Karnataka High Court
Mr Pavalraju @ Vincent vs State Of Karnataka on 1 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 5752 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5752 OF 2021
BETWEEN:
1. MR.PAVALRAJU @ VINCENT
AGED 66 YEARS
SON OF LATE DORAI RAJ
NO.121, 6TH CROSS
KAMMANAHALLI
BENGALURU - 560 084
PRESENTLY RESIDING AT
NO.79, 5TH CROSS, P AND T LAYOUT
HORAMAVU, KALYAN NAGAR POST
BENGALURU - 560 043.
2. MRS. USHA RANI @ RACHEL
WIFE OF PAVAL RAJU @ VINCENT
AGED 51 YEARS
NO.121, 6TH CROSS
KAMMANAHALLI,
Digitally signed by
BENGALURU - 560 084
PADMAVATHI B K
Location: HIGH
PRESENTLY RESIDING AT
NO.79, 5TH CROSS, P AND T LAYOUT
COURT OF
KARNATAKA
HORAMAVU KALYAN NAGAR POST
BENGALURU - 560 043.
...PETITIONERS
(BY SRI. REGO L.P.E., ADVOCATE)
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CRL.P No. 5752 of 2021
AND:
1. STATE OF KARNATAKA
BANASWADI POLICE STATION
BENGALURU - 560 043
REPRESENTED BY ITS
CIRCLE INSPECTOR OF POLICE.
2. MR.CHANDRA SHEKAR
AGED 33 YEARS
SON OF BALA
RESIDING AT NO.49/8
14, ULLASAPPA ROAD
KAMMANAHALLI
BENGALURU - 560 084.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
R2 IS SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET DATED
05.10.2019 UNDER SEC.323, 448 R/W 34 OF IPC FILED BY THE
BANASWADI P.S. IN C.C.NO.54728/2020 ON THE FILE OF THE
XI A.C.M.M., MAYO HALL, BENGALURU CITY GRANTING
SIMULTANEOUSLY TO THE PETITIONERS THEIR COSTS.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are accused Nos.2 and 3 - husband and wife, are before this Court calling in question proceedings -3- CRL.P No. 5752 of 2021 in C.C.No.54728/2020, pending before the XI Additional Chief Metropolitan Magistrate, Mayo Hall, Benglauru, registered for the offences punishable under Sections 323 and 448 r/w. 34 of the IPC.
2. Heard Sri Rego L.P.E., learned counsel for the petitioners and Sri K.S.Abhijith, learned High Court Government Pleader appearing for respondent No.1.
3. Brief facts of the case leading to the filing of the petition as borne out from the pleadings are as follows:
The subject property belongs to one Albert M. Albert M. executed a will bequeathing the subject property to the second petitioner - one Mrs. Usha Rani and her brother one Prabhu Kumar. On 26.09.2017, Albert M., dies. Probate proceedings are instituted by the second petitioner, in whose favour the property has been bequeathed. During the pendency of the probate -4- CRL.P No. 5752 of 2021 proceedings, the brother of the second petitioner one Prabhu Kumar alienates the property that was bequeathed to the second petitioner, in favour of the second respondent - complainant and the second respondent therefore, comes in occupation of the property in question and claims ownership of the said property.
4. That on a particular date i.e., 30.03.2019, when the petitioners went to inspect the property, they found that the property of Albert M., bequeathed to petitioner No.2 was occupied by the complainant. There were some altercations with respect to the property between the complainant and petitioner No.2. Based upon this act, the complainant registers a complaint in PCR.No.52402/2019, before the learned Magistrate, invoking Section 200 of the Cr.P.C. The Magistrate having referred the matter, a FIR is registered in Crime No.239/2019. After the registration of the said crime, the second petitioner and her daughter institute P and S C proceedings in P and S C -5- CRL.P No. 5752 of 2021 No.25020/2018, seeking probate of the Will. Pending those proceedings, the police filed charge sheet against the petitioners for the offences under Sections 323, 448 r/w. 34 of the IPC in C.C.No.54728/2020. It is the filing of the charge sheet, that drives the petitioners to this Court in the subject petition.
5. The learned counsel for the petitioners would contend that the complainant after purchasing the property from the hands of one Prabhu Kumar, had further sold it in favour of one Shashikala on 24.01.2019 and the complaint comes to be registered on 05.05.2019, alleging house trespass without the complainant being in possession of the property. He would further contend that very registration of the complaint was in violation of the principles laid down by the Apex Court in the case of PRIYANKA SRIVASTAVA VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287, which is followed subsequently in the case of BABU -6- CRL.P No. 5752 of 2021 VENKATESH AND OTHERS Vs. STATE OF KARNATAKA AND ANOTHER reported in (2022) SCC Online SC 200.
6. Learned High Court Government Pleader would seek to justify the filing of the charge sheet on the ground that there is a statement of the eyewitness, who has seen the incident and would submit that it is a matter of trial for the petitioners to come out clean.
7. Respondent No.2 though served, has remained absent throughout and even as on date.
8. I have given my anxious consideration to the submissions made by the learned counsel for both parties and have the perused the material on record.
9. The afore-narrated facts are not in dispute. The entire crime now that is registered is triggered by the -7- CRL.P No. 5752 of 2021 registration of a private complaint by respondent No.2 - complainant on 10.04.2019. The private complaint dated 10.04.2019, insofar as it is germane for consideration of the present lis are as follows:
"7. The complainant has lodged a complaint with the Banaswadi police station on 31.3.2019 about the incident which bears re. No.76 and in GSC No.P.01406190600271, and a copy of the same is produced herewith.
8. The complainant submit that inspite of lodging of complaint the police have not taken any action against the said accused persons and others, and hence there is likelihood that the accused may repeat their activities once again if they are not apprehended.
9. The complainant submit that even though the complaint has been given to the jurisdictional police by the complainant but so far no action has been taken against the accused and the other miscreants who have committed the crime.
10. The complainant submit that the accused have thus committed serious offences of criminal -8- CRL.P No. 5752 of 2021 trespass, attempt to robbery, and other offences, which are punishable under provisions of Indian Penal code.
11. The complainant submit that he is the lawful owner of aforesaid property having sale deed and khata in his name, and the intention of accused is to make illegal and unlawful gain by using force.
12. The complainant is herewith producing copy of the sale deed, tax paid receipt, khata for kind perusal of this hon'ble court to confirm the ownership in respect of his property.
13. The complainant is producing copy of the complaint lodged with Banaswadi police for kind perusal of hon'ble court.
14. The complainant is put to untold hardship due to the act of the accused persons who have no regard or respect for law., and they attempted to commit robbery by breaking open the lock i.e., house breaking and are liable to be punished for offences committed by them."-9- CRL.P No. 5752 of 2021
The learned Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C., which then becomes a crime in Crime No.239/2019. A perusal at the documents appended to the petition, the complaint in particular, would clearly demonstrate that it is not in compliance with the rigors laid down in the judgment by the Apex Court in the case of PRIYANKA SRIVASTAVA (supra), wherein the Apex Court mandates compliance of Section 154(1) and (3) of the Cr.P.C., has also filing of an affidavit in the manner known to law along with the registration of a private complaint.
10. The Apex Court in the case of PRIYANKA SRIVASTAVA (supra), has held as follows:
"30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the
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allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial
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dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
The said judgment is further upheld by the Apex Court in the case of BABU VENKATESH (supra), wherein, the Apex Court has reiterated the said rigors laid down in the case of PRIYANKA SRIVASTAVA (supra). Though the complaint is registered prior to the judgment of BABU VENKATESH (supra), the judgment in the case of PRIYANKA SRIVASTAVA (supra) was already in place. Therefore, the private complaint without compliance of Section 154(1) and (3) of the Cr.P.C. was not even maintainable as no affidavit is appended to the complaint. The complaint also does not indicate that the complainant has made efforts to register the crime before the jurisdictional police and they have taken no action and the
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CRL.P No. 5752 of 2021complainant has further approached the Superintendent of Police against no action being taken by the jurisdictional police. Therefore, in the light of the judgments of the Apex Court and the complaint not being in compliance with Section 154(1) and (3) of the Cr.P.C., proceedings further taken up, is nullity in law.
11. It is further germane to notice that the complainant comes in possession of a property from the hands of the brother of petitioner No.2 on 12.09.2018. He further sells it to one Shashikala D. on 24.01.2019 and vacant possession of the site is delivered to the purchaser. Therefore, the complainant was not in possession of the property. Not being in possession one can hardly allege offence punishable under Section 448 of IPC, the ingredients of which is found in Section 441 of the IPC. Therefore, the complainant not being in possession of the property could not even allege criminal trespass or house
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CRL.P No. 5752 of 2021trespass against the petitioners. It is also relevant to notice that the parties to the lis are before the civil Court thrashing out their respective rights. Therefore, it is a clear case where a civil dispute is given a colour of crime.
12. For the aforesaid reasons, the following:
ORDER i. The criminal petition is allowed.
ii. The proceedings in C.C.No.54728/2020, pending before the XI Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, against the petitioners, stand quashed.
iii. It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioners under Section 482 of the Cr.P.C. This would not bind
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or influence any proceedings before any judicial fora between the parties to the lis.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 312