Karnataka High Court
Mr. Dayanand. N vs The State Of Karnataka on 10 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 975
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
1
Crl.P.No.1119/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION No.1119 OF 2021
BETWEEN:
MR. DAYANAND. N,
S/O. MR. NAGABHUSHAN RAO,
AGED ABOUT 49 YEARS,
R/AT HOUSE NO.70/2,
6TH MAIN, 9TH CROSS,
PILLAPPA BLOCK,
GANGANAGAR,
R.T. NAGAR POST,
BANGALORE NORTH,
BANGALORE - 560 032.
... PETITIONER
(BY SRI. K.S.CHANDRAHASA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE
SUB-INSPECTOR OF POLICE,
HEBBAL POLICE STATION,
BENGALURU NORTH,
BENGALURU - 560 024.
2. SMT. JYOTHIKA SINGH
W/O. SRI. RAMINDER SINGH,
MAJOR,
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Crl.P.No.1119/2021
3. SRI. RAMINDER SINGH,
MAJOR,
NO.2 & 3 ARE R/AT: NO.1-25,
R/AT NO.1-25,
LAJPATH NAGAR III,
NEW DELHI - 110 024.
(PRESENT ADDRESS)
TEMPORARILY R/AT NO.42,
FORTUNE VALLEY LAYOUT,
13/2, MARIYANPALYA,
HEBBAL,
BENGALURU - 560 024.
... RESPONDENTS
(BY SMT. RASHMI JADHAV, HCGP FOR R1;
SRI. V.R.BALASUBRAMANI, ADVOCATE FOR R2 & R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING THIS HON'BLE COURT MAY BE
PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN
PCR.NO.13205/2020 PENDING ON THE FILE OF THE I
ACMM, BANGALORE AGAINST THE PETITIONER HEREIN.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY THROUGH VIDEO CONFERENCE,
THE COURT MADE THE FOLLOWING:
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Crl.P.No.1119/2021
ORDER
Heard the learned counsel for the petitioner and learned HCGP for respondent No.1 and learned counsel appearing for respondent No.2.
2. Learned counsel for the petitioner submits that the petitioner who is accused in crime No.6/2021 registered by Hebbal Police Station, pursuant to the reference order under Section 156(3) of Cr.P.C. in PCR No.13205/2020 by the Court of 1st ACMM, Bengaluru has filed this petition challenging the FIR in Cr.No.6/2021 and has also prayed to quash the entire proceedings which is pending before the Trial Court.
3. Brief facts of the case as reflected from the records are:
The second respondent herein has lodged a private complaint dated 07.12.2020 before the Court of I ACMM, Bengaluru on 10.12.2020 and the learned magistrate has referred the said complaint to the 4 Crl.P.No.1119/2021 jurisdictional police under section 156(3) of Cr.P.C which has resulted in filing FIR in Crime No.6/2021 by the Hebbal Police Station for the offences punishable under Sections 420 and 447 of IPC against the petitioner herein. Being aggrieved by the same the petitioner has approached this court in this petition.
4. Learned counsel for the petitioner submits that the petitioner is in peaceful possession and enjoyment of the property and he has a sale deed in his favour in respect to the property in dispute. He submits that the dispute between the parties is with regard to immovable property bearing site No.99 situated at Jakkur Village, Yelahanka Hobli, Bengaluru. He submits that with regard to this dispute the second respondent had filed O.S.No.6399/2012 against the petitioner herein seeking relief of injunction and the said suit was filed on 07.12.2020 and the application seeking injunction in the said suit has been dismissed. 5 Crl.P.No.1119/2021 Whereas the petitioner has also filed a suit against the second respondent herein in O.S.No.6486/2020 and in the said suit, injunction has been granted in favour of the petitioner. He submits that considering his title and possession over the property, injunction is granted in the suit filed by him. The second respondent has thereafter filed a private complaint with the very same allegations as made in the suit alleging that the petitioner is trespassing his property. Based on the reference order in said private complaint, the FIR is now registered against the petitioner. He submits that dispute between the parties is purely civil in nature and in addition to filing the suit, the second respondent had also approached BMTF who had issued a notice to petitioner. The petitioner having received the notice from the said authority, had submitted a detailed reply and being satisfied with the reply the BMTF has now closed the proceedings. He submits that only with an ulterior motive as an afterthought, the second 6 Crl.P.No.1119/2021 respondent initiated the criminal proceedings. He also submits that there is no compliance of Section154(3) of Cr.P.C prior to filing private complaint which is a requirement as held in the case of PRIYANKA SRIVASTAVA AND ANOTHER V/S STATE OF UTTAR PRADESH AND OTHERS reported in (2015)6 SCC 287. Therefore he prays to allow the petition.
5. Per contra learned counsel appearing for the second respondent submits that the second respondent has a sale deed prior to the petitioner in respect of the very same property, taking advantage of the respondent's absence in Bengaluru, petitioner has trespassed into the property. He submits that the order passed on the application filed by the second respondent in O.S.No.6399/2020 rejecting temporary injunction has been already challenged before this Court in MFA and he also submits that the complaint averments would make out a prima facie case for 7 Crl.P.No.1119/2021 alleged offences and accordingly prays to dismiss the petition.
6. I have carefully considered the rival arguments addressed by both the side and also perused the material on record.
7. From the available material on record it is very clear that there is dispute between the parties with regard to aforesaid site bearing No.99. The second respondent prior to the filing of private complaint had already approached Civil Court and in the suit filed by the second respondent the application for temporary injunction has been rejected. Whereas, on the application for temporary injunction filed by the petitioner in the suit filed by him in O.S. No.6486/2020 against the second respondent, order of temporary injunction is already granted in his favour. The grievance made in the complaint is primarily with regard to trespassing the property by the petitioner. 8 Crl.P.No.1119/2021 Since the petitioner is already before the Civil Court and order of temporary injunction having been passed in favour of the petitioner herein, the allegation of trespassing prima facie cannot be entertained.
8. The Hon'ble supreme court in the case of MOHAMMED IBRAHIM & OTHERS Vs. STATE OF BIHAR & ANOTHER reported in (2009)8 SCC 751 has observed that if the dispute between parties is civil in nature then the criminal complaint lodged by giving the color of criminal offence should not to be entertained. On perusal of the private complaint filed by the second respondent which is referred by the Jurisdictional Magistrate under Section 156(3) of Cr.P.c. it is seen that there is no mention made in the said complaint with regard to compliance of Section 154(1) and 154(3) of Cr.P.C. Such a complaince is mandatory, prior to the filing of private complaint as held in the case of PRIYANKA SRIVASTAVA (Supra). Absence of the same 9 Crl.P.No.1119/2021 would render the complaint defective and the learned magistrate ought not have passed order of reference under Section 156(3) of Cr.P.C. Non compliance of Section 154(1) and 154(3) is a incurable defect which would vitiate the proceedings.
9. Under these circumstances having regard to the above narrated facts and the pronouncements of Hon'ble Apex Court referred to above, I am of the considered opinion that continuation of criminal proceedings against the petitioner would amount to abuse of process of law and for the purpose of securing the ends of justice, it is just and necessary to quash the entire proceedings as prayed for by the petitioner. Accordingly I proceed to pass the following ORDER i. Criminal petition is allowed.
ii. the entire proceedings in PCR.No.13205/2020 pending on the file of I Addl. 10 Crl.P.No.1119/2021 C.M.M. at Bengaluru and the FIR in Crime No.6/2021 registered by Hebbal Police Station for the offences punishable under Sections 420 and 447 of IPC is quashed as against the petitioner.
Sd/-
JUDGE RKA