespass and directs that whoever commits criminal trespass shall be punished. Section 441 defines what is criminal trespass and reads as follows:
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR "441. Criminal trespass.--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass"."
Section 427 deals with mischief causing damages to one's property. Mischief is as defined under Section 425 of the IPC. Both Sections 425 and 427 of the IPC read as follows:
"425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."
... ... ... ...
"427. Mischief causing damage to the amount of fifty rupees.--Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Section 447 which deals with criminal trespass hinges upon the complainant being in possession of the property, as one can trespass a property not
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR belonging to the accused but belonging to the complainant and cause mischief or damage under Section 427 of the IPC. Therefore, Section 447 of the IPC which directs punishment for criminal trespass has in itself, a civil flavour. Therefore, Section 447 as defined under Section 441 of the IPC is an interplay between a civil right and a crime.
12. If possession is not with the complainant, she can hardly contend that the accused have trespassed into the property of the complainant. Her possession in the case at hand is determined by this Court in the aforesaid writ petition while observing that the BDA had already acquired the property for a particular purpose in the year 1986 and the complainant being in possession was not accepted. Civil cases are also pending against each other. Therefore, if the complainant is not in possession of the property, there can be no allegation of criminal trespass into such property, in which accused themselves are in possession.
13. Criminal trespass as obtaining under Section 447 of the IPC and defined under Section 441 of the IPC can be committed only when a person enters into or upon any property, which is in possession of another with intent to commit an offence or intimidate, insult or annoy any person in possession of such property. If possession itself is not with the complainant as is held by this Court (supra), there can be no offence of criminal trespass into the property not belonging to the complainant. If there is no criminal trespass into the property, causing damage under Section 427 of the IPC, by way of mischief of destruction of property also cannot be alleged, as they are inseparable, in the peculiar facts of this case.
14. The contention of the learned counsel appearing for respondent No.2 that respondent No.2 is in possession of the property holds no water, in the light of the finding rendered by the Co-ordinate Bench of this Court albeit in a different proceeding. The other ground that the 2nd respondent would urge is that the criminal petition is preferred after 3 years after registration of the crime and the petition should be dismissed on account of delay. This statement is noted only to be repelled, as delay in every
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR case would not disentitle the accused for a relief if it is available in law and this Court at its discretion, in exercise of its power under Section 482 of the Cr.P.C., to prevent miscarriage of justice, can interfere despite delay, in a given case.
15. The judgments relied on by the learned counsel for the 2nd respondent in the case of PRITI SARAF AND ANOTHER v. STATE OF NCT OF DELHI & ANOTHER - 2021 SCC Online 206 and in the case of SAU.KAMAL SHIVAJI POKARNEKAR v. THE STATE OF MAHARASHTRA AND OTHERS - (2019) 14 SCC 350 are of no avail as they are inapplicable to the facts of the case at hand. PRITI SARAF was concerning offences punishable under Sections 406 and 420 of the IPC. The finding of the Apex Court therein was inducement and criminal breach trust was writ large in the facts of that case. The Apex Court holds that merely because the matter is civil in nature or civil proceedings are pending, the Court should not quash the proceedings. The same goes with the case of KAMAL SHIVAJI POKARNEKAR (supra) which would also direct that merely because civil proceedings are pending, the same should not be quashed if the complaint discloses prima facie offence. There again, the offences were of forgery and using a forged document to gain benefit. It is considering those offences qua the facts obtaining in those cases the Apex Court holds that jurisdiction under Section 482 of the Cr.P.C. ought not to have been exercised.
16. The facts obtaining in the case at hand are clearly different from the facts obtaining before the Apex Court. The case at hand is for offence under Section 447 of the IPC, for which the most relevant factor would be exclusive possession of the property, on which the accused is alleged to have trespassed. If exclusive possession is not with the complainant, the complaint of criminal trespass into the property and damage to that property under Section 427 of the IPC can hardly be alleged, as observed hereinabove. The petitioners have also placed abundant material by way of documents that are unimpeachable and of sterling quality, which would undoubtedly overpower the documents and submissions of the learned counsel appearing for the
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR respondent No.2. If Sections 427 and 447 of the IPC cannot be seen to be present in the case at hand, the other offences for the ones punishable under Sections 448, 506 and even 143 of the IPC can hardly be alleged, as Section 447 deals with criminal trespass into a property. Section 448 makes house trespass a punishment and Section 427 damage to the property by way of mischief.
17. If the possession of the property itself is in doubt, driving home the offences beyond all reasonable doubt, would without doubt become doubtful. On such a premise, if further proceedings are permitted to continue against the petitioners, notwithstanding the fact that charge sheet has been filed by the Police, would become an abuse of the process of law and result in miscarriage of justice."
(Emphasis supplied) In the light of the afore-quoted judgment of this Court, registration of the crime prima facie is an abuse of the process of the law and if permitted to be investigated into even, would result in miscarriage of justice.
13. For the aforesaid reasons, the following:
ORDER a. The criminal petition is allowed.
b. The impugned crime in Crime No.44/2023, pending on the file of the VII Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.
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NC: 2026:KHC:3309 CRL.P No. 4540 of 2023 HC-KAR c. It is made clear that the findings rendered by this Court will not bind or influence the civil proceedings if any, between the parties, in the any competent civil Court.
Sd/-
(M.NAGAPRASANNA) JUDGE NVJ List No.: 1 Sl No.: 3 CT:SS