Karnataka High Court
Sri. Shivashankrappa S/O Krishnappa ... vs The State on 17 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 101157 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO.101157 OF 2019 (482)
BETWEEN:
SHRI. SHIVASHANKRAPPA,
S/O KRISHNAPPA BANDARI
AGE: 38 YEARS, OCC: P.SERVICE,
RPTD BY CHAIRMAN
HARIJANA HITAVARDHAKA SANGH (R)
STATION ROAD-RAJAGOPAL NAGAR,
HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD.
...PETITIONER
(BY SRI. HEMANTHKUMAR L.HAVARAGI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
TOWN POLICE STATION HUBBALLI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
11.04.2018 PASSED BY THE II-ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD, IN SUMMARY NO.04/2017, AND
RECALL THE EVIDENCE DATED 23.12.2017, AND SUMMONSED
TO DHARWAD DISTRICT ADMINISTRATION FOR EVIDENCE ON
ACQUISITIONS PROCEEDINGS AND ALSO SPECIAL PROVISION
OF THE SC/ST (PREVENTION OF ATROCITIES) ACT, 1989,
SC/ST (PREVENTION OF ATROCITIES) RULES 1995.
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CRL.P No. 101157 of 2019
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Hemanthkumar L.Havaragi, learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State on admission and perused the records.
2. The present petition is filed under Section 482 of Cr.P.C with the following prayer :-
"To set aside the order dated 11.04.2018 passed by the II-Addl. District and Sessions Judge, Dharwad, in Summary No.04/2017, and recall the evidence dated 23.12.2017, and summonsed to Dharwad District Administration for evidence on acquisitions proceedings and also special provision of the SC/ST (Prevention of Atrocities) Act, 1989, SC/ST (Prevention of Atrocities) Rules 1995."
3. The brief facts of the case are as under :-
A complaint came to be lodged by Sri Shivashankar Bhandari which was registered in Crime No.164/2016 for the offences punishable -3- CRL.P No. 101157 of 2019 under Sections 3(1) (5), 3(1) (15), 3(2) (vii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Sections 166, 167, 200, 321, 403, 503, 504 of I.P.C.
4. Gist of the complaint averments reveal that in Rajagopalnagar, Station Road, Hubballi, there exists a property bearing CTS No.2384 to 2814 to the extent of 4 acres which is a private property. On 01.10.1977, Slum Clearance Board declared the same as slum and 120 hutments were present at that point of time and all belongs to Madiga community/scheduled caste community. On 11.06.2006, General Manager, Divisional Manager, Assistant Divisional Manager and Railway Estate Manager came to the said property and straight away started evicting the people from the said land and they have demolished all 120 hutments and thrown away the people from the said place stating that it is the railway property. There was a Sangha in the said area which was also running a school. -4- CRL.P No. 101157 of 2019 Notices were also issued to the school and on 09.01.2016, the entire area was cleared with a earthmover. Therefore, the complainant sought for action against the accused persons mentioned in the said complaint. Police after registering the case thoroughly investigated the matter and filed 'B' report.
Notice of the 'B' report was served on the complainant. The complainant filed protest petition before the Special Court and the learned Judge in the Special Court has recorded the sworn statement of the complainant and also permitted the complainant to rely on the documents. When the matter stood thus, an application came to be filed under Section 311 Cr.P.C. with the following prayer:
"Wherefore, this Hon'ble Court may be pleased to recall the evidence dated 23.12.2017, and summonsed to the Deputy Commissioner/Spl. Land Acquisition Office, Dharwad, 3, the Tahasildar, Hubballi and 4. The -5- CRL.P No. 101157 of 2019 Commissioner, Commissioner of the Hubballi-Dharwad Municipal Corporation, Hubballi, Commissioner Hubballi-Dharwad Police Commissionrate, Hubballi Assistant Police Commissioner, (Investigation Officer) and Special Public Prosecutor appointed under Section 4 of the SC/ST (P A) Rules 1995, for evidence on acquisitions proceedings and also Special Provision of the SC/ST (Prevention of Atrocities) Act 1989, SC/ST (Prevention of Atrocities) Rules 1995."
The said application was resisted and learned Judge by order dated 11.04.2018 rejected the application and posted the matter to hear the arguments on acceptance of 'B' report or otherwise.
Being aggrieved by the rejection of application filed under Section 311 Cr.P.C., the present petition is filed with the aforesaid prayer.
5. In the petition, following grounds have been raised:-
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• That, the findings given, conclusion arrived at, and the very orders by the court below are totally arbitrary, erroneous and not sustainable in law and as such liable to be set-aside.
• That, the petitioner has filed an application under section 311 of Cr. P. C for issuance of written summons to the Dharwad District Administration for supporting complainant evidence, the Trial Court has not considered on merit erroneously dismissed an application as not maintainable at this stage.
• It is further submitted that, the complainant has filed an application under section 311 of Cr. P. C for supporting of the complainant.
"Under section 311 of Cr. P.C Provides that, Power to Summon material witness, or examine person
present. Any Court, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any -7- CRL.P No. 101157 of 2019 person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the Just decision of the case".
• That, the complainant is relied on the Judgment of the Supreme Court of India in the Case of Vijay Kumar V/s State of U.P reported at [2011]11 S.C.R 893. That Section 311 of Cr. P. C consists of two parts, viz., (1) giving direction to the Court to examine the witness at any stage; and (2) the Mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables and in certain of the case. The Section enables and in certain circumstances, imposes on the Court duty of summoning witnesses who would have been otherwise brought before the Court. This Section confers a wide discretion on the Court to act as the exigencies of justice require.
• It is further submitted that, the Complainant filed an application under -8- CRL.P No. 101157 of 2019 section 311 of Cr. P. C for summoned to the Dharwad District Administration for supporting the complainant case that, Whether the Dharwad District Administration has followed the law and order, Special Provision of SC/ST (PA) Act 1989 and Rules 1995. Further the provision of under Sections 16 and 17 of Railways Act, 1989.
• It is submitted that, Documents Shows that, the Disputed property Bearing CTS Nos. 2384 to 2814 situated at station road privet property-Rajagopal Nagar, Jakati Katti, Digamber Jain boarding, Moorusavira Math, Hari Anta credit society and etc., issued by the City Server, Huballi not a railway property. If it is a Railway property by way of acquisition proceedings or leased, the Special Provision of the SC/ST (prevention of Atrocities) Act 1989 is applicable to Dharwad District Administration or not, therefore, requires for Evidence of the District Administration for supporting of the complaint.-9- CRL.P No. 101157 of 2019
• II. PROVISION OF LAW • 1. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989.
• 2. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995.
• 3. Railway Act, 1989.
• 1. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 • A. That, the complainant and his community members are belongs to madiga community which is notified as Scheduled caste under Article 341 of the constitution of India, and also the State, the railway officers have demolished 120 huts belongs to madiga communities. Who are residing at huts in Jakatikatti rename Bangichall thereafter it's called Station Road now newly called as Rajagopalanagar since from 150 200 years above.
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• i). Under Section 3(1) (iv) old Act.
Amendment Act 3(1)(0) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 provides that, wrongfully occupies or cultivates any land, owned by, or in the possession of or allotted to, or notified any competent authority to be allotted to, a member of Scheduled Caste or a Scheduled Tribe • ii). Under Section 3(1) (v) old Act.
Amendment Act 3(1)(g) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 provides that: wrongfully dispossesses a member of Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom • iii). Under Section 3(1)(xv) amended Section 3(1)(a) of The Scheduled Caste and Scheduled Tribe (Prevention of
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Atrocities) Act 1989 provides that, force or causes a member of Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residency, • B. That the Complainant and his community members, who are residing at huts in privet property or Government property or even though railway property i.e., privet property Jakatikatti rename Bangichall thereafter it's called Station Road now newly called as Rajagopalanagar even though railway property since from 150-200 years above. The railway officers have demolished 120 huts belongs to madiga communities therefore, the railway authority has committed an offence punishable under section 3(1)(iv), 3(1)(v), 3(1)(xv), 3(2)(vii) of the SC/STIP A) Act 1989, And under Sec 166, 167, 200, 321, 403, 503 and 504 of 1.P.C. • 2. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995,
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• a. The Dharwad District Administration has not taken a steps under Rule 6 The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995, and the Dharwad District Administration has supported to the Railway Authority (suomoto complaint has not registered) • b. The Dharwad District Administration has not taken a immediate steps under Rule 7 of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995, • c. The Dharwad District Magistrate and Superintendent of police/Commissioner of Police have not visit the Place or area where the atrocity under Rule 12(1) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995, • d. The Dharwad District Magistrate and Superintendent of police/Commissioner of Police have not directed to the concern police station for registration of FIR as per under Rule 12(2) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995,
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• e. The Dharwad District Magistrate and Superintendent of police/Commissioner of Police have not investigation officer immediately as per under Rule 12(3) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995, • f. The Dharwad District Administration has not make arrangements for providing immediate relief in cash or in kind of both to the victims of atrocities, as per under Rule 12(4) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) 1995, • g. That, after registered of the FIR, the District Magistrate and the office in charge of the prosecution have not review position of cases registered under the Act and have not submit a monthly report on or before 20 day of each subsequent month as per under Rule 4(4) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules 1995, • h. The District Administration have committed as offence punishable under
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section 3(1)(xv), 3(2)(vii) and 4 of the scheduled castes and the scheduled Tribes (Prevention of Atrocities) Act, 1989 • 3. Railway Act, 1989.
• A. It is submitted that, the Dharwad District Administration has not acquired the disputed land under section 17 of the Railway Act, 1989 • B. It is further submitted that, the Railway Authority has not taken a construction permission of the Local Body under section 17 of the Railway Act, 1989 • C. It is humbly submitted that, the present accused No. 1 to 4 i.e., 1. The Railway General Manager, South Western Railway. Hubli, 2. The Divisional Railway Manger, South Western Railway, Hubli 3. Assistant Divisional Railway Manager, South Western Railway, Hubli, 4. Railway Estate Manager, South Western Railway, Hubli, these officers have not comes under public servant within the meaning
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of section 21 of the Indian Penal Code (45 of 1860), they have working under the Railway Board. Only the Railway Commissioner is to be public servant • D. That, under section 8 of the Railways Act 1989 provides that, the commissioner shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) • E. It is submitted that, the Accused No. 1 to 4 are not comes under Section 197 of Cr. P. C. Therefore, the prosecution permission under Section 197 of Cr. P. C is not applicable above these Accused No. 1 to 4.
• 6. It is submitted that, a) When the Railway Administration has given a proposal to the Dharwad District Administration requesting land for public purpose to the construction of the new Railway Station in Hubblli under section 17 of the Railway Act 1989?.
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CRL.P No. 101157 of 2019 • b) When the Deputy Commissioner Dharwad has forwarded the same to the Government? Thereafter, when the Government has given permission to the Deputy Commissioner?
• c) When the Assistant Commissioner/Special Land Acquisition officer has started the acquisition proceeding?
• d) When the Assistant Commissioner/ Special Land Acquisition officer has handed over to the railway authority?
• e) When the Dharwad District Administration has given construction
permission of the New Railway Station to the Railway authority? In this regard the Investigation officer has not investigated the Land acquisitions proceedings properly and he blindly submitted a "B" Report.
• f) It is submitted that, the complainant Case is registered under special provision of SC/ST (Prevention of Atrocities) Act 1989. Therefore, Evidence of the Deputy
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CRL.P No. 101157 of 2019 Commissioner/District Magistrate, Dharwad, the Assistant Commissioner/ Spl. Land Acquisition Office, Dharwad, the Tahasildar, Hubballi and Commissioner of the Hubballi Dharwad Municipal Corporation, Hubballi, for supporting of the evidence • It ought to have been that by plain reading of the complaint and FIR and charge sheet, it clearly shows that the ingredients of the alleged offences are attracted.
6. Reiterating the grounds urged in the petition, learned counsel for the petitioner vehemently contended that there was no acquisition of the land and when once the area has been declared as a slum by the Slum Clearance Board, the authorities were required to issue necessary notification if the Railway Department wanted to acquire the land and without issuing any notice, on 11.06.2006, all of a sudden entered the land illegally and demolished 120 hutments and also gave notice to the school to be evicted. He further contended
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CRL.P No. 101157 of 2019 that there are no material documents evidencing the acquisition of the land and therefore, summoning of the Deputy Commissioner is very much necessary to establish the case of the complainant and sought for allowing the petition. He also contended that under Section 16 and 17 of the Railways Act, even if some unauthorized persons are occupying the railway property, they should be evicted with due process of law and railway authorities have not followed the said procedure and therefore, it is necessary to summon the D eputy Commissioner and get the necessary documents summoned through him and sought for allowing the petition.
7. Per contra, learned High Court Government Pleader opposes the petition prayer on the ground that the learned Special Judge has clearly opined in the impugned order at the time of recalling the order and closing the side of the complainant and permitting them to lead further evidence has not been properly established by the complainant and
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CRL.P No. 101157 of 2019 learned Judge has stated that 311 applications cannot be allowed at the time of recording sworn statement of the witnesses and therefore, sought for dismissal of the petition.
8. In view of the rival contentions of the parties, this Court perused the material on record meticulously.
9. On such perusal of the material on record, it is crystal clear that the complaint that has been given by the complainant-petitioner has been thoroughly investigated by the Deputy Superintendent of Police and filed the 'B' report. Notices of 'B' report was duly served on the complainant-petitioner. Complainant-petitioner filed a protest petition. Thereafter, the complainant has been examined as CW1 before the Special Court and a detailed sworn statement has been recorded and the documents were also marked as Exs.P1 to P37. Necessary documents having already been marked, the matter was posted for hearing on the acceptance
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CRL.P No. 101157 of 2019 of 'B' report or otherwise. At that stage, an application came to be filed under Section 311 Cr.P.C. with the prayer as referred to supra.
10. Learned trial Judge while rejecting the application, has held as under:
"2. It has been urged in the application that, the government authorities without following proper procedure for acquisition of the disputed land in possession of the complainant and his community people, have illegally taken over possession of the said land from these people who belongs to SC/ST community. Though, the complainant had filed complaint in Hubli Town P.S. Crime No.72/2017, the 10. without proper investigation has submitted 'B' false report which has been challenged by the complainant in the present case and already the complainant has led evidence in this regard and in order to prove his allegation the documents pertaining to the said disputed land are necessary. It is further urged that, the above said
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authorities who are involved in the said alleged act are required to come and depose before the court to show as to how the acquisition proceeding has been held and when the Railway Administration had given proposal for grant of the said land for construction of new Railway Station etc.
3. On hearing the application it is revealed that, the complainant at this stage of the proceeding has sought to summoning the above said authorities to show before the court, the procedure which they had followed while acquiring the disputed land from the possession of these people. It is relevant to note that the court has accorded an opportunity to the complainant to prove before the Court as to how the 'B' report submitted in this case is false and without any proper investigation. Accordingly, he has deposed before the Court and has also adduced evidence of other supporting witnesses and has produced the documents. It is to be noted that, the court is still at the stage of taking the cognizance of the
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alleged offences against the accused persons. It is also to be noted that, the court is yet to consider as to whether there yet are prima facie materials made out by the complainant to proceed against the accused and as to how the 1.O. has filed 'B' report without following proper and without conducting proper enquiry. Under such circumstances the court is not expected to go in-to the merits of the case. Under the present L.A. the complainant has sought for summoning the above said authorities to depose before the court those aspects which are touching the merits of the case. The complainant has sought for summoning these authorities to come and depose before the court with regard to the so called procedure which they had followed while taking possession of the disputed land from these people. Whether or not such procedure was followed by the government authorities is yet another aspect which cannot be gone into at this stage. The complainant has to show and prove at the first instance as to how the 1.0. has committed errors in conducting
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investigation and in filing 'B' false report. Unless and until that material aspect is proved before the Court by the complainant, the so called documents and the evidence of those government authorities cannot be insisted. Hence, the application at this juncture is found to be devoid of merits and hence the following:
ORDER The application filed by the complainant U/s 311 of Cr.P.C. is hereby rejected.
To hear on 'B' report by 25.4.2018."
11. As could be seen from the order passed by the learned Special Judge, the procedure that has been followed by the learned Special Judge is perfectly in order with the scheme of the Code of Criminal Procedure and summoning the authorities at the stage of recording the sworn statement is premature and therefore, he has rightly rejected the application. By rejection of the application, no
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CRL.P No. 101157 of 2019 prejudice has been caused to the complainant inasmuch as already 37 documents have been relied on by the complainant and sworn statement of the complainant has also been recorded. Further no decision has also been taken on acceptance of 'B' report or otherwise as the case is now posted only for hearing on acceptance of 'B' report or otherwise. As such, the rights of the parties is also not finally settled. Therefore, this Court is of the opinion that the grounds urged in the petition are not sufficient to set aside the order dated 11.04.2018 passed by the learned Magistrate and allow the criminal petition by exercising the power vested in this Court under Section 482 Cr.P.C. Accordingly, following:-
ORDER The Criminal Petition is rejected. However, rejection of this petition shall not affect the right of the petitioner in any manner and the learned Special Judge is entitled to independently assess the
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material on record while accepting the 'B' report or otherwise.
SD/-
JUDGE CLK