Karnataka High Court
Liyakat Nannusab Avati vs The State Of Karnataka on 22 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 102335 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 102335 OF 2018
BETWEEN:
1. LIYAKAT NANNUSAB AVATI
AGE:56 YEARS,
OCC:BUSINESS,
R/O:NEAR DANAMMA TEMPLE
JAMKHANDI, BAGALKOT
2. ABOOBAKAR ABDULKHADAR ZARE
AGE:55 YEARS,
OCC:DRIVER AUTORICKSHAW,
R/O JAMKHANDI, BAGALKOT
3. MUBARAK ABOOBAKAR AWATI
AGE:54 YEARS,
OCC: DRIVER AUTORICKSHAW
R/O: MOMIN GALLI, JAMKHANDI,
BAGALKOT
4. MEHAMOOD HAJARATSAB MOMIN
AGE:53 YEARS,
OCC:BUSINESS,
Digitally signed
R/O:AZAD NAGAR,
VN
by V N BADIGER
Location: JAMKHANDI, BAGALKOT
DHARWAD
BADIGER Date:
2022.04.16
17:20:37 +0530
5. HUSEN HASANSAB ATTAR
AGE:64 YEARS,
OCC:BUSINESS,
R/O:ZANDE GALLI,
JAMKHANDI, BAGALKOT
6. NOORMOHAMMAD AMARUDDIN MURSAL
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CRL.P No. 102335 of 2018
AGE:51 YEARS,
OCC:BUSINESS,
R/O MOMIN GALLI,
JAMKHANDI, BAGALKOT
7. HUSEN HASANSAB TINMAKER
AGE:56 YEARS,
OCC:BUSINESS,
R/O NEAR JAMIA MASJID,
JAMKHANDI, BAGALKOT
8. USMANGANI GUDUSAB DILAWAR
AGE:55 YEARS,
OCC:BUSINESS,
R/O:BHARPET GALLI,
JAMKHANDI, BAGALKOT
9. NAJIB HUSENSAB ALAGUR
AGE:65 YEARS,
OCC:BUSINESS,
R/O:PENDARI GALLI
JAMKHANDI, BAGALKOT
10. DASTAGIR NABISAB SAIYYAD
AGE:50 YEARS,
OCC:BUSINESS,
R/O:BHOVI GALLI, JAMKHANDI,
BAGALKOT
11. KASIMSAB MAKBULSAB AWATI
AGE:62 YEARS,
OCC:BUSINESS,
R/O:AWATI GALLI,
JAMKHANDI, BAGALKOT
12. MAHMAD RAJASAB SHEIKH
AGE:58 YEARS,
OCC:BUSINESS,
R/O DARGA COLONY,
JAMKHANDI, BAGALKOT
13. SHAMSUDDIN SAIDUSAB AWATI
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CRL.P No. 102335 of 2018
AGE:76 YARS,
OCC:BUSINESS,
R/O:MOMIN GALLI,
JAMKHANDI, BAGALKOT
...PETITIONERS
(BY SRI. S.H.MITTALKOD, SRI. V.S.KOUJALAGI, SRI. M.L.VANTI
& SRI. ANAND ASHTEKAR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
JAMAKHANDI TOWN POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
2. DAWOOD S/O ABBASAB MUJAVAR
AGE:39 YEARS,
OCC:PRIVATE SERVICE,
R/O:MOMIN GALLI,
JAMKHANDI, BAGALKOT
...RESPONDENTS
(BY SRI. RAMESH CHIGARI, HCGP FOR R1
SRI. M.C.HUKKERI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE PROCEEDINGS AS AGAINST THE
PETITIONERS IN C.C.NO.23/2018 (PCR NO.58/2017) PENDING
ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC COURT,
JAMKHANDI, FOR THE OFFENCES P/U/S 188, 193, 419, 420,
265, 268, 471 R/W SEC. 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 102335 of 2018
ORDER
Respondent No.2 filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973, alleging that the petitioners, on the basis of the concocted documents, created a Committee by name Masjid-E- Huseniya and obtained approval of the Wakf Board and also obtained a building permission to construct a Mosque on Sy.No.4790 measuring 1 acre 21 guntas though the said land is reserved as burial ground for Muslim community.
2. The learned Magistrate referred the matter to the jurisdictional police for investigation under Section 156(3) of the Code of Criminal Procedure, 1973. The Police after conducting the investigation, filed a charge sheet for the offences punishable under Sections 143, 147, 188, 193, 19, 420, 468, 471 read with Section 149 of the Indian Penal Code, 1860. The learned Magistrate took cognizance of the offences punishable under Sections 188, 193, 419, 420, 265, 268, 471 read with Section 34 of IPC against the -5- CRL.P No. 102335 of 2018 petitioners and issued summons to the petitioners- accused. Taking exception to the same, this petition is filed.
3. The learned counsel for the petitioners submits that the allegations made in the complaint and in the charge sheet do not disclose the commission of the offences alleged against the petitioners. He further submits that the offences alleged against the petitioners are cognizable offences. Hence, the complaint filed by the second respondent without complying with the requirements contained under Sections 154(1) and 154(3) of Cr.P.C. is not maintainable in view of the decision of the Hon'ble Apex Court in the case of Priyanka Srivastava and Another Vs. State of Uttar Pradesh reported in (2015)6 SCC 287. He further submits that the Committee having been approved by the Wakf Board, the complaint filed by respondent No.2 is not maintainable.
4. On the other hand, the learned counsel appearing for respondent No.2 would submit that the -6- CRL.P No. 102335 of 2018 petitioners by creating concocted documents formed a Committee and obtained approval from the State Wakf Board and also obtained building permission to construct a Mosque on the land which is reserved as a burial ground for Muslim community. Hence, he submits that the charge sheet material clearly discloses commission of the offences alleged against the petitioners.
5. The learned High Court Government Pleader appearing for the respondent-State would reiterate the submissions made by the learned counsel for respondent No.2.
6. I have considered the submissions made by the learned counsel for the parties.
7. The allegations made in the complaint is that the petitioners by creating concocted documents formed a Committee and obtained approval from the Wakf Board and also obtained building permit to construct a Mosque on the land which is reserved as a burial ground for the -7- CRL.P No. 102335 of 2018 Muslim community. Respondent No.2, having not challenged the approval granted by the Wakf Board approving the constitution of the Committee and also the permission obtained to construct the Mosque on the land in question cannot maintain the complaint lodged against the petitioners for concocting the documents to create the Committee and also for obtaining permission for construction of Mosque.
8. Even otherwise, in the absence of any injury or loss caused to respondent No.2 or public in general, the complaint filed against the petitioners for the aforesaid offences is not maintainable. So as to constitute an offence under Section 420 of IPC, there must be a specific allegation that the intention of the petitioners-accused, from the inception i.e., creating the documents, was to cheat respondent No.2 or the public. In the absence of any specific allegation, the charge sheet filed against the petitioners for the offence punishable under Section 420 of IPC is without substance.
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9. The offences alleged against the petitioners are cognizable. Hence, respondent No.2 before filing a private complaint was required to approach the jurisdictional police to register the FIR against the petitioners and in the event of refusal to register the FIR, the complainant was required to file a complaint in writing or by post to the higher Officer. In absence of an affidavit filed to that effect, the complaint filed by the second respondent is not maintainable in view of decision of the Hon'ble Apex Court in the case of Priyanka Srivastava (supra). Accordingly, I pass the following:
ORDER The criminal petition is allowed. The impugned proceedings in C.C. No.23/2018 pending on the file of the Principal Senior Civil Judge and JMFC, Jamkhandi, as against the petitioners herein, is hereby quashed.
Sd/-
JUDGE KMS