Karnataka High Court
Sadashiv Balagouda Patil vs The State Of Karnataka on 9 November, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9th DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101548/2015
c/w CRIMINAL PETITION NO.101494/2015
IN CRL.P. NO.101548/2015
BETWEEN:
1. SADASHIV BALAGOUDA PATIL
AGE : 58 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
2. ANNASAHEB @ RAOSAHEB
S/O MALAGOUDA PATIL
AGE : 63 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
3. ANIL SHIVAGOUDA PATIL
AGE : 46 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
4. MOHAN BHIMAGOUDA PATIL
AGE : 58 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
5. PANDURANG NINGAPPA KHOT
Crl.P. No. 101548/2015
2 C/W CRL.P. No.101494/2015
AGE : 39 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
... PETITIONERS
(BY SRI. M.R. SHINDE, ADVOCATE FOR PETITIONER NO.1.
SRI. AKSHAY A. KATTI, ADVOCATE FOR PETITIONER NOS.2 TO 5)
AND:
1. THE STATE OF KARNATAKA
(PSI SANKESHWAR POLICE STATION
TALUKA : HUKERI, DIST : BELAGAVI
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARANTAKA
DHARWAD BENCH
2. RAMAGOUDA BHIMAGOUDA RAYAGOUDAR
AGE : 67 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI
.. RESPONDENTS
(BY SRI.PRAVEEN UPPAR, HCGP FOR R1.
SRI. SRINAND A. PACHCHAPURE, ADV. FOR R2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CR.P.C. 1973 PRAYING TO QUASH THE CHARGE
SHEET FILED BY SANKESHWAR POLICE IN SANKESHWAR PS
CRIME NO.147/2014 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 504, 506 READ WITH SECTION
149 OF IPC CORRESPONDING CC NO.460/2014 ON THE FILE
OF THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC
SANKESHWAR TALUKA HUKERI, DIST. BELAGAVI IN THE
INTEREST OF JUSTICE INSOFAR AS PETITIONERS ARE
CONCERNED.
Crl.P. No. 101548/2015
3 C/W CRL.P. No.101494/2015
IN CRL.P. NO.101494/2015
BETWEEN:
1. SADASHIV BALAGOUDA PATIL
AGE : 58 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
2. SHIVANAND BALAGOUDA PATIL
AGE : 51 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340, TQ : HUKERI, DIST : BELAGAVI.
3. ANNASAHEB @ APPASAHEB BALAGOUDA PATIL
AGE : 49 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI.
4. SARJAPPA @ PANDURANG NINGAPPA KHOT
AGE : 39 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKKERI, DIST : BELAGAVI.
... PETITIONERS
(BY SMT. REKHA PATIL, ADVOCATE FOR PETITIONER NO.1
SRI. AKSHAY A. KATTI, ADVOCATE FOR PETITIONER NOS.2 TO 4)
AND:
1. THE STATE OF KARNATAKA
(PSI SANKESHWAR POLICE STATION
TALUKA : HUKERI, DIST : BELAGAVI
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARANTAKA, DHARWAD BENCH
2. RAMAGOUDA BHIMAGOUDA RAYAGOUDAR
AGE : 67 YEARS, OCC : AGRICULTURE,
R/O : NERLI-591 340
TQ : HUKERI, DIST : BELAGAVI
.. RESPONDENTS
(BY SRI.PRAVEEN UPPAR, HCGP FOR R1.
Crl.P. No. 101548/2015
4 C/W CRL.P. No.101494/2015
SRI. SRINAND A. PACHCHAPURE, ADV. FOR R2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF THE CR.P.C. 1973 PRAYING TO QUASH THE CHARGE
SHEET FILED BY SANKESHWAR POLICE IN SANKESHWAR PS
CRIME NO.267/2014 CORRESPONDING CC NO.143/2015 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 447, 427,
504 AND 506 READ WITH SECTION 34 OF IPC ON THE FILE
OF THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC
SANKESHWAR TALUKA HUKERI, DIST. BELAGAVI IN THE
INTEREST OF JUSTICE INSOFAR AS PETITIONERS ARE
CONCERNED.
THESE CRIMINAL PETITIONS COMING ON FOR
HEARING THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
These two petitions have arisen out of two alleged criminal incidents said to have taken place on two different dates, however, as against the very same complainant i.e. respondent No.2 herein. Apart from the complainant, petitioner No.1 in both the petitions Sri.Sadashiv Balagouda Patil and one more petitioner Sri. Annasaheb @ Raosaheb are the accused in both the alleged crimes. Further, in both these petitions, the petitioners have sought for quashing of the criminal Crl.P. No. 101548/2015 5 C/W CRL.P. No.101494/2015 cases said to have been pending against them in the Court of the learned Principal Civil Judge and JMFC Sankeshwar (hereinafter for brevity referred to as the 'trial Court'), as such, both these petitions have been treated as connected matters.
2. The summary of the charge sheet in Criminal Petition No.101548/2015 is that on 01.05.2014 at about 9.30 am in a public road in front of the house of the complainant, all the petitioners herein forming an unlawful assembly, came near the house of the complainant and abused the complainant and his sons in filthy language and threatened them of their life, in case, they fail to give them the land in dispute. A complaint was filed by respondent No.2 with the respondent No.1-police, which after investigation, has filed charge-sheet for the offence punishable under Sections 143, 147, 504 and 506 of the Indian Penal Code, 1860(hereinafter for brevity referred to as the Crl.P. No. 101548/2015 6 C/W CRL.P. No.101494/2015 'IPC') which is now said to be pending in C.C. No.460/2014.
3. In Criminal Petition No.101494/2015 also the very same respondent No.2 is the complainant and at his complaint, after investigation, the first respondent- police have filed charge-sheet for the offence punishable under Sections 447, 427, 504 and 506 read with Section 34 of IPC.
4. The summary of the allegations made in the charge-sheet is that on 28.09.2014 at about 8.30 am, the accused in the charge-sheet (petitioners in the said criminal petition) criminally trespassed into the land of the complainant bearing Sy.No.199/K/1 in Nerli village and destroyed the growing groundnut crop in the land causing loss to a tune of `2,000/- to the complainant and also abused the complainant when he tried to resist them and also threatened him of dire consequences. The Crl.P. No. 101548/2015 7 C/W CRL.P. No.101494/2015 said charge sheet is now said to be pending in Criminal Case No.143/2015 in the trial Court.
5. The accused in both the criminal case have filed these two petitions seeking quashing of the criminal case against them.
6. Learned counsel for the petitioners in his arguments in both the petitions submitted that the complainant is a habituator of lodging false complaints and that the very reading of his complaint and further statement would go to show that there is no consistency in his allegations which lacks bona fide in his statements and gives rise to a serious doubt about the happening of the alleged incident. He further submits that with respect to the alleged total number of accused said to have gone to his place, the complainant has given a divergent statement in his complaint as to that of his further statement which itself makes the complaint a suspicious one. He also submits that the alleged Crl.P. No. 101548/2015 8 C/W CRL.P. No.101494/2015 eyewitnesses to the incident are none else than the two sons of the complainant himself. Finally stating that, to constitute an assembly into an unlawful assembly, in the instant case, the only provision that would attract is Section 141 fifth category, however, in the absence of any allegation regarding use of criminal force, it cannot be held that there was an unlawful assembly, as such, the alleged offence under Sections 143, 147 and 149 are not attracted. Still, the Investigating Officer has filed charge-sheet incorporating those offences also. Learned counsel concludes his arguments submitting that admittedly, there is pendency of civil litigation with respect to the very same disputed land between the parties. Thus, in order to take undue advantage of the same and against the finding of the civil court that the present accused is in possession of the suit property, the complainant and his family have filed false criminal case against them.
Crl.P. No. 101548/20159 C/W CRL.P. No.101494/2015
7. Learned High Court Government Pleader for respondent No.1 and the learned counsel for respondent No.2-complainant in their arguments submitted that whether the alleged incident has taken place or not is purely a subject matter of trial. However, the fact remains that the Investigating Officer, after due investigation, has filed charge-sheet against the accused. They further submit that whether congregation of the accused may be termed as an unlawful assembly is also a matter to be considered and decided only after a full fledged trial. They further submit that the finding given by the trial Court in the original suit since has been challenged by the complainant before the competent court in a regular appeal, it cannot be held that there is a conclusive finding regarding possession of the property, in a Court of law.
8. According to the complainant, two criminal incidents have taken place with respect to the disputed Crl.P. No. 101548/2015 10 C/W CRL.P. No.101494/2015 property bearing R.S.No.199/K/1 of Nerli village. According to the charge-sheet papers, on 01.05.2014, in the first incident, the accused therein approaching the complainant forming an unlawful assembly and threatening him of dire consequences has taken place. The second incident of alleged criminal trespass into the disputed land which the complainant claims to be under his cultivation and further the alleged act of causing damage to the growing crops of groundnut in the said land is alleged to have taken place on 28.09.2014 at 8.30 am.
No doubt with respect to both these incidents, the complainant is the very same person i.e. respondent No.2, who in his complaint at the first instance has stated that the group which came to him was a large group. However, in his further statements given on the very same day in one case and on the very next day in another case has modified his version of allegations confining the alleged intruders/accused to only 4 to 5 in Crl.P. No. 101548/2015 11 C/W CRL.P. No.101494/2015 number. No doubt that prima facie gives rise to a doubt as to whether the complainant has noticed the alleged occurrence of the incident properly.
However, the alleged statements said to have been given by the eyewitnesses to the incident stands in support of the further statement given by the complainant regarding the total number of accused persons. Merely because the complainant has given the total number of alleged intruders/culprits in higher number than what the Investigating Officer has finally concluded in the charge sheet would itself in all the cases not take away the bona fides in the complaint or truthfulness in the charge-sheet. However, that aspect would be one of the essential aspect which can be agitated in the trial Court. Therefore, the first contention of the learned counsel for the petitioners that the alleged discrepancies in mentioning the total number of alleged intruders near the house or to the landed property would make Crl.P. No. 101548/2015 12 C/W CRL.P. No.101494/2015 trustworthiness of the complaint doubtful is not acceptable.
9. The other contention of the learned counsel for the petitioner is that the alleged eyewitness in both the case are mainly the children of the complainant. No doubt the charge-sheet shows, among other alleged eyewitnesses, two eyewitnesses are the children of the complainant. Incidentally, in the said case which is CC No.460/2014, the alleged incident is said to have taken place in front of the house of the complainant, as such, inmates of the house would be generally be the first or the main eyewitnesses to the alleged incident. Therefore, merely because CWs.4 and 5 are said to be eyewitness in the said case would not by itself make the entire charge sheet as suspectable one.
In the other case, i.e., CC No.143/2015, the incident is said to have taken place in the disputed land. Apart from CWs.4 and 5 who are shown as eyewitnesses to the incident, Crl.P. No. 101548/2015 13 C/W CRL.P. No.101494/2015 CWs.6 and 7 have also been shown as eyewitnesses to the alleged incident. Therefore, the second argument of the learned counsel for the petitioners that eyewitnesses are the family members of the complainant, as such also, the charge-sheet loses its credibility, is not acceptable.
10. Learned counsel for the petitioners' third point of argument is about the non-attraction of Sections 143, 147 and 149 of IPC in CC No.460/2014. His argument is that in order to constitute an unlawful assembly, apart from there to be 5 or more persons, their common object must be one of the 5 objects mentioned in Section 141 of IPC. In the instance case, it is only the fifth common object mentioned in the said Section could be attracted and existence of criminal force or use of criminal force is a must for attracting the said forming of unlawful assembly. Since the same is lacking in the instant case, it cannot be held that there Crl.P. No. 101548/2015 14 C/W CRL.P. No.101494/2015 was an unlawful assembly and that Sections 143, 147 and 149 are attracted.
11. Section 141 of IPC defines unlawful assembly as below:
" 141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -
First.- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.- To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or Crl.P. No. 101548/2015 15 C/W CRL.P. No.101494/2015 other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do."
12. No doubt the Fifth form of unlawful assembly mentioned in the said section mentions that it is by means of criminal force or show of criminal force with an intention to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do, if an assembly is constituted, it becomes an unlawful assembly.
13. In the instant case, whether the alleged unlawful assembly in CC No.460/2014 made use of any criminal force would be a question to be decided in a later stage provided that the matter is slated for trial. However, it cannot be ignored of the fact that very same Crl.P. No. 101548/2015 16 C/W CRL.P. No.101494/2015 Section in its Third form of unlawful assembly mentions that the assembly of 5 or more persons if has got common object to commit any mischief or criminal trespass or other offences (emphasis supplied), the said assembly could be called an unlawful assembly. The charge sheet in CC No.460/2014 alleges that the group approached the complainant near his house and abused him in filthy language and threatened him of dire consequences in case if he does not hand over the possession of the disputed land in R.S. No.199/K/1 of Nerli village. For the alleged act of the accused abusing the complainant and his family members in filthy language in a public place and also threatening them, criminally intimidating the complainant and his family, the charge-sheet also has invoked Section 504 and 506 of IPC which are punishable under the penal law. Therefore, though the attraction of Sections 143, 147 and 149 would also be the subject matter of trial Crl.P. No. 101548/2015 17 C/W CRL.P. No.101494/2015 provided that later the trial is held, however, at this stage, it cannot be said that those Sections are not attracted since there is lacking of fulfillment of ingredients of Section 141 of IPC.
14. The last point of argument of learned counsel for the petitioners that admittedly due to pendency of civil litigations, the complainant in order to over power the accused has been filing false complaints against them is also without any reasoning can be held as without any basis. Accused No.1 is shown to be a former Chairman of the jurisdictional Gram Panchayat. The alleged civil litigation admittedly has not reached its finality and admittedly the accused are said to have preferred an appeal challenging the decree passed in the suit for bare injunction. Thus, merely because there is pendency of the civil litigation, it cannot be held that the criminal case are being falsely hoisted by the complainant against the accused.
Crl.P. No. 101548/201518 C/W CRL.P. No.101494/2015
15. In the light of the above observations, I do not find any reason to accept the contention of the learned counsel for the petitioners that the complainant is in the habit of filing false complaint only to harass the petitioners herein. On the other hand, I find reason to accept the argument of the learned counsel for the respondents that prima facie there are materials to proceed further in the criminal case and there are no reasons for interference by exercising power under Section 482 of Cr.P.C. at this stage.
Accordingly, I proceed to pass the following order.
ORDER Criminal Petition Nos.101548/2015 and 101494/2014 are dismissed.
Sd/-
JUDGE kmv