Karnataka High Court
S M Alex vs State Of Karnataka on 14 August, 2013
Equivalent citations: 2014 (1) AKR 647
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos. 2682-83 OF 2012 (GM-POLICE)
CONNECTED WITH
CRIMINAL REVISION PETITION NO.392 OF 2012
IN W.P.NOS.2682-83/2012:
BETWEEN:
1. S.M. Alex,
Aged about 55 years,
Son of Late M.M.Alexander,
2. Rani M.Alex,
Aged about 51 years,
Wife of S.M.Alex,
Both are residing at
No.35, 2nd Cross,
D'Costa Square,
Cooke Town,
Bangalore - 560 084. ...PETITIONERS
(By Shri. C.V.Nagesh, Senior Advocate for Shri. Satyanarayana S
Chalke, Advocate)
2
AND:
1. State of Karnataka
by its Chief Secretary,
Vidhana Soudha,
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
2. Home Secretary,
Government of Karnataka,
Vidhana Soudha,
Dr. Ambedkar Veedhi,
Bangalore - 560 001.
3. Director General and
Inspector General of Police,
Karnataka State,
Nrupathunga Road,
Bangalore - 560 001.
4. Station House Officer,
BMTF,
BBMP Main Office,
Bangalore City.
5. Sri. R.P.Sharma,
Additional Director General
of Police, BMTF,
BBMP Main Office,
Bangalore City.
6. Sri. C.R. Rajendra,
Police Inspector,
BMTF, BBMP Main Office,
Bangalore City.
3
7. M. Srinivas,
Doddagubbi Circle,
Bangalore.
8. The Superintendent of Police,
Central Bureau of Investigation,
Bellary Road,
Bangalore. ...RESPONDENTS
(By Shri. S. Dore Raju, State Public Prosecutor and
Shri. P.M. Nawaz, Additional State Public Prosecutor, for
respondent Nos. 1 to 4
Shri. Amit Deshpande, Advocate for Respondent No.6
Shri. Navakesh Batra, Advocate for M/s. Nandi Law Chambers
for Respondent No.5
Shri. M.B. Ravikumar, Advocate for Respondent No.7
Shri. C.H. Jadhav, Senior Advocate for Respondent No.8 )
*****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to call for the records in FIR
No.10/2011 registered at BMTF Police Station, BBMP Main
Building, Bangalore for an offence which is made penal under
Section 192(a) of the Karnataka Land Revenue Act, 1964 the First
Information of which is submitted to the Chief Metropolitan
Magistrate, Bangalore, which is produced and marked as
Annexure-A1 and etc;
IN CRL.RP.392/2012:
BETWEEN:
Sri. S.M. Alex,
Major in age,
4
S/o. late M.M. Alexander,
No.35, 2nd Cross,
D'Costa Square,
Cooke Town,
Bangalore-560 084. ... PETITIONER.
(By Shri C.V. Nagesh Senior Advocate for
Shri K. Raghavendra, Advocate)
AND:
State of Karnataka,
By the Station House Officer,
Bangalore Metropolitan Task
Force Police Station,
Bangalore. ... RESPONDENT.
(Shri P.M. Nawaz, Additional State Public Prosecutor)
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973
praying to set aside the order dated 26.03.2012 passed by the
Chief Metropolitan Magistrate, Bangalore.
These petitions, having been heard and reserved on
29.07.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
5
ORDER
The first petitioner is the husband of the second petitioner. They seek a writ in the nature of certiorari quashing the first information report No.10/2011 registered at BMTF Police station, BBMP premises, Bangalore, registered for an offence punishable under Section 192A of the Karnataka Land Revenue Act, 1964, (Hereinafter referred to as the 'KLR Act', for brevity) among other reliefs.
2. The first petitioner has also filed a Criminal Revision Petition in Crl.R.P 392/2012 against an order dated 26.3.2012, passed by the Chief Metropolitan Magistrate, Bangalore in the above proceeding, on an application under Section 457 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity), filed by the first petitioner, which is considered along with this petition and is also disposed of.
3. The facts, as stated by the petitioners, are as follows: 6
The petitioners are engaged in diverse businesses. They are said to have established themselves well and have acquired vast properties.
It is their case that the fifth respondent, R.P. Sharma, who was at the relevant point of time holding the post of Additional Director General of Police, the Bangalore Metropolitan Task Force (BMTF) had developed animosity against the petitioners in the following background.
The said fifth respondent is said to have acquired two plots of land measuring about 10000 square feet, identified as House list khatha no.54/1/2 (Old plot no.28), Doddagubbi, Bidarahalli Hobli, Bangalore South Taluk under a sale deed dated 27.5.2010, from one Purushotam son of Gali Hanumaiah. The said plots were said to have been culled out of land bearing Survey Nos. 10/1,10/2, 10/3,10/4 and 10/5 of Doddagubbi and that the said lands had been converted for non-agricultural residential purposes as per an Order dated 5-8-2009 passed by the Special Deputy Commissioner, Bangalore.7
As the petitioners claimed interest in land bearing Survey Nos. 10/1,10/2 and 10/3, they had, along with one K.N.Chako, got issued a public notice dated 6.7.2011, in the Times of India, an English daily, to the effect that if any person had a claim in respect of the said items of land, that they should contact the petitioners. The fifth respondent is said to have responded claiming that he was the owner of property no.28 of Doddagubbi and enquired whether the same would fall with in the bounds of the items of land claimed by the petitioners.
It is alleged by the petitioners that from that point onwards, the fifth respondent took upon himself to constantly harass the petitioners by repeatedly approaching them, through middlemen, purportedly for a settlement in respect of a possible dispute with respect to the plots that he had apparently purchased in a disputed area.
It transpires that the fifth respondent was transferred as the Inspector General of Police, BMTF, in November, 2011. As soon as he assumed office, it is alleged that he had got issued a notice 8 purportedly by the BMTF, dated 23.11.2011 calling upon the first petitioner to produce documents in relation to the land in Survey Nos.10, 103 and 104 of Doddagubbi and to appear in the office of the BMTF, for an enquiry. This was on the pretext that certain villagers of Doddagubbi had, by a representation dated 11.11.2011 complained to him that the first petitioner had encroached on Government land in the aforesaid survey numbers, including a "Rajakaluve" and had formed an unauthorized residential layout in the name of Golden Orchard.
The first petitioner had sent a reply to the notice, dated 15.12.2011, contending that he did not own or possess any part of the lands bearing survey no. 10, 103 and 104 of Doddagubbi. It was also pointed out that on the other hand, the fifth respondent was himself constructing a huge house in the said items of land. It was further alleged that the fifth respondent had issued the notice with ulterior motives and that the petitioner would be constrained to approach the Lokayuktha if the fifth respondent resorted to such methods of harassment.9
The petitioner had enquired with the Village Panchayath, Doddagubbi and had learnt that their records did not indicate any permission or sanction obtained by the fifth respondent, to construct the palatial house. It is also asserted by the petitioners that the said property in fact falls within the administrative jurisdiction of the Bangalore Development Authority.
It is alleged by the petitioners, that though there was a lull in further enquiries by the fifth respondent, to the shock of the first petitioner, there was a raid on the office premises of the petitioners, on 16.1.2012, and the petitioner was unceremoniously dragged out of his office chamber and in full public view, bundled into a vehicle by the posse of police personnel accompanying the fifth respondent and taken to the BMTF police station. It is alleged that on reaching the police station the movements of the petitioner were completely restricted and he was not even allowed to use the toilet. The petitioner who was suffering from a heart condition was put under severe stress, when the seventh respondent started berating the petitioner in foul language for having made 10 allegations against his boss, the fifth respondent of illegal acquisition of property and unauthorized construction. The petitioner was on the verge of collapse, when it was decided that he needed immediate medical attention. He was then taken to the Bowring & Lady Curzon hospital and from there to the Jayadeva Institute of Cardiology, on medical advise and was immediately admitted as an in-patient. On 17.1.2012, the petitioner was discharged from the hospital at the instance of the fifth respondent, and was informed that he had been shown as arrested on 16.1.2012 in relation to case no. 10/2011, on the basis of a complaint by one, M.Srinivas of Doddagubbi, for an offence punishable under Section 192A of the KLR Act.
The petitioner on being produced before the Court of the Chief Metropolitan Magistrate, was enlarged on bail. But even before the first petitioner could complete the formalities in obtaining bail, it is stated that the fifth respondent had dispatched a posse of policemen headed by the sixth respondent, to the office premises of the petitioner and in the guise of search and seizure 11 had ransacked the premises and carried away files and documents. It is in the final stages of the raid that the petitioner had reached his office premises, only to be sternly warned by the sixth respondent that the consequences of offending his superior were yet to follow.
4. In the above background the learned Senior Advocate, Shri C.V.Nagesh contends that the registration of a case against the petitioners on the basis of the complaint of the eighth respondent for an offence punishable under Section 192 A of the KLR Act, in contravention of the due process of law, is an abuse of the process of law.
That the alleged complaint, on the face of it, does not disclose any offence committed by the petitioners as the petitioners have no claim over the land said to have been encroached.
The conduct of the fifth respondent is ridden with mala fides. He has been instrumental in the BMTF personnel , including 12 the sixth respondent - deliberately causing damage to his reputation by publicly arresting him from his office premises and confining him in the police station without just cause and thereafter carrying out a raid on the office premises and in having instigated the sixth respondent to berate and illtreat the petitioner. And all of this only to wreak vengeance against the petitioners, in apprehension that the petitioner may set off an investigation leading to the illegal assets of the fifth respondent being exposed. Hence it is contended that the registration and investigation of the alleged criminal case is stage managed, for extraneous and irrelevant considerations.
It is also pointed out by Shri Nagesh that on being produced before the court, the first petitioner sought for his enlargement on bail. In his bail application, the first petitioner contended that all was not well between himself and the fifth respondent and that the crime is registered at the behest and instance of the fifth respondent and that the fifth respondent in 13 order to compel the first petitioner to enter into terms with him, has got him arrested at the hands of the sixth respondent and that the sixth respondent in fact could not have registered a crime at all in view of the authoritative pronouncement of this court in Lalitha Sastry v. State of Karnataka, ILR 2008 Kar 4520 and that his bail application is being opposed to wreak personal malice and vengeance against him and that his remand to judicial custody is sought without any justifiable ground or reason and with the sole object of subjecting him to public humiliation and disgrace.
Presumably to have the advantage of an order of remand of the first petitioner, to judicial custody, a requisition was filed by the BMTF police personnel at the time of his production before the court seeking permission of the Court to include the offences which are made penal under sections 406, 420, 424, 197, 120-B read with Section 34 of the Indian Penal Code, 1860 to the original First Information Report. The jurisdictional Magistrate however, even to this day has not granted the request made by the investigator to include the aforementioned offences in relation to 14 the crime registered against the first petitioner on the basis of the complaint of Srinivas of Doda Gubbi Circle.
The Magistrate however, while rejecting the request made by the BMTF Police for the remand of the first petitioner to judicial custody, directed the enlargement of the first petitioner on bail.
The punishment that could be imposed for an offence which is made penal under Section 192A of the KLR Act in the event of the prosecution becoming successful in establishing the guilt of the accused is a sentence of imprisonment not exceeding three years and a fine of Rs.10,000/-. Under the provisions of the KLR Act, the offence under section 192-A is not classified as either bailable or a non-bailable offence. Consequently, one has to fall back upon the provisions of the Cr.PC to know whether the offence under Section 192-A of the KLR Act is bailable or not. Chapter -XXIII of the Cr.PC would indicate the classification of offences against other laws. The classification so made would make the offence under Section 192-A of the KLR Act a bailable 15 one. In order to prevent the first petitioner from seeking the relief of bail as a matter of right, the investigator of the case at the behest and instance of the fifth respondent appears to have submitted a request to the court seeking permission to add an offence which is made penal under sections 406, 420,424, 197, 120-B read with Section 34 of the IPC.
It is further contended that a reading of the table attached to Section 192-A of the KLR Act would make it amply clear that the offences of trespass, unlawful occupation of Government land and thereby cheating the State and creation of false documents, alienation of the said land through any mode known to law and creation of forged documents for the said purpose is made penal under Section 192-A of the KLR Act and the court could impose different sentences for each of the said acts. In view of the settled legal position and the law laid down by the apex court in the case of Avatar Singh reported in AIR 1978 SC, there is absolutely no scope whatsoever for the investigator to have sought the permission of the court which permission in fact has not been 16 granted to include certain offences which are made penal under the general provisions of law when the special enactment itself makes those offences also a penal one, under the said Special Act itself.
Further, on 12.1.2012, that is post-registration of the crime against the first petitioner for an offence which is made penal under Section 192A of the KLR Act, a Surveyor is said to have surveyed the land in question and his survey is stated to have indicated that there was encroachment of land belonging to the State Government to the extent of 10 guntas, by the petitioners, and that the petitioners have also not got the land converted from agricultural to non-agricultural purposes. The report of the Surveyor, a copy of which is produced by the State in its counter would run contrary to what has been stated by the Revenue Inspector who inspected the land in question and who had prepared a spot panchanama in the presence of the villagers. The panchanama drawn by the Revenue Inspector would make a mention of the Government Order under which sanction came to 17 be accorded for conversion of the land in question from agricultural to non-agricultural purposes. The report of the Surveyor, a copy of which is produced by the State in its counter would run contrary to what has been stated by the Revenue Inspector who inspected the land in question and who had prepared a spot panchnama in the presence of the villagers. The panchnama drawn by the Revenue Inspector would make a mention of the Government Order under which sanction came to be accorded for conversion of the land in question from agricultural to non-agricultural purposes.
It is contended that the survey said to have been made by the Taluk Surveyor was not the survey that was contemplated under Section 192A of the KLR Act. Even if the said survey were to be true, it is a survey done behind the back of the petitioners. It is contended that BMTF Police personnel are not the authorities who are clothed with the powers of getting the land surveyed for the purpose of finding out as to whether there is encroachment of Government land or not, before initiating action 18 against the encroacher as contemplated under Section 192A of the KLR Act. Even otherwise, the telltale survey was subsequent to the registration of the crime and cannot certainly be taken as material for the registration of the crime and its investigation, for an offence punishable under Section 192-A of the KLR Act.
It is contended that in the instant case, the authority under the provisions of the KLR Act has not chosen to file any complaint before the BMTF Police. The authority could not have filed any complaint for the reason that requirements of law as contemplated under Section 192A of the KLR Act as laid down by this court adverting to the notification issued by the State Government in the case of Lalitha Shastri, supra, was not complied with. Consequently, it is contended, that the registration of the crime for an offence which is made penal under Section 192A of the KLR Act on the basis of the complaint of a certain Srinivas of Dodda Gubbi Circle, said to be a Village Accountant, the arrest of the first petitioner, his detention in police custody and thereafter, his production before the Jurisdictional Magistrate, 19 search of his office premises, seizure of the files, records, books of accounts among several other material objections by the police personnel is certainly far in excess of the powers vested in the personnel attached to the BMTF Police Station, Bangalore.
It is hence contended that the proceedings initiated against the petitioners be quashed.
5. It is contended by the learned State Public Prosecutor Shri Dorairaju, that the present petition is not maintainable and is filed only with a view to circumvent the law by making a scurrilous attack on the officers of the BMTF, projecting them in poor light, without any foundation being laid thereto. The admitted correspondence carried on by the petitioner in response to notices issued in the course of routine investigation is met with open threats of the petitioners initiating proceedings against the concerned officers, particularly respondent no.5, which is only to dodge the bona fide investigation into the various criminal acts of the petitioners.
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It is contended that the entire matter revolves around the petition which came to the BMTF on 11.11.2011 and as a matter of routine enquiry, the matter was referred to the Village Accountant who after preparing a mahazar on 15.11.2011, communicated that there is encroachment of Government land by the petitioner and his wife and the same had been sold by the petitioner and his wife to many buyers. The said mahazar is produced before the court. After receiving such mahazar it was imperative on the part of BMTF who had been assigned the duties and responsibilities of protecting Government lands and properties to further inquire into the matter.
On 23.11.2011 a notice was issued to the petitioner to present his case if any. The petitioner represented by his son had sought two adjournments on 7.12.2011 and 14.12.2011 and did not produce any document in support of his case.
The petitioner without contradicting the allegations and the findings of the Village Accountant preferred to question the authority of the BMTF and also brought certain irrelevant facts 21 stating that Respondent no.5 is building a house in the area. Besides this, he had also asserted that he would file a case before the Lokayuktha against the BMTF officials.
Since the petitioner did not avail the opportunity granted to him, the BMTF had enquired with the Village Accountant as to what action had been taken to recover the Government land in accordance with the Government Circular No.RD 674 LJB 2008 dated 8.9.2008 issued by the Government of Karnataka.
The Village Accountant in turn, had filed a written complaint which was registered as Crime No.10 of 2011 on 17.12.2011 and investigation was taken up. Since the essential ingredients of the complaint revolved around the encroachment of Government land, a request was made to the Jurisdictional Tahsildar to conduct a survey of the land. Accordingly, a Surveyor, as per the direction of Tahsildar, had conducted a survey and furnished a report that ten guntas of land over a Raj Kaluve had been encroached by the petitioners. 22
The Investigating Officer was duty bound to inquire into all the aspects of the crime which came to light on the complaint filed by the Village Accountant. The Mahazar prepared by the Revenue Officer and confirmed by the land survey records to clearly depict that not merely had the Government land been sold but in furtherance thereof, there were various other acts done in conspiracy with others.
The Investigating Officer recorded the statements of other public authorities, like the Revenue Inspector who corroborated their statements and in accordance with the established procedure wanted to examine the first petitioner in relation to Crime No.10/2011.
The Investigating Officer had issued notices under Section 160 of Cr.PC, to the petitioner so as to record his statement in view of various incriminating materials and information gathered. The petitioner evaded the process of law and was not available for investigation. The Sub-Inspector had given a report that the petitioner was not available for investigation and was evading 23 notices. As speedy investigation was the duty of the Investigation Officer as per Section 173(1) of Cr.PC and the law laid down by the Supreme Court, the Investigating Officer arrested the petitioner for further investigation in accordance with the provisions of the Cr.PC.
The Investigating Officer, after arresting the petitioner, communicated the rights of the accused to the petitioner besides informing him of the requirement as per the law of subjecting him to medical examination. The petitioner was also told the reasons, need and grounds of arrest in the presence of his son Shri Rosch. The above actions were in accordance with the directions of the Supreme Court and were strictly adhered to. The need of arrest was also in accordance with the proposition laid down by the Supreme Court in D.K.Basu vs. State of West Bengal, 1997(1) SCC 416. All through, the period of custody of the accused, he was accompanied by his son Shri Rosch and his private advocate Shri Janardana Naidu and the same finds a place in the remand report. The various CCTV footage available endorses the same. 24
The medical examination was also in accordance with the directions of the Supreme Court.
The directives of the Supreme Court in Joginder Kumar vs. State of Uttar Pradesh AIR 1990 SC 1349 are also directed towards the Judicial Magistrate who has to satisfy himself that the various guidelines with regard to the violation if any, of the fundamental rights have been adhered to. Accordingly, the seventh respondent in his remand report had brought out the fact that all the directions have been complied with to the satisfaction of the court of the Magistrate. Besides the Jurisdictional Magistrate also elicited the information that there was no ill- treatment meted out to the petitioner and the same was taken judicial notice of, by reducing it into writing.
All allegations of ill-treatment are false, baseless and have been leveled against the Investigating agency to tarnish their image who are public servants discharging their official duty. The conduct of the petitioner is evident by the fact that despite knowing all proceedings have been stayed the petitioner tried to 25 obtain documents by obtaining an order from the appropriate court so as to wriggle out from the process of law. This is a clear case of interference in the administration of justice.
The Investigating Officer during the course of investigation collected evidence from the office of Sub-Registrar and from various witnesses and found that the petitioner and his wife in furtherance of the common intention and conspiracy along with some other accused have committed many offences and the same find place in the Remand Report. The accused persons have fraudulently sold sites formed in the above layout from 1990 onwards which was initially in the Green Belt area by forming plots of various sizes, in violation of section 192-A(1)(2) and (5) of the KLR Act.
In an unreported judgment of the apex court, in Writ Petition (Crl.) No.68/2008 (Latika Kumar vs. Government of Uttar Pradesh and others), has held that effective steps should be taken by the Director General of Police and the Commissioners of Police for registration of the First Information reports after the 26 receipt of the complaint. Therefore, registration of the First Information report after the complaint must be immediate. The Supreme Court, inter alia, has observed that if the registration of the First Information Report does not take place, then the provisions of Contempt of Court Act, 1871 would be attracted.
It is contended in the case on hand, the registration of First Information Report had taken place soon after the receipt of the complaint from the Village Accountant. Therefore, the contention of the petitioner that the Investigating Officer has registered false First Information Report is palpably false. First Information Report was registered in view of the law laid down by the Supreme Court as above and in accordance with Section 154 of the Cr.PC. Placing reliance on the decision of this court in Lalitha Shastry, supra, and seeking relief is another way to hoodwink the due process of law as the said decision is neither applicable with regard to registration of the First Information Report and even if it is extended to the farthest limit the principles of natural justice have been adhered to before the 27 registration of the case. In view of the law laid down by the Supreme Court in the above referred case, all opportunity was given to the petitioner and by no stretch of imagination such acts could be termed as being illegal.
In yet another judgment reported in Lallan Chowdary vs. State of Bihar, 2007 (1) SCC (Crime) Page 686, the apex court has laid down that the Police Officer has no option but to register the case if the information discloses the commission of a cognizable offence.
The BMTF was constituted by the Government of Karnataka with the aim and objective to detect commission of any offence or design to commit any offence with regard to unauthorized occupation of Government land under various laws and enactments, besides providing better protection of the property belonging to the Government, Municipal Bodies and Local authorities in the Bangalore Metropolitan Area and to identify the employees and officers of those organizations who 28 collude with the public in committing the aforementioned offences.
The problem of encroachment of the Government land is so serious that a legislation in the form of amendment to the KLR Act was brought in the year 2007 and various provisions under Section 192A were incorporated.
Consequent to the above amendments as well as in view of the land sharks operating in Bangalore, who continue to indulge in their activities un-abated, the BMTF has to rise to the challenge. Any dispassionate analysis of the acts of the petitioners will demonstrate that all their acts would indicate an intention to grab Government land and dissuade the investigating agency from bringing them to book.
The intensive drive by the BMTF to prevent encroachment has yielded very significant results and in the last six months, 63 cases have been registered against various violators of the law in furtherance of the duty charter of the BMTF.
29
Any allegation on the part of the petitioner that he has been targeted is false and a motivated allegation. There are many other cases which have been taken up against various other persons under the Land Revenue Act. It is also pertinent that 30 cases have been taken up so far against the public servants. It is contended that the personal attack on the bona fides of the fifth respondent, by the petitioner is unwarranted. In fact, the fifth respondent was not associated with investigation in any way. The fifth respondent was on leave from 12.12.2011 to 31.12.2011.
The encroachment of Rajkaluve is a public problem where inundation of various localities has been attributed to such encroachments of Rajkaluves. In WP 31394/2009 considering the matter as being of great public importance, a division bench of this court had directed the public authorities to clear such encroachments from the storm water drains (Rajkaluve). In view of this directive in a Public Interest Litigation, no public authority could remain a silent spectator when the demand of clearing the 30 Rajkaluve comes from a revenue officer such as a Village Accountant.
It is claimed that during the course of investigation, various materials have surfaced against the accused which constitute grave offences committed by the accused and others which are summarized below:
a) the petitioner had developed a layout in the green belt area (agricultural land) in the early nineties of the last century.
b) He had purchased agricultural land in his name, and in his wife's and other names as is evident from the various powers of attorney seized, though he was not entitled to.
c) He had transacted as a holder of multiple powers of attorney enabling him to purportedly deal with agricultural land.
The same is apparently a circumstance to indicate the petitioner's involvement in nebulous, unauthorized, development of agricultural land and it is clearly in the domain of the BMTF to prevent further illegal acts of the petitioners, clearly covered under Section 192A of the KLR Act.
31
d) He has given wide publicity by releasing pamphlets, and canvassing abroad, about the said illegal layout formed by him. Documents are seized where the petitioner has declared himself as the proprietor of the Golden Orchards Layout, blatantly selling as non-agricultural land, what is clearly Government land, by fraudulent means to the public attracting the ingredients of cheating. It is the duty of every Police Officer to implement the mandate of the law and the same has been done by the BMTF by adhering to the provisions of the law.
e) The petitioner had made a false declaration at material point before the competent authority to obtain the conversion order of agricultural land.
f) The petitioner is a self styled President of the residents Welfare Society of the Golden Orchard and has fraudulently collected Rs.20/- per square foot as conversion charges, besides 2% of his commission charges and had misappropriated huge sums of money.
32
g) As the President of the Welfare Society, he had received maintenance charges by falsely intimating the residents that various activities of club, swimming pool, tennis court, squash courts are all being maintained by him and has collected the maintenance charges while in fact the petitioner along with two others has tried to sell these areas as a part of joint development plan by giving wide publicity.
It is claimed that further investigation is required to gather evidence from various authorities including the sale transactions of the following sites bearing Nos.19,32,33,41, sold to Shri N.T.Nair, Shri S.N.Radhakrishna, Shri T.S.Thomas and Dr.Malini Chandrashekar, to establish the sale of the Government land. As preliminary investigation has revealed that the above mentioned sites are formed encroaching the Rajkaluve.
The further investigation relating to bank transactions to identify the manner in which the sale proceeds have been obtained by the petitioners, the investigation with regard to the petitioner's foreign trips and the passport details and also various 33 advertisement in the news paper with the intention to cheat the public and potential buyers, is yet to be ascertained.
The investigation with regard to various other accused who have conspired with him and the verification of other information is yet to be done. Since the entire investigation has been stayed at a nascent stage, there is a possibility that accused may try to destroy the evidence and hence, it is sought that the order of stay may be vacated.
The petitioner's all out attempts to thwart investigation is evident from the multiple proceedings initiated by him. The petitioner had filed a petition under Section 397 and 401 of the Cr.PC for release of documents. The Court of the Chief Metropolitan Magistrate, Bangalore in Case No.10/2011 finding no merit in the petition has rejected the claim for return of the documents. To interfere with the administration of justice, the petitioner had also filed a revision petition before this court in Crl.R.P.No.392/2012. The petitioner has filed a petition before 34 the Human Rights Commission alleging gross violation of human rights.
The report of the Inspector General of Police, Human Rights Commission is categorical that there is no human rights violation as alleged by the petitioner before the State Human Rights Commission. The report of the commission also discloses the fact that the petitioner has encroached public property. The said report is produced as Annexure R.18.
It is contended that there is no element of any abuse of process of law and there is no targeted prosecution against the petitioner as evident from the facts explained supra. The respondent has discharged his duties as envisaged in the various Government Orders adhered to all the guidelines of the Supreme Court and internal circulars issued on 24.11.2011 and there is no wrong done and all actions have been done in accordance with law. And hence the State seeks dismissal of the proceedings as being an abuse of the process of law.
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6. It is contended on behalf of Respondent no.5 that the entire basis of the petitioner's case to lug in this respondent was that respondent No.5 had a personal grudge against the petitioners because petitioner no.1 with a firm attitude refused to sit across the table to enter into terms with him; that he had misused and abused his official position as the Head of BMTF and got registered a false and fabricated complaint of a false and fictitious person to compel the petitioners in to an amicable settlement with him and further that the petitioner is constructing a palatial house in the locality.
The fifth respondent states that he is needlessly dragged into these proceedings and that he is in no way involved in the entire matter.
The State Human Rights Commission in the inquiry conducted by the Inspector General of Investigation has given its clear findings about the falsity of the allegations made by the petitioners.
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The petitioner no.1 had some time in July - August 2011, as the Developer and President of the Residents Welfare Society made some attempts to get this respondent to comply with his request, which was refused as untenable. It is asserted that he has no grudge whatsoever against the petitioners.
Though he was promoted and took charge on 1.1.2012 as Additional Director General of Police, he was on leave from 12.12.2011 for 20 days and was not in the country for 10 days. He attended office only on 3.1.2012 and from 12.12.2011 till 31.12.201, the Superintendent of Police, BMTF held the charge. 2.1.2012 was a government holiday. The First Information Report was registered by the Inspector, BMTF on the complaint received by him from the Village Accountant.
On 3.1.2012, this respondent had issued a memo that the Superintendent of Police and Additional Commissioner should act independently to safeguard government property and refused to entertain the petitioners or have any discussion about the 37 petitioners or the case with anybody to ensure a fair and impartial investigation.
Without prejudice to the fact that the acquisition of the site and construction of the respondent's house are wholly irrelevant matters, the respondent states that he acquired his site and is constructing his house after statutory permissions including such as were necessary, from the State Government.
The petitioners are repeatedly willfully indulging in calumny and leveling false and scurrilous allegations against the respondent and have abused these proceedings to continue their false, vindictive diatribe and calumny. In view of the above, the petitions against the fifth respondent may be dismissed with exemplary costs.
The CBI , the eighth respondent has entered appearance and contended that in so far as the prayer of the petitioners to register a case against respondents 5 to 7 for offences punishable under the provisions of the IPC or under the provisions of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act' for 38 brevity), the same is not maintainable. It is pointed out that from a reading of the alleged incident and the case registered at the BMTF police station do not fall within the list of offences notified under Section 3 of the Delhi Special Police Establishment Act, which can be investigated by Central Bureau of Investigation (hereinafter referred to as 'the CBI', for brevity) . In so far as the PC Act, is concerned, any offences alleged thereunder could very well be investigated by the local police .
The Apex court has, in more than one case, expressed that routine matters are not to be entrusted to the CBI and power of a Court in this regard shall be exercised, sparingly.
In the above background it is for this court to firstly ascertain as to which of the reliefs claimed by the petitioners in these petitions can possibly be considered, given the facts and circumstances.
The main prayer sought is that this court should quash the first information report in Crime no.10/2011, registered at the 39 BMTF Police Station, Bangalore, against the petitioners for an offence punishable under Section 192 A of the KLR Act.
The further prayers seemingly incidental thereto, are that court should address the alleged abuse of process by the respondent police officers and to proceed against respondents 5 & 6, in particular;
And to consider whether the CBI should be directed to register a case against the said respondents for offences punishable under the Prevention of Corruption Act;
One other prayer is that respondents 1,2,5,6 and 7 be directed to pay Rs. 1 crore as compensation for the injury and suffering caused to the petitioners.
7. As is seen from the verbose pleadings and the several allegations and counter allegations, it cannot be expected of this court to arrive at categorical findings as regards the various circumstances urged by the parties, merely on the basis of the said statements and on a perusal of documents produced. 40
In that, the grievance of the petitioners that the prosecution initiated against them for offences punishable under Section 192 A of the KLR Act, was as a result of Respondent no.5 having purchased land the identity of which overlapped that of land held by the petitioners and therefore in order to compel the petitioners to accommodate the fifth respondent to enjoy the property claimed by him even if there was a doubt as to the validity of his purchase, the same having been staged falsely is in fact a two tiered complaint that cannot be addressed together. In other words the personal vendetta said to have been unleashed by the fifth respondent, cannot be the premise on which the tenability of the criminal case sought to be made out against the petitioner can be addressed.
The writ jurisdiction of this court is ill suited to arrive at findings in respect of the alleged illegal acquisitions by the fifth respondent and as regards a dispute said to have been raised by the fifth respondent pertaining to a portion of land held by the petitioners. And this having escalated into a full scale war 41 whereby the fifth respondent has allegedly chosen to misuse his office in bringing false proceedings against the petitioners, apart from subjecting them to ill treatment and hardship.
It is also seen that the petitioners claim compensation in a substantial sum of money from the respondents, particularly respondent no.5. This would indicate that the petitioners are in effect seeking damages for the tort of malicious prosecution. Having regard to the stage of the criminal proceedings , it may be premature for the petitioners to seek any such relief even if the claim is restricted to the sequence of events immediately preceding the present writ petition. The respondents have vehemently denied any aberrations in the procedure followed in respect of the investigation and arrest of the petitioner and the seizure of documents after a raid on the office premises of the petitioners. Significantly, the first petitioner having been questioned by the Magistrate, before whom the petitioner had been produced, it is recorded by the said Magistrate that the petitioner had no complaint of ill treatment. This court cannot 42 ignore the same. Therefore, even if the petitioners can sustain a case of abuse of process and consequent violation of their rights entitling the petitioners to appropriate reliefs - this is at best a cause of action for a civil suit for damages, if it should be established that the case sought to be made out against the petitioners was false and motivated by the malice harboured by the fifth respondent and that the other respondents had willfully aided and abetted him in furthering the false prosecution.
Hence the allegations against the fifth respondent would have to be ignored for the purposes of examining whether the proceedings initiated against the petitioners for an offence punishable under Section 192A of the KLR Act, was in accordance with law.
In so far as the further prayer that this court enquire into the abuse of process by the respondents and direct the CBI to initiate proceedings against the respondents for offences punishable under the provisions of the PC Act, is again not capable of being granted, for in the opinion of this court it is not a case which 43 warrants the involvement of the CBI, at this stage of the proceedings. It would however, be open for the petitioner to seek sanction of prosecution for any such offences before the competent authority and initiate such action or to approach the Lokayuktha, if so advised.
Hence this court would confine the scope of this writ petition to the procedure that is said to have been followed by the respondents in seeking to bring the petitioners to book in so far as the allegations of the commission of offences punishable under Section 192 A of the KLR Act.
It is not in dispute that the proceedings have been set in motion by a complaint filed by one M. Srinivas, Village Accountant, arrayed as the seventh respondent in the writ petition. It is also stated that the petitioners had filed a complaint in case no. PCR 47 of 2012 naming Srinivas as the accused, seeking investigation under Section 156 (3) by the Lokayuktha Police. The said complaint is said to have been filed during the pendency of this petition, as on 3-9-2012. The Petitioners have not thought 44 it fit to inform this court of the same. It transpires that the Lokayuktha Police have filed a "B" report in the said PCR 47 of 2012 and the matter stands at that stage.
Be that as it may, it is kept in view that the BMTF is a specialized task force and a field unit of the Urban Development Department and functions under the overall supervision of the Principal Secretary, UDD. The personnel of the BMTF are authorized under Section 19 of the KLR Act and have been entrusted with powers for better protection of Government lands . It is on record that the Additional Commissioner, BMTF has ordered the registration of the FIR against the petitioners, as seen at Annexure R-2 to the Statement of objections filed on behalf of the State.
This court in Lalitha Sastry's case has held that the State has prescribed a procedure for itself before initiating proceedings against persons who have encroached government land or believed to have done so. Namely, that a show cause notice is to be given calling upon those who have encroached, to file their 45 objections if any, within 15 days, as to why action ought not to be issued against them. If there is no response, the authorities are to visit the spot, conduct a Mahazar in the presence of the resident villagers, obtain their signatures and thereafter to initiate criminal proceedings, if they are satisfied that there is encroachment.
In the event of the notified persons producing documents to establish their right of occupation of the land, the authorities are to examine the same for their veracity and if found to be irregular, action could be initiated to penalize them. This is the procedure that was prescribed under a Circular issued by the Government, dated 8-9-2008, while dealing with encroachment by the innocent, or the not so innocent villagers, occupying government land, unauthorizedly.
In the instant case on hand, the primary contention is that before the filing of a complaint the petitioners were entitled to a show cause notice, a notice of the survey conducted in respect of the alleged encroachment and an examination of the documents under which the petitioners claim the land. Criminal procedural 46 law does not normally contemplate any pre-condition to the filing of a complaint. Even in Lalitha Sastry's case, there is no indication that a survey of the encroached land, as alleged, ought to be conducted in the presence of the person who has encroached the land. It was a contention of the petitioners therein.
In any event the petitioners were placed on notice of the allegation of encroachment. The petitioners were miffed and accused respondent no.5 of initiating the proceedings to wreak personal vengeance and trashed the allegation apart from claiming that they would approach the Lokayuktha to initiate action against respondent no.5.
The respondent officers of the BMTF claim to have ascertained the extent of encroachment and it is thereafter that the Additional Commissioner, BMTF appears to have directed the filing of an FIR.
If once the commission of a cognizable offence is disclosed the provisions of the Cr.P.C. would prevail, the registration of an FIR is in order. It is seen from the contents thereof that the 47 petitioners are accused of having committed offences falling under item nos. 2,3, 5 and 6 of the Table under Section 192 A of the KLR Act. It is also alleged that the petitioners have committed other serious offences. It is well settled that if during investigation, additional offences are brought to light, the investigating officer is bound to include those other offences in his report, and it is not necessary to obtain the permission of the magistrate.
8. In the above view of the matter it cannot be said that the proceedings initiated against the petitioners are illegal or otherwise liable to be quashed. The writ petitions are dismissed.
In the above view of this court, the Criminal Revision Petition No.392/2012, does not survive for consideration and is dismissed.
Sd/-
JUDGE KS*