Karnataka High Court
Satyanarayanappa S/O Hanumanthappa ... vs Siddalingappa S/O Shivabasappa ... on 7 June, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 100015 of 2019
C/W WP No. 103561 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100015 OF 2019 (482)
C/W
WRIT PETITION NO. 103561 OF 2018 (GM-RES)
IN CRL.P.NO.100015/2019
BETWEEN:
SATYANARAYANAPPA,
S/O HANUMANTHAPPA HARAPANAHALLI
AGE: 56 YEARS, OCC: BUSINESS,
R/O: KUKANOOR, TQ: YELBURGA,
DIST: KOPPAL.
...PETITIONER
(BY SRI. P.G.MOGALI, ADVOCATE)
AND:
SIDDALINGAPPA,
S/O SHIVABASAPPA LANGATI
AGE: 30 YEARS,
OCC: AGRICULTURE AND BUSINESS,
Digitally
signed by R/O: KUKANOOR, TQ: YELBURGA,
ANNAPURNA
CHINNAPPA DIST: KOPPAL, PIN CODE:583232.
DANDAGAL
Location:
DHARWAD ...RESPONDENT
(BY SRI. B.V.SOMAPUR, ADVOCATE)
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CRL.P No. 100015 of 2019
C/W WP No. 103561 of 2018
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 26.02.2018
PASSED C.C.NO.59/2016 (P.C.R.NO.01/2016) U/S 245 & 246
OF CR.P.C. BY THE SENIOR CIVIL JUDGE & JMFC COURT,
YELBURGA INSOFAR AS IT RELATES TO ACCUSED NO.1
THEREBY DISMISS THE COMPLAINT AGAINST THE ACCUSED
NO.1 REGISTERED FOR THE OFFENCES P/U/S 420, 464, 465,
109, 120(B), 209, 217, 120(A), 121(A), 466, 471, 474, 218,
219 R/W SEC. 34 OF IPC.
IN W.P.NO. 103561/2018
BETWEEN:
SURESH S/O DASHARATH RATHOD
AGE: 37 YEARS, OCCUPATION: P.D.O.
R/O KUKNOOR, TQ: YALBURGA
DIST: KOPPAL.
...PETITIONER
(BY SRI. P.G.MOGALI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA DHARWAD BENCH,
DHARWAD.
2. SIDDHALINGAPPA S/O SHIVABASAPPA LAGHVI
AGE:30 YEARS, OCC: AGRICULTURE AND BUSINESS
R/O KUKNOOR TQ. YELBURGA
DIST:KOPPAL
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER SECTION 226 AND
227 OF CONSTITUTION OF INDIA R/W SECTION 482 OF
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CRL.P No. 100015 of 2019
C/W WP No. 103561 of 2018
CR.P.C., PRAYING TO ISSUE A WRIT OF CERTIORARI
QUASHING THE ORDER DATED 26.02.2018 SO FAR AS
FRAMING CHARGE AGAINST THE PETITIONER IN
C.C.No.59/2016 BEFORE THE SENIOR CIVIL JUDGE AND JMFC,
YELBURGA AT: YELBURGA VIDE ANNEXURE-E AND
CONSEQUENTIALLY QUASH THE PROCEEDINGS AGAINST THE
PETITIONER IN C.C.No.59/2016 BEFORE THE SENIOR CIVIL
JUDGE AND JMFC, YELBURGA AT:YELBURGA AND ETC.
THIS CRMINAL PETITION AND WRIT PETITION COMING
ON FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the parties and perused the records on admission.
2. The present petitions are filed with the following prayers :-
In Crl.P.No.100015/2019:-
"To set aside the order dated 26.02.2018 passed in C.C.No.59/2016 (P.C.R.No.01/2016) under Section 245 and 246 of Cr.P.C., by the learned Senior Civil Judge and J.M.F.C., Yelburga insofar as it relates to accused No.1 thereby dismiss the complaint against accused No.1 registered for the offences punishable under Section 420, 464, 465, 109, 120B, 209, 217, -4- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 120A, 121A, 466, 471, 474, 218, 219 r/w Section 34 of IPC."
In W.P.No.103561/2018:-
"Issue a writ of certiorari quashing the order dated 26.02.2018 so far as framing charge against the petitioner in C.C.No.59/2016 before the Senior Civil Judge and J.M.F.C., Yelburga at Yelburga vide Annexure-E and consequently quash the proceedings against the petitioner in C.C.No.59/2016 before the Senior Civil Judge and J.M.F.C., Yelburga at Yelburga."
3. The brief facts of the case are as under :-
Siddalingappa-respondent filed a private complaint before J.M.F.C., Yelburga for the offences punishable under Section 420, 464, 465, 109, 120B, 209, 217, 120A, 121A, 466, 471, 474, 218, 219 r/w Section 34 of IPC. The said complaint was registered and the learned Magistrate recorded the sworn statement of the said Siddalingappa and considered the documents which were produced by him and took cognizance of the aforesaid offences and directed -5- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 the office to register the case against the respondent for the aforesaid offences in C.C.No.59/2016. Thereafter, petitioner herein appeared before the jurisdictional Magistrate for hearing before charge and the same was recorded by the learned trial Magistrate. During the course of the evidence before charge, the complainant is examined as PW1 and one Sharanavva is examined as PW2 and Abhay Kumar as PW3 and documents were marked by the petitioner showing that the lands in Sy.No.67/AA and Sy.No.67E of Kuknur village was sought to be developed by the father of the petitioner at the first instance and applied for conversion of the land and got approved and a layout from Karnataka Town and Country Planning Department in the year 1989. After the layout plan was approved, the land was divided into house sites as per the plan sanctioned by the Karnataka Town and Country Planning Act and were sold to the public -6- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 at large by the father of the petitioner herein.
Subsequent thereto father of the petitioner got the plan modified instead of getting it approved from the Karnataka Town and Country Planning Department, got it approved through the Administrator, Gram Panchayath of Kuknur village and altered the position of the sites which was approved by the Town Planning Department in the year 1989. On such modified plan, he created some more sites and sold the same to the different persons other than the persons who were already purchased the land as per the original sanctioned plan approved by the Town Planning Department. Whereby, the rights of the purchasers of the sites got altered and a place meant for public park was also got converted into sites by the alleged modified plan and therefore, the complainant and others approached the Civil Court and filed a suit at the first instance in O.S.No.13/2015. However, by filing an application, -7- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 under Order XXIII Rule 1 C.P.C., they withdrew the suit. The learned trial Magistrate while allowing the said application, specifically observed that the suit if any to be filed by Siddalingappa and others must be on a new cause of action. Nevertheless when the said suit was pending, a private complaint came to be filed by the respondent herein seeking action against Satyanarayana (petitioner) and Suresha for the aforesaid offences. It is the specific case of the complainant that the documents are fabricated in order to justify the high handedness of the petitioner in modifying the sanctioned plan from Town Planning Department, Dharwad in the year 1989 and converted the same into sites. Further a separate suit is filed to objtain civil remedy in respect of the said action, which is now pending in O.S.No.23/2017 before the jurisdictional Court. In the meantime, the private complaint filed by the petitioner is proceeded against the petitioner herein.-8- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018
4. Being aggrieved by the pendency of the criminal proceedings, which is practically parallel to the civil proceedings, which is withdrawn by the respondent, has resulted in abuse of process of Court and thus sought for setting aside the order dated 26.02.2018 and dismiss the complaint.
5. Following grounds have been raised in Crl.P.No.100015/2019:
• It is alleged in para 3 & 4 of the
complaint that the accused-petitioner
had filed W.S., in the suit, in which he had furnished false information in order to misguide the Hon'ble trial court. It is pertinent to note that before adjudication of dispute between the parties in the suit, the suit itself was withdrawn by the plaintiffs through an IA., dt: 28/6/2016. During the pendency of said suit, the complaint dt:
6/1/2016 was filed. When the suit itself was withdrawn before adjudication on the allegation of the complainant, the -9- CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 complaint filed during the pendency of the suit also does not survive for consideration. In view of withdrawal of the suit, the complaint itself was not maintainable. Therefore on the ground of maintainability itself, the complaint ought to have been dismissed and discharged the petitioner.
• The suit in O.S.NO: 13/2015 was filed by a group of 7 plaintiffs including the complainant. withdrawn by all the 7 plaintiffs. If a false W.S., was filed then all the 7 plaintiffs should have filed a complain alleging that false information was furnished by the accused in the W.S. Whereas the complaint has been filed by one of the seven plaintiffs which was not maintainable. On this ground also the Hon'ble Court below ought to have discharged the accused.
• It is to be noted that in the complaint itself it is alleged that the petitioner and accused No:2 have colluded each other and modified the lay out map when the TPA, has put a condition that
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the terms in the lay out map cannot be modified But in the cross examination, all the complainant's witnesses have deposed that they do not know who modified the lay out map and when it was modified. Thus when the complainant and his witnesses do not know as to who modified the lay out map, the complaint is not maintainable against the petitioner. The Hon'ble Court below has failed to appreciate this aspect of the matter.
• Ex.P5 makes it clear that the layout Map was modified by the administrator of the Gram Panchayath on 2/12/1993 during which period the Accused No.2 was not at all in service. This prima facie material point to the fact that there is no lot of truth in the complaint, which fact has not been noticed by the Hon'ble Court below, which lead to miscarriage of justice.
• It is clear from Ex.P-3- the conversion order that the father of accused No:1 being the owner of the land, got the
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land converted under the order dt. 24/1/1987. The layout map was got modified by the father of the petitioner only on 2/12/1993. The father of petitioner died on 12-07 2001. This fact has been admitted by the complainant and his witnesses. The petitioner has not played any roll in the process of conversion or modification of the sanctioned lay out map. Therefore the complaint against him is not at all maintainable.
• PW1, PW2 and 3 have admitted in their cross examination that they do not know as to who modified the lay out map and when. When this is the quality of evidence, the Hon'ble Court below has erred in holding that there is prima facie material to frame charge against the petitioner.
• As on the date of conversion and modification of lay out map, the accused No:1 i.e, the petitioner herein was not the owner of the land. That merely because he succeeded to the
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said property after the death of his father, perse cannot be the reason to hold him liable for the offence if any committed by his father, while getting the lay out map modified. The commission of offence being personal in nature, the LR's of the offender cannot be held liable. Therefore the complaint is contrary to the criminal jurisprudence.
• It is the specific allegation in the complaint that the W.5, has been filed by the petitioner and accused No:2 by giving false information and therefore they have committed an offence. Assuming that W.S., was filed by furnishing false information, it is for the said court to take action against the accused/petitioner. Under such circumstances, Section 195 of the Cr.P.C., bars the courts from taking cognizance of alleged offences except on the complaint in writing by that court. In view of section 195, the complaint itself is not maintainable.
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Therefore the court below ought to have discharged the petitioner/accused No:1.
• Assuming that the accused No:2 has modified the layout map, it was done during the course of his official duty in the capacity as a public servant. Under such circumstances the sanction to prosecute him is required to be obtained. No such sanction is obtained. Therefore the complaint is contrary to the provisions of section 197 of Cr.P.C.
• Section 340 of Cr.P.C., empowers the court to enquire into the matter if a false evidence is given and false documents are furnished in the course of judicial proceedings. If it is found that the parties have committed the offence, the court itself can file a complaint. The respondent has no locus standi to file such complaint. The Hon'ble court below has failed to appreciate this aspect of the matter.
• The father of the complainant had filed a suit against the very Panchayath,
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against the construction of Road and drainage. As the order in the said suit went against him, his son the respondent filed a false complaint with vengeance, This fact has been admitted by the PW1. It only reflects that the complainant is a busy body. Therefore there is no bonafide in the complaint.
• In para 4 of the W.S., filed by the petitioner-accused No:1, it has been specifically contended that the compound wall has been constructed up to 9M Road in the year 1994, abutting plot No: 43 to 47, after obtaining permission from the Gram Panchayath.
The existence of compound wall was very much known to the respondent/complainant in the year
1994 itself. But the suit is filed in the year 2015, in respect of said compound wall and complaint in the year. 2016:
This inordinate delay of nearly 20 years per-se reveal that there is no bonafide in filing the complaint & it is a clear case of abuse of process of the court.
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• In Ex.P-3 conversion order itself, it has been made clear that the father of petitioner has given 30 guntas of land in the same survey number to the Govt, for public purpose. When that is the situation, there is no necessity for the petitioner - accused No.1 to make false claim over the property in which the compound wall has been constructed. The Hon'ble Court below has not shown its presence of mind to this aspect of the matter, before passing the impugned order.
• PW1 has admitted in his cross examination that he does not know as to who modified the lay out map and the accused No:2 has not worked as an administrator of concerned Gram Panchayath as on the date of Modification. Further the accused No:2 has been appointed as PDO by the order dt: 20/6/2013 of the Zilla Panchayath. Koppal and he was transferred to Kukanoor Gram Panchayath under the order dt: 25/8/2014. Thus as on the
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date of modification of the lay out map, he was not working as PDO, or Administrator of Kukanoor G.P. The Hon'ble Court below has not noticed this aspect of the matter, while passing impugned order.
• Ex P-7 is the W.S., filed by the accused No:2, in O.S.NO:13/2015 in the capacity as a PDO., but not in his Individual capacity Where as the private complaint is filed against him personally, which is not maintainable in the eye of law.
• It is the specific case of the complainant that the accused No:2 had filed W.S., in O.S.No:13/2015 and produced the documents in the capacity as a PDO. Further it is alleged that the lay out map was modified by the accused No:2, while working as PDO. These allegations point to the fact that alleged offence has been committed during the course of discharge of his official duties. Under such circumstances. the provisions of Section
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197 of Cr.P.C., are attracted. Therefore the complaint without obtaining sanction from the competent authority is not at all maintainable.
• In the decision reported in ILR 1998 (4) Kar 3599 the Hon'ble Supreme Court held that summoning of an accused in a criminal case is a serious matter, Criminal law cannot be set into motion as a matter of course. The learned judge must apply mind to the facts of the case, documents produced and law applicable thereto, so that the accused is not under gone the agony of criminal trial. While holding in para 10 of its order that there is prima facie material against the petitioners to frame charge, the Hon'ble court below has not at all considered the evidence of PW 1 to 3 and the documents produced by them. Thus the impugned order is contrary to the ratio laid down by the Hon'ble Supreme Court.
• The finding of the Hon'ble court below that the accused No:2 has modified the
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018
lay out map, without the prior permission of the Joint Director Town Planning is contrary to the documents on record and the oral evidence. It only reflect that the Hon'ble Court below has not applied its mind to the oral and documentary evidence on record.
• The order impugned is arbitrary, perverse and without proper application of mind. Therefore the same is liable to be set-aside in the interest of justice. Following grounds have been raised in W.P.No.103561/2018:
• The proceedings launched against the petitioner are neither legal, proper nor correct.
• The prosecution has absolutely no legs to stand since it is patently clear that the compliant leading to the framing of charge is not in accordance with law.
• The Complainant respondent no. 2 has not stated anything about the involvement of the petitioner in the
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complaint and the impugned order to frame the charge against the petitioner is unsustainable in law.
• The sanction of the government under Sec. 197 of Cr. P. C. is mandatory as the petitioner is a Government servant the continuation of the proceedings against the petitioner is unsustainable in law.
• The petitioner will have to wait to place all the materials on the record till the proceedings reach the appropriate stage and will have to undergo the ordeal of trial and suffer mental agony.
• In view of the stand taken by the respondent no. 2, the Complainant, the continuation of the prosecution in a ritualistic manner will be a futile exercise, consuming the precious time of the trial court. The documents and material produced by the complainant does not prima facie constitute any offence against the petitioner.
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• The petitioner has no role to play in the modification of the layout plan as the same is of the year 1993 dated 02-12- 1993 wherein the petitioner is not the signatory to the said modification.
• The continuation or the progress of the case will be an abuse of the process of the trial court.
6. Reiterating the above grounds, Sri P.G.Mogali, learned counsel representing the petitioner contended that the modification of the plan took place when father of the petitioner was alive and petitioner had no role in it and therefore, no criminality could be attributed to the petitioner herein. He also contended that the respondent being not the purchaser of any land, has no locus standi to question the action of the petitioner or to proceed criminally against the petitioner and sought for allowing the petition.
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018
7. Per contra, Sri B.V.Somapur, learned counsel for the defacto complainant vehemently contended that the Town Planning Officer after following all necessary rules including the lung space provided in the draft plan, approved the plan given by the father of the petitioner to the department in the year 1989. Instead of getting the modified plan approved from the Town Planning Officer, the father of the petitioner clandestinely approached the Administrator of Gram Panchayath and got modified the plan approved from him without there being any authority by concocting few documents and therefore prima facie materials are available to proceed against the petitioner for the aforesaid offences. He also pointed out that the space which was meant for public park in the plan that was approved by the Town Planning Officer, has been now modified and converted into house sites out of avariciousness of the petitioner and the petitioner being the
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 beneficiary of the said modified plan, cannot now approach this Court seeking quashing of the proceedings duly filed by the respondent herein. He also pointed out that the learned Magistrate at the time of registration of the case itself, has appreciated the prima facie materials in the case and then issued process and thereafter, evidence before charge was recorded which comprises of three witnesses including the complainant and the material documents have also been prima facie appreciated by the learned Magistrate and order dated 26.02.2018 came to be passed in C.C.No.59/2016 and thus sought for dismissal of the petition.
8. In view of the rival contentions, this Court perused the material on record meticulously.
9. Admittedly, a civil suit was filed by the respondent and others in O.S.No.13/2015. However, on account of some technical difficulties in continuing the suit, the said suit came to be
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 withdrawn. Learned Magistrate while permitting the suit to be withdrawn however observed that the petitioner cannot file a second suit on the same cause of action, but if they have got new cause of action, they may do so. Thereafter, respondent and others have filed O.S.No.23/2017 which is now pending for adjudication. In the meantime, during the course of civil proceedings O.S.No.13/2015, the petitioners came to know about the alteration of the plan which was sanctioned and also the Administrator of the Gram Panchayath having sanctioned the modified plan. Immediately they also collected other materials on record which would go to show that the father of the petitioner has obtained a modified plan from the Administrator of the Gram Panchayath. When the original plan was sanctioned by the Town Planning Officer of the Government from the authorized department, how could an Administrator of a Gram Panchayath can
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 permit a modified plan is a question that is to be decided during the civil suit. Whether at all the Adminstrator of the Gram Panchayath had authority to issue modified plan or not is a matter to be decided in the pending civil suit and it is too premature for this Court to express any opinion on the said aspect of the matter. Prima facie the petitioner being the son of the person who originally obtained the sanction plan and formed the layout and thereafter, obtained the modified plan clandestinely by approaching the Administrator of the Gram Panchayath and altered the premises which was meant for public use namely public park, the respondent has got a right to proceed against the petitioner.
10. It is settled principles of law that criminal law can be set into motion by anybody and the question of locus standi has no meaning whatsoever in respect of the offences under the criminal law.
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CRL.P No. 100015 of 2019 C/W WP No. 103561 of 2018 Therefore, contentions urged on behalf of the petitioner that the defacto complainant had no locus standi to present the complaint cannot be countenanced in law. Further, the petitioner is the beneficiary of the alleged modified plan whereunder public park has been converted into sites. These are the matters that are required to be adjudicated during full pledged trial and necessary finding is to be recorded.
11. It is always open for the petitioner to challenge the action intended by the petitioner by placing such materials during the course of trial and seek necessary orders at the hands of the learned Magistrate itself. Therefore, this Court is of the considered opinion that the grounds urged in the petition are not sufficient enough to set aside the order dated 26.02.2018 and to dismiss the plan. Hence, this Court pass the following:-
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ORDER Admission declined. The petitions are dismissed.
SD/-
JUDGE CLK