Karnataka High Court
Sri Sushil Kumar vs The Police Sub Inspector on 16 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 7692 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7692 OF 2021
BETWEEN:
1. SRI SUSHIL KUMAR
S/O MANAK CHAND,
AGED ABOUT 44 YEARS
RESIDING AT NO.38, 4TH MAIN ROD,
NEW KEMPEGOWDA LAYOUT,
KATRIGUPPE, BENGALURU SOUTH,
BANASHANKARI III STAGE,
BENGALURU - 560 085
2. SRI NOORULLA KHAN
S/O LATE ABDUL GANI
AGED ABOUT 55 YEARS
RESIDING AT NO.225,
5TH CROSS, 5TH MAIN ROAD,
L B SHASTRINAGAR
V.T.C., BENGALURU NORTH,
P.O.VIMANAPURA,
Digitally signed by SUB DISTRICT, BENGALURU
PADMAVATHI B K BENGALURU - 560 017
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA
(BY SRI. MURTHY D NAIK., SENIOR COUNSEL FOR
SRI MAHENDRA G, ADVOCATE)
AND:
1. THE POLICE SUB INSPECTOR,
BENGALURU METROPOLITAN TASK FORCE,
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CRL.P No. 7692 of 2021
STATE OF KARNATAKA AT
BENGALURU REP. BY ITS
LEARNED STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001
2. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA PALIKE
GANDHINAGAR SUB-DIVISION
DR. T.C.M ROYAN ROAD
BENGALURU - 560 009
...RESPONDENTS
(BY SRI. K.S.ABHIJITH., HCGP FOR R1;
SRI. RAMU S, ADVOCATE FOR R2;
SRI. T.PRAKASH, ADVOCATE FOR INTERVENING
APPLICANT / DEFACTO COMPLAINANT)
THIS CRL.P IS FILED U/S.482 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONBLE COURT MAY BE PLEASED TO i) QUASH THE FIR
BEARING CRIME NO.582019, AS PER ANNEXURE-A,
REGISTERED BY THE RESPONDENT NO.1-POLICE FOR THE
OFFENCE UNDER SECTION-436 (A) OF THE KARNATAKA
MUNICIPAL CORPORATION ACT, 1976, AS AGAINST THE
PETITIONERS; ii) PASS ANY SUCH ORDERS, DIRECTIONS
ETC., AS THIS HON'BLE COURT DEEMS FIT, IN THE
INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 7692 of 2021
ORDER
The petitioners are before this Court calling in question the crime that is registered in Crime No.58/2019 invoking Section 436(A) of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as 'the Act' for short).
2. Heard Sri.Murthy D. Naik, learned Senior Counsel appearing for the petitioners, Sri K.S.Abhijith, learned High Court Government Pleader appearing for respondent No.1, Sri.Ramu S., learned counsel appearing for respondent No.2 and Sri. T.Prakash, learned counsel appearing for the intervener, who has filed impleading application in the case at hand.
3. The brief facts that lead the petitioners to this Court in the subject petition as borne out from the pleadings are as follows:-
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The petitioners' purchase a property on behalf of their firm M/s Navakar from M/s Gladiator Commodities Private Limited situated at Kolkata by execution of a sale deed dated 9.05.2014. After purchase of the property, it appears, a complaint was made on 15-05-2017 by one P.Raju before the Bangalore Metropolitan Task Force ('BMTF'). The complaint was referred to the BBMP by BMTF for necessary action. Based upon the said complaint, the BBMP claims to have inspected the property and submitted its report on 20th August 2018. The said report absolved the petitioners of any encroachment of public property and the report was placed before the BMTF. Based on the report of inspection, the BMTF appears to have closed the proceedings against the petitioners.
4. After closure of the proceedings, the impleading applicant again registers a complaint before the BBMP. Once the case comes to be registered, the petitioners approached the civil Court in O.S.No.7501 of 2018 seeking -5- CRL.P No. 7692 of 2021 injunction against the impleading applicant over his interference with possession of the property of the petitioners. An injunction was granted by the civil Court on 19-02-2019 and the same is in operation even as on date. Therefore, the injunction that is operating is between the petitioners and the impleading applicant with regard to their respective rights.
5. As observed hereinabove, the impleading applicant registers the complaint on 26-02-2019 pursuant to which a notice was issued by the BBMP on 29-07-2019 to the petitioners. Challenging the said notice, the petitioners approached this Court in Writ Petition No.50141 of 2019. This Court had initially granted an interim order of stay of the notice and later allowed the petition on 9-03-2020 quashing the said notice on the ground that the petitioners were not heard in the matter and a direction was issued to hear the matter and pass appropriate orders. Before disposal of the petition, a complaint comes to be -6- CRL.P No. 7692 of 2021 registered by the impleading applicant before the BMTF. BMTF registers the crime against the petitioners in Crime No.58 of 2019 for offences punishable under Section 436 of the Act. Despite its registration on 16.09.2019, no investigation has taken place. It is the registration of the crime in Crime No.58 of 2019 for the aforesaid offence that drives the petitioners to this Court in the subject petition.
6. Learned Senior Counsel Sri Murthy D. Naik representing the petitioners would contend that the registration of crime is an abuse of process of law as the very same Assistant Executive Engineer who now seeks to register a crime against the petitioners had visited the property and submitted a report absolving the petitioners. Again the very same matter is raked up and a contrary report is given by the Assistant Executive Engineer. He would submit that this would be enough circumstance to quash the proceedings as the entire issue has now sprung -7- CRL.P No. 7692 of 2021 up only at the behest of impleading applicant. The learned senior counsel would further emphasise on the fact that for the last two years there has been no investigation conducted at all and, therefore, further investigation should not be permitted at this juncture.
7. On the other hand, the learned counsel representing BBMP would place on record plethora of documents along with affidavit of the Assistant Executive Engineer who conducted inspection earlier, who in his affidavit would seek to demonstrate that when the complaint again came about he had inspected the property along with the Assistant Director of Land Records, drew up a sketch and the result of inspection was encroachment of public road by the petitioners. It is therefore the counsel would contend that it is for the petitioners to come out clean.
8. Sri T.Prakash, learned counsel representing the impleading applicant has also filed documents to assist the -8- CRL.P No. 7692 of 2021 Court and would contend that there is encroachment. Admittedly, the earlier report was based upon wrong property documents that were shown by the petitioners and that is what is narrated by the concerned officer in his affidavit and therefore, further investigation be permitted to continue.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
10. The afore-narrated facts are not in dispute. The issue with regard to encroachment of a public road by the petitioners did loom large. A complaint was initially registered and inspection was also conducted by the Assistant Executive Engineer who claims to have inspected the property and found that there was no encroachment of public road by the petitioners. The communication reads as follows:
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"«µÀAiÀÄ:- ªÁqïð-96, gÀ ¤ªÉñÀ£À ¸ÀASÉå: 56 gÀ°è ¤ªÀiÁðt ªÀiÁqÀÄwÛgÀĪÀ PÀlÖqÀzÀ ªÀiÁ°ÃPÀgÀÄ 3x90 CrUÀ½zÀÄÝ gÀ¸ÉÛ eÁUÀªÀ£ÀÄß MvÀÄÛªÀj ªÀiÁrgÀĪÀ §UÉÎ ªÀgÀ¢ ¤ÃqÀĪÀ PÀÄjvÀÄ.
G7ÉèÃR:-1) Jrf¦/©JAnJ¥sï/¥ÉnµÀ£ï/135/2018, ¢:16.05.2018.
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ªÀÄÄAzÀĪÀgÉzÀAvÉ ¥À²ÑªÀÄzÀ gÀ¸ÉÛAiÀÄ 26 Cr CUÀ®«zÀÄÝ PÀæAiÀÄ ¥ÀvÀæ ºÁUÀÆ ªÀÄAdÆgÁzÀ £ÀPÉëAiÀÄ°è ¥À²ÑªÀÄ ¨sÁUÀzÀ ºÉÆgÀvÀÄÛ¥Àr¹ G½zÀ ªÀÄÆgÀÄ PÀqÉUÀ¼À°è ¸ÁªÀðd¤PÀ ¸ÀéAvÀ D¹Û EgÀĪÀÅzÀÄ £ÀªÀÄÆ¢¸À7ÁVgÀÄvÀÛzÉ. DzÀjAzÀ ¥À²ÑªÀÄzÀ gÀ¸ÉÛAiÀÄ°è AiÀiÁªÀÅzÉà MvÀÄÛªÀj DVgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀĪÀÅ¢®è. F J7Áè CA±ÀUÀ¼À£ÀÄß vÀªÀÄä CªÀUÁºÀ£ÉUÉ ºÁUÀÆ ªÀÄÄA¢£À ¸ÀÆPÀÛ PÀæªÀÄPÁÌV ¸À°è¸À7ÁV ¸ÀzÀj ¥ÀæPÀgÀtªÀ£ÀÄß PÉÊ©qÀ®Ä F ªÀÄÆ®PÀ PÉÆÃgÀ7ÁVzÉ."
11. Based upon this report, the BMTF closes the file that was pending before it and the said closure reads as follows:
- 10 -CRL.P No. 7692 of 2021
"§ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁqïð £ÀA.96 gÀ ¤ªÉñÀ£À ¸ÀASÉå 56 gÀ°è CPÀæªÀĪÁV ºÁUÀÆ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV PÉ.JA.¹ PÁAiÉÄÝAiÀÄ ¤AiÀĪÀÄUÀ¼À£ÀÄß G®èAX¹ gÀ¸ÉÛAiÀÄ°è 3.90 CrUÀ¼ÀµÀÄÖ eÁUÀªÀ£ÀÄß MvÀÄÛªÀj ªÀiÁr ªÀ¸Àw ¥ÀæzÉñÀzÀ°è C¥ÁmïðªÉÄAmï C£ÀÄß ªÀiÁtÂPï ZÀAzï £ÀÆgÀÄ7Áè SÁ£ï ªÀÄvÀÄÛ ¸ÀIJÃ7ï PÀĪÀiÁgï JA§ÄªÀgÀÄ JA.J¸ï.£ÀªÀPÁgï JA§ ºÉ¸Àj£À°è ¤ªÀiÁðt ªÀiÁqÀÄwÛgÀÄvÁÛgÉ F §UÉÎ «ZÁgÀuÉ £Àqɹ PÀæªÀÄ PÉÊUÉƼÀÄîªÀAvÉ ©.JA.n.J¥sï ¥Éưøï oÁuÉAiÀÄ°è zÀÆgÀÄ zÁR7ÁVgÀÄvÀÛzÉ.
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CRL.P No. 7692 of 2021
12. It appears that the impleading applicant had interfered with the possession of the petitioners concerning the public road. This drove the 1st petitioner to approach the civil Court in O.S.No.7501 of 2018 seeking injunction against the impleading applicant. The civil Court grants an injunction against the impleading applicant and the same is in operation as on date. The BBMP is not a party to the proceedings before the civil Court. The dispute before the civil Court is between the 1st petitioner and the impleading applicant. The issue in the lis is not concerning what is before the civil Court. The issue is with regard to the encroachment of a public road and not interference with the respective properties of the petitioners and the impleading applicant. Therefore, the BBMP is not bound by the injunction that is operating against the impleading applicant to conduct inspection with regard to the encroachment of a public road, more so in the light of the fact that the BBMP was not a party
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CRL.P No. 7692 of 2021before the civil Court. No doubt it is true that a complaint comes to be registered by the impleading applicant after the grant of injunction against him by the civil Court. That by itself would not be a circumstance to interfere with the crime now registered. Once notice is issued to the petitioners on a complaint being registered by the impleading applicant on 29-07-2019, the 1st petitioner did approach this Court in Writ Petition No.50141 of 2019 and this Court which had granted an interim order initially disposed of the writ petition in terms of its order dated 9.03.2020 reading:
"In the instant petition, petitioner has sought for quashing Annexure-F notice-2 dated 29-07-2019 issued by 2nd respondent/the Assistant Executive Engineer, BBMP where it is stated that petitioner has encroached on certain public property. In this regard, petitioner has not been heard before passing the impugned order dated 29.07.2019.
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2. Learned counsel for the respondent/BBMP on instructions fairly submitted that before issuing notice-2 dated 29-07-2019, petitioner has not been heard.
Accordingly, Writ Petition is allowed.
Annexure-F stands quashed. Liberty is
reserved to the respondent/BBMP to proceed in accordance with law after giving due opportunity to the petitioner to explain petitioner's case along with necessary documents. The above exercise shall be completed within a period of four months from to-day."
In terms of the aforesaid order this Court quashed the notice dated 27-09-2019 on the ground that the 1st petitioner was not heard and directed grant of opportunity of hearing to the 1st petitioner and pass appropriate order within 4 months from the date of receipt of a copy of the order.
13. It is thereafter the proceedings have been taken up by the BBMP by conduct of inspection of the property
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CRL.P No. 7692 of 2021and drawing up further proceedings. During the pendency of the writ petition supra a complaint had been registered by the BBMP before the BMTF on 16-09-2019 for offences punishable under Section 436A of the Act. Investigation could not take place in the said proceedings as the very notice issued to the petitioners on 29.07.2019 had been stayed by this Court, which ultimately came to be quashed in terms of the order dated 9.03.2020. Therefore, the contention of the learned senior counsel that there has been delay in conduct of investigation sans substance as the delay was on account of the petitioners themselves who had approached this Court and the very notice issued pursuant to registration of crime before the BMTF had been stayed. After the direction was issued by this Court to grant an opportunity of hearing to the petitioners, the BBMP conducts another inspection of the property and comes to conclude that there is encroachment of public road by the petitioners and the Assistant Executive Engineer has filed an affidavit to that effect before this
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CRL.P No. 7692 of 2021Court. Insofar as the earlier report submitted by the very same Assistant Executive Engineer which had absolved the petitioners is also explained in the affidavit contending that the earlier report was submitted on the documents furnished by the petitioners themselves who have hoodwinked the Assistant Executive Engineer. The explanation though cannot be termed to be satisfactory and since encroachment is now demonstrated by the subsequent report, I deem it appropriate to accept the affidavit subject to further proceeding and investigation in the matter.
14. In the light of the matter being at the stage of investigation, I do not find any ground to interfere at this stage as it would be open to the petitioners to knock the doors of appropriate judicial fora at the appropriate time. It is made clear that the observations made in the course of this order are only for the purpose of consideration of the case of the petitioners under Section 482 of the
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CRL.P No. 7692 of 2021Cr.P.C. The same shall not influence or bind the investigation that shall take place in the aforesaid crime number.
15. Accordingly, criminal petition stands disposed of with the aforesaid observations.
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JUDGE MDS List No.: 1 Sl No.: 2