Karnataka High Court
Sri.K.M.Kushalappa vs K.M.Anand on 18 January, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE H.P.SANDESH
CRIMINAL PETITION NO.4586 OF 2020
BETWEEN:
1. Sri K.M.Kushalappa
S/o Kattekodi Mallappa
Aged about 76 years
2. K.K.Dinesha
S/o K.M. Kushalppa
Aged about 39 years
Both are residents of
Karike Village
Bhagamandala Hobli
Madikeri Taluk
Kodagu District-571247.
... Petitioners
(By Sri. Gopala Krishnamurthy.C, Advocate)
AND:
K.M. Anand
S/o Kattekodi Mallappa
Aged about 71 years
R/a Karike Village
Bhagamandala Hobli
Madikeri Taluk
Kodagu District-571247.
... Respondent
(By Sri. Ranjan Kumar.K, Advocate)
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2
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in
C.C.No.10/2019 (321/2020) at Annexure-F pending on the file
of Additional Civil Judge and J.M.F.C., Madikeri for the
offences P/U/S 427, 447, 379 R/w 34 of IPC as against the
petitioners and etc.,
This Criminal Petition coming on for Admission, this day,
the court made the following through video conference:
ORDER
Heard the learned counsel for the petitioners and learned counsel for the respondent.
2. This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the criminal proceedings in C.C.NO.10/2019 (321/2020) for the offences punishable under Sections 427, 447, 379 read with Section 34 of IPC on the file of Addl. Civil Judge & JMFC, Madikeri.
3. The factual matrix of the case is that the complainant has filed a private complaint against the petitioners/accused for the offences punishable under Section 379 read with Section 34 of IPC which is numbered as P.C.R.No.198/2012. The matter was referred to Police for investigation. The Police, after 3 investigation have filed 'B' report and the same has been accepted and the same is questioned before this Court by filing criminal petition seeking to set aside and remit back to the same to the trial Court to consider the matter afresh. The learned Magistrate vide order dated 02.03.2020 after recording the sworn statement of the complainant and also considering the documents Exs.P1 to 13 have invoked Sections 427, 447, 379 read with Section 34 of IPC against the present petitioners as accused Nos.1 and 3.
4. The main contention of the petitioners before this Court is that the trial Judge has committed an error in invoking Sections 427, 447 of IPC. Even there is no prayer in the private complaint. The learned Judge misunderstood the judicial principles under the Criminal Procedure Code. The learned counsel also submits that earlier a cognizance was taken only for the office punishable under Section 379 read with 34 of IPC and while issuing the process under Section 204 of IPC, has 4 committed an error including the offences punishable under Sections 427, 447, 379 read with Section 34 of IPC before this Court.
5. Per contra, the learned counsel appearing for the respondent would submit that in the complaint, there is a specific allegation made in para 5 of the complaint with regard to trespassing of the land and committing the theft of fence which is valued for Rs.5,000/. The complainant was put to loss of more than Rs.10,000/- by the accused persons due to the said theft. The fact that they trespassed to the land and had committed the theft is not in dispute.
6. Having heard the respective counsel and also on perusal of the complaint, the specific allegation has been made in paragraph Nos.3 to 5 with regard to committing a theft of the fence worth Rs.5,000/-. No doubt, the learned Magistrate after filing the 'B' report recorded the sworn statement of the complainant and also examined one witness on behalf of the complainant. On perusal of 5 the documents Exs.P1 to 13, it is held that there are sufficient materials to proceed against the accused persons and hence, issued the process. While passing the order invoked Sections 427, 447 of IPC, there is no any reference in the order whether there are materials to proceed against these petitioners invoking Sections 427, 447 of IPC. The order of issuance of process for the offences punishable under Sections 427, 447 of IPC is very silent.
7. Having perused the contents of the complaint there is no averments to invoke Sections 427, 447 of IPC, therefore, I am of the opinion that the learned Magistrate has committed an error in invoking Sections 427, 447 of IPC and hence, it requires interference by this Court.
8. In view of the discussion made above, I pass the following order:
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ORDER
(i) The petition is allowed partly. The impugned order dated 02.03.2020 issuing process against the petitioners for the offences punishable under Sections 427, 447 read with Section 34 of IPC is hereby set aside. The process issued for the offence under Section 379 read Section 34 of IPC Is unaltered.
Sd/-
JUDGE GJM