Karnataka High Court
Bruhat Bengaluru Mahanagara Palike vs B M T F Police on 26 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NOS.515 OF 2019 (GM - RES) c/w.
514/2019, 516/2019 & 517/2019
IN W.P.No.515/2019
BETWEEN:
BRUHAT BENGALURU MAHANAGAR PALIKE
REPRESENTED BY THE COMMISSIONER
SRI MANJUNATH PRASAD
N R SQUARE
BENGALURU-560 002.
...PETITIONER
(BY SRI. AMAR CORREA, ADVOCATE)
AND:
1. BMTF POLICE
BBMP OFFICE BUILDING
N R SQUARE
BENGALURU-560 002
REP.BY SUPERINTENDENT OF POLICE.
2. SRI VIJAY KUMAR D PATIL
THEN ADTP, B B M P
S/O. LATE DEVENDRAPPA PATIL
AGED ABOUT 60 YEARS
R/AT NO.31, KARANJA GRACE
3RD MAIN ROAD, 5TH CROSS
T P VENUGOPALA LAYOUT
R T NAGAR BENGALURU
2
3. SRI SARVOTHAM RAJ
THEN ADTP, B B M P
BENGALURU
S/O LATE SATHHYANARAYANA
AGED ABOUT 41 YEARS
R/AT NO.47 6TH MAIN ROAD
KENGERI UPA NAGARA
BENGALURU-560 060
4. SRI D LAKKANNA
S/O LATE DUGAPPA
AGED ABOUT 75 YEARS
R/AT NO.25 1ST AVENUE
1ST MAIN ROAD SHUBHA ENCLAVE
HARALURU BENGALURU
5. SMT D SHANTHA AND OTHERS
W/O D LAKKANNA
AGED ABOUT 65 YEARS
R/AT NO.25 1ST AVENUE
1ST MAIN ROAD
SHUBHA ENCLAVE
HARALURU BENGALURU..
...RESPONDENTS
(BY SRI.ROHIT B.J. HCGP FOR R1, SRI. ASHWINI RAJAGOPAL,
ADVOCATE FOR RE; SRI. PRINCE ISAC, ADVOCATE FOR R4 AND
R5; R2 SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA AND SECTION 482 OF CODE
OF CRIMINAL PROCEDURE PRAYING TO CALL FOR THE RECORDS IN
CRIME NO.106/2016 ON THE FILE OF THE IV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE COURT, BANGALORE, FOR OFFENCES
PUNISHABLE UNDER SECTIONS, 192(A) AND (B) OF KARNATAKA
LAND REVENUE ACT-1964, SECTION 436 (A) OF KARNATAKA
MUNICIPAL CORPORATION ACT 1978, SECTIONS 217, 432, 434,
3
441, 427, 420 AND 409 OF INDIAN PENAL CODE-1860 VIDE
ANNEXURE-A.
IN W.P.No.514/2019
BETWEEN:
BRUHAT BENGALURU MAHANAGARA PALIKE
REPRESENTED BY COMMISSIONER
SRI MANJUANTH PRASAD
N R SQUARE
BENGALURU-560002.
...PETITIONER
(BY SRI. AMAR CORREA ADVOCATE)
AND:
1. B M T F POLICE
BBMP OFFICE BUILDING
N R SQUARE
BANGALORE-560002
REP. BY ITS SUPERINTENDENT OF POLICE.
2. SRI GURUPRASAD
THEN ASSISTANT ENGINEER
BBMP BENGALURU
S/O B VIJAY KUMAR
AGED ABOUT 35 YEARS
R/A NO.706, IST FLOOR
10TH MAIN ROAD
VINAYAKA LAYOUT
NAGARABHAVI
BENGALURU-560072
3. SRI SHASHIDHAR
THEN ADTP(AEE)
BBMP, BENGALURU
S/O LATE PILLAPPA
4
AGED ABOUT 55 YEARS
R/A NO.19120, 24TH MAIN,
8TH CROSS, 2ND PHASE, J.P. NAGAR,
BENGALURU - 560 078.
4. SRI B T MOHAN KRISHNA
THEN ADTP(EE)(CE)
BBMP, BENGALURU
S/O LATE B H TAMAIAH
AGED ABOUT 55 YEARS
R/A NO.159, 7TH MAIN ROAD
4TH BLOCK, BASAVESHWARANAGAR
BENGALURU-560079
5. SRI GOVINDARAJU
THEN J D T P(C E)
BBMP, BENGALURU
S/O LATE T R VENKATAMADYYA
AGED ABOUT 58 YEARS
R/A NO.346, 1ST A CROSS
8TH MAIN ROAD, 3RD STAGE
4TH BLOCK, BASAVESHWARA NAGAR
BENGALURU-560079
6. SRI CHOWDEGOWDA
THEN DD(RTD) TP
B B M P, BENGALURU
S/O LATE MADEGOWDA
AGED ABOUT 63 YEARS
R/A NO.91, 3RD MAIN ROAD
AIRTEL OFFICE ROAD
7TH BLOCK, 4TH PHASE,
BANASHANKARI 3RD STAGE
BENGALURU-560085..
...RESPONDENTS
(BY SRI. ROHITH B.J., HCGP FOR R1; SRI. MADHUKAR
DESHPANDE, ADVOCATE FOR SRI. C.M. NAGABHUSAN, ADVOCATE
5
FOR R2 AND R3; SRI. J. PRASHANTH, ADVOCATE FOR R4; R5 AND
R6 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING FOR DIRECTION
TO CALL FOR THE RECORDS IN CRIME NO.104/2016 ON THE FILE
OF THE IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
COURT, BENGALURU, FOR OFFENCES PUNISHABLE UNDER
SECTIONS, 192(A) AND (B) OF KARNATAKA LAND REVENUE ACT -
1964, SECTION 436(A) OF KARNATAKA MUNICIPAL CORPORATION
ACT - 1968, SECTIONS 217, 432, 434, 441, 427, 420 AND 409 OF
INDIAN PENAL CODE-1860 VIDE ANNEXURE-A.AND ETC.,
IN W.P.No.516/2019
BETWEEN:
BRUHAT BENGALURU MAHANAGAR PALIKE
REPRESENTED BY THE COMMISSIONER
SRI MANJUNATH PRASAD
N R SQUARE
BENGALURU-560 002.
...PETITIONER
(BY SRI.AMAR CORREA, ADVOCATE)
AND:
1. B.M.T.F. POLICE,
BBMP OFFICE BUILDING,
N.R.SQUARE,
BENGALURU-560 002.
REP. BY SUPERINTENDENT OF POLICE.
2. SRI.S.MRUTHYUNAJAYA
THEN, S.E.,
B.B.M.P. BENGALURU,
N.R. SQUARE, BENGALURU -560 002.
6
3. SRI.T.NATARAJ
THEN, J.D.T.P.
BBMP BENGALURU,
S/O LATE H.THATAPPA,
AGED ABOUT 60 YEARS,
R/AT NO.1651 38TH CROSS,
EAST END, A MAIN ROAD,
9TH LAYOUT, JAYANAGARA,
BENGALURU-560 060.
4. SRI.CHOWDEGOUDA
THEN (D.D.RTD)
TOWN PLANNING MEMBER
B.B.M.P., BENGALURU
S/O LATE MADEGOUDA,
AGED ABOUT 63 YEARS
R/AT NO.91, 3RD MAIN ROAD,
AIRTEL OFFICE ROAD,
7TH BLOCK, 4TH STAGE,
3RD PHASE, BANASHANKARI,
BENGLAURU-560 085...
...RESPONDENTS
(BY SRI.ROHITH B.J., HCGP FOR R1; SRI. SANTOSH S. NAGARALE,
ADVOCATE FOR R3; NOTICE TO R4 HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING FOR DIRECTION
TO CALL FOR THE RECORDS IN CRIME NO.107/2016 ON THE FILE
OF THE IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
COURT, BANGALORE, FOR OFFENCES PUNISHABLE UNDER
SECTIONS, 192(A) AND (B) OF KARNATAKA LAND REVENUE ACT -
1964, SECTIONS 436 (A) OF KARNATAKA MUNCIPAL CORPORATION
ACT-1976, SEC. 217, 432, 434, 441, 427, 420 AND 409 OF IPC,
VIDE ANNX-'A'.AND ETC.,
7
IN W.P.No.517/2019
BETWEEN:
BRUHAT BENGALURU MAHANAGARA PALIKE
REPRESENTED BY THE COMMISSIONER,
SRI MANJUNATH PRASAD
N.R.SQUARE, BENGALURU - 560 002.
...PETITIONER
(BY SRI. AMAR CORREA, ADVOCATE)
AND:
1. BMTF POLICE STATION
REPRESENTED BY SUPERINTENDENT OF POLICE,
BBMP OFFICE BUILDING
N.R.SQUARE
BANGALORE - 560 002.
2. SMT. SUNITHA
THEN ASSISTANT ENGINEER
B.B.M.P. BENGALURU
W/O V ANAND KUMAR
AGED ABOUT 43 YEARS,
R/AT NO. 1105, 4TH CROSS
D BLOCK, A.E.C.S.LAYOUT,
KUNDALAHALLI, BENGALURU-37
3. SRI GANGAPPA
THEN ASSISTANT EXECUTIVE ENGINEER,
B.B.M.P. BENGALURU
S/O LATE PILLAPPA
AGED ABOUT 58 YEARS,
R/AT NO. 267, PRASHANTH NAGARA
DEVANAHALLI TOWN
BENGALURU RURAL -562110
4. SRI LIYAKATH
THEN ASSISTANT DIRECTOR,
8
B.B.M.P. BENGALURU
S/O LATE SHAKE MEHABOOB
AGED ABOUT - MAJOR,
R/AT NO. 684, 3RD CROSS,
CHAMARAJAPETE
CHIKKABALLAPURA -562101.
5. SRI MUNI KRISHNA
THEN CHIEF ENGINEER
B.B.M.P.BENGALURU
S/O LATE LAKKAPPA
AGED ABOUT 64 YEARS,
R/AT NO.16, 36 A CROSS,
15TH MAIN ROAD, 4 T BLOCK,
JAYANAGARA
BENGALURU - 560 041
...RESPONDENTS
(BY SRI.ROHITH, B.J., HCGP FOR R1; SRI. MADHUKAR
DESHPANDE, ADVOCATE FOR SRI. C.M. NAGABHUSAN, ADVOCATE
FOR R2 AND R4; SRI. KALYAN R, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN CRIME NO.108/2016 ON THE FILE OF THE IV
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT,
BENGALURU, FOR OFFENCES PUNISHABLE UNDER SECTIONS,
192(A) AND (B) OF KARNATAKA LAND REVENUE ACT - 1964,
SECTION 436 (A) OF KARNATAKA MUNCIPAL CORPORATION ACT -
1978, SECTIONS 217, 432, 434, 441, 427, 420 AND 409 OF
INDIAN PENAL CODE - 1860 VIDE ANNEXURE-A.
9
THESE WRIT PETITIONS COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Since issues involved in all these writ petitions are similar, they are taken up together, heard and disposed of by common order.
2. A FIR was lodged for the offences punishable under Sections 193(A) and (B) of Karnataka Land Revenue Act, 1964 (for short KLR Act), Section 436(A) of Karnataka Municipal Corporation Act, 1978 (KMC Act for short) and Sections 217, 432, 434, 441, 427, 420 and 409 of Indian Penal Code, 1860 (for short IPC).
3. The summary of the FIR lodged against the accused are as follows:
The accused, when working as officers of Bruhat Bengaluru Mahanagara Palike (for short BBMP), sanctioned building plans by ignoring the fact that there exists Rajakaluve and without taking into account the buffer zone of the Rajakaluve, sanctioned building plans in favour of the owners of the building, resulting in flooding of the adjoining areas. The police after investigation submitted B 10 report stating that the accused had taken into account the buffer zone and thereafter sanctioned building plans.
4. Learned Magistrate issued notice to the first informant. The first informant did not chose to file objection to the B report and the same was accepted by the learned Magistrate. Against which, the petitioners are before this Court.
5. Sri. Amar Correa, learned Senior Counsel appearing for the petitioner submits that the acceptance of the B report by learned Magistrate is not in accordance with law, since the same has been accepted without application of mind. He further submits that the allegation made in the FIR clearly discloses the commission of offence punishable under Sections 192(A) and (B) of KLR Act, also Section 436(A) of KMC Act. He further submits that during investigation, police had not conducted proper investigation. He further submits that the B report is contrary to the guidelines issued by this Court in the case of Dr. Ravikumar Vs. Mrs. K.M.C. Vasantha and Another reported in ILR 2018 KAR 1725. 11
6. On the other hand, learned counsels appearing for the accused submits that allegations made in the FIR does not satisfy the essential ingredients so as to constitute the commission of offences punishable under sections 192 (A) & (B) of KLR Act and Section 436A of KMC Act. Hence, it would be a futile exercise if the matter is remitted to the learned Magistrate to reconsider the B report and thereafter to pass appropriate orders. In support, reliance is placed on the decision of Hon'ble Supreme Court in case of Gadde Venkateswara Rao Vs. Government of Andhra Pradesh reported in AIR 1966 SC 828.
7. Learned HCGP appearing for the state would reiterate the submissions made by the learned counsel appearing for the petitioner.
8. I have examined the submissions made by the learned counsel for the parties.
9. The allegations in the FIR are that the accused when working as officers of BBMP had sanctioned building plans ignoring the buffer zone on the Rajakaluve, which has resulted in flooding of 12 the adjoining areas. To constitute the offence punishable under Sections 192(A) and (B) of KLR Act, a person must have unlawfully entered or occupied any Government land with the intention of holding that Government land.
10. In the present case, there is no allegation that the accused have abetted a person to unlawfully enter or to occupy any Government land with an intention to hold Government land. In absence of essential ingredients constituting of the commissioning offences punishable under Sections 192(A) and (B) of the KLR Act it would be futile exercise if the matter is remanded to the learned Magistrate. Hence, the allegations made in the FIR does not disclose commission of offence punishable under Sections 192(A) and (B) of the KLR Act.
11. To constitute offence punishable under Section 436(A) of KMC Act which is in parameterium with Sections 192(A) and (B) of the KLR Act, the allegations made in the FIR does not disclose the commission of the offence alleged against the accused for the offences punishable under Section 436(A) of the KMC Act. 13
12. The BMTF has been constituted to investigate the offences punishable under provisions of KMC Act and also the KLR Act. However, the Government Order dated 02.02.2013 specifies that BMTF can register a case and proceed with the investigation of the case if the facts contained in the complaint disclose the offences under the Special Acts mentioned in G.P. No.UD 247 MNU 95 dated 19.03.1996 and those mentioned above read with or without those relevant under the IPC and Karnataka Police Act (KP Act for short) and if the complaint discloses the commission of offences only under IPC or under KP Act then it will not be competent on the part of the BMTF to proceed with the investigation thereof.
13. Hence, the BMTF, in the absence of any essential ingredients to constitute the offence commissioned punishable under Sections 192(A) and (B) of KLR Act and Section 436 (A) of KMC Act, could not have registered the FIR for the offences punishable under the provisions of the IPC and KP Act.
14. In view of the aforesaid, I am of the considered view that it would be futile exercise if the matter is remitted to the learned Magistrate to reconsider the B report though accepted 14 without application of mind and contrary to the guidelines issued in the case of Dr. Ravikumar (supra).
Accordingly, I pass the following:
ORDER Petitions stand dismissed.
Sd/-
JUDGE BVK 15 WP NO. 515/2019 Connected Cases: WP NO. 514/2019, WP NO. 516/2019, WP NO. 517/2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [BRUHAT BENGALURU MAHANAGAR PALIKE VS. BMTF POLICE AND OTHERS] HCJ 27.09.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON "BEING SPOKEN TO"
It is submitted that there is typographical error in page No.10 at paragraph-5 in the order dated 26.08.2022 passed in W.P.No.515/2019 and connected matters.
It is directed that in W.P.No.515/2019 and connected matters at page No.5 of paragraph-10 of the order dated 26.08.2022 words 'Senior Counsel' to be deleted and same to be replaced as "Counsel".
This order shall be read in conjunction with the order dated 26.08.2022.
Registry to effect necessary correction and issue fresh certified copy.
Sd/-
JUDGE RKA List No.: 1 Sl No.: 31