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Karnataka High Court · body

2017 DIGILAW 1031 (KAR)

PURNIMA v. STATE OF KARNATAKA

2017-07-11

BUDIHAL R.B

body2017
ORDER : BUDIHAL R.B, J. 1. This petition is filed by the petitioner/accused No.1 under section 482 of Cr.P.C., 1973 praying the Court to quash the entire proceedings and the private complaint filed by respondent No.2/complainant vide PC.No.236/ 2013 now converted into C.C.No. 1230/2013 on the file of II JMFC Court Hubballi produced vide Annexure-B; also sought for quashing of the charge sheet filed by PSI Vidyanagar Police, Hubballi in MAG No.171/2013 (C.C.No. 1230/2013) dated 24.08.2013 vide Annexure-C and to set-aside the order passed by the II JMFC Hubballi in C.C.No. 1230/2013 dated 24.10.2013 vide Annexure-D in sofar it relates to petitioner/accused No. 1. 2. Brief facts of the case as per the complaint averments are that respondent No.2 herein filed a Private Complaint No.236/2013 against the petitioner and 3 (three) other persons for the offences publishable under Sections 323, 324, 341, 342, 447, 504, 506 r/w 34 of I.P.C. The complaint averments show that there was a dispute regarding ancestral residential house situate at Vidya Nagar, Hubli, The present Petitioner had filed a petition bearing P & S.C. No.8/2006 for issuance of Letter of Administration and Probate under section 278 of Indian Succession Act, 1925, based on the registered Will executed by her mother, before the Hon'ble 1st Additional District and Sessions Judge, Dharwar. The Petitioner is an younger sister of the husband of the complainant. The husband of the complainant, one Mr.Manjunath S/o Naganagouda Kulkami had initially filed O.S.249/2006 before the III Additional Senior Civil Judge, Hubli seeking for the relief of partition and separate possession of the property comprising of residential building along with open space in Plot No.46 situated at Vidya Nagar, Hubli. Later on, both the above cases were clubbed and the suit bearing O.S.249/ 2006 filed by the husband of respondent No.2/complainant, was re-numbered as O.S.No.6/2012 and the petition bearing No. P&S. C.No.8/2006 has been converted into O.S.No.5/2011. The I Additional District and Sessions Judge, Dharwar, by his order dated 31.01.2013 was pleased to dismiss O.S. No.5/2011 filed by the present petitioner and decreed the suit bearing O.S.No.6/2012 filed by the husband of respondent No.2. Thereafter, the husband of respondent No.2 had filed final decree proceedings in FDP No. 1/2013 before the I Additional District Judge, Dharwar and the same is pending. Thereafter, the husband of respondent No.2 had filed final decree proceedings in FDP No. 1/2013 before the I Additional District Judge, Dharwar and the same is pending. The complainant further alleges that the petitioner, who is arrayed as accused No.1, along with other accused by colluding with each other against the complainant and her husband in order to cause loss to the residential property, came to the house of the complainant on 09.08.2013 at around 4.00pm in 2 (two) different vehicles. All the accused and three others illegally entered into the house of the complainant with gundas and assaulted the complainant with fist. Accused No. 1 slapped the complainant on her face and rest of the accused kicked the complainant on her body and thereafter assaulted the husband of the complainant. The complainant and her husband were confined in a drawing room and the accused started sealing rest of the rooms of the house by fixing thick plywood sheets on all the doors of the remaining rooms. It is further alleged by the complainant that, they have ransacked the entire house and threw all the articles and belongings of the complainant in the drawing room. Accused have threatened the complainant for life and further tried to evict the complainant and her husband from the house, some neighbours and passerby's came to the rescue of the complainant. Hence, the said private complaint came to be filed before the JMFC Court. The JMFC Court referred the complaint under section 156(3) of Cr.P.C., 1973 for investigation to Police Inspector, Vidya Nagar, Hubballi and the matter was posted on 16.09.2013 for final disposal. 3. The Police Inspector, Vidya Nagar Police Station, after conducting the investigation filed the charge sheet on 24.10.2013 before the II JMFC, Hubballi. The JMFC Court pre-poned the matter, taken it on board and ordered for taking cognizance of the offence and issued summons to the accused including the present petitioner. 4. By filing the present petition, petitioner/accused No.1 has challenged the legality and correctness of the order of the learned JMFC Court, so also, the very initiation of the proceedings and the charge sheet material on the grounds as mentioned in this petition. 5. Heard the arguments of the learned counsel appearing for the petitioner-accused and the learned counsel for the respondent No.2/complainant, so also, the learned HCGP representing respondent No.1-State. 6. 5. Heard the arguments of the learned counsel appearing for the petitioner-accused and the learned counsel for the respondent No.2/complainant, so also, the learned HCGP representing respondent No.1-State. 6. Learned counsel for the petitioner has submitted that looking to the civil proceedings before the Court, the matter prima-facie appears to be civil in nature. He has also submitted that though the alleged offence took place on 09.08.2013, but the complaint was filed on 16.08.2013 i.e., after the lapse of 7 days, and the said delay is not explained in the complaint. It is also submitted that looking to the charge sheet material, though in the complaint it is mentioned that the accused persons along with gunda elements criminally trespassed into the house and ransacked the house, assaulted the complainant and others, but the complainant given the further statement before the Police, wherein it is stated that only accused persons came to the house and not the gunda elements. Hence, this itself shows that false case has been filed against the petitioner. He has further submitted that regarding the alleged assault, there is no medical certificates produced, on the contrary, complainant and her husband themselves have admitted that they did not gone to the hospital for treatment and there were internal pain injuries, hence, he submitted that this also a false contention raised by the complainant and her husband. It is also his contention that, admittedly when the husband of the complainant and his brothers and sisters are having the right over the properties including the house, there cannot be any criminal trespass by the owners of the said house. He has also submitted that as the petitioner herein filed the complaint before the Police on 10.08.2013 i.e., much earlier to the complaint by respondent No.2 herein, hence, respondent No.2 filed the false complaint subsequently. The alleged eye-witness have admitted in their statement that after the occurrence of the alleged incident, they went to the said place. Therefore, there is no prima-facie material produced by the prosecution and submitted to allow the petition and to set-aside the initiation of the criminal proceedings as against the petitioner herein. In support of his contentions, learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court reported in (2009) 3 SCC (Cri) 751 rendered in the case of Mohammed Ibrahim and others v. State of Bihar and another. 7. In support of his contentions, learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court reported in (2009) 3 SCC (Cri) 751 rendered in the case of Mohammed Ibrahim and others v. State of Bihar and another. 7. Per contra, learned HCGP has submitted that the charge sheet material, so also, the contents of the private complaint makes out prima-facie case against the petitioner. He has also submitted that only because the civil proceedings are pending before the Court, it cannot be said that there cannot be a criminal complaint against the petitioner and other accused, he has submitted that parallel proceedings are allowed under law. Therefore, he has submitted that in view of the charge sheet material, there is no merit in the petition and hence, same is to be rejected. 8. Learned counsel for the respondent No.2/complainant during the course of his arguments has submitted that even if the civil proceedings are pending in final decree proceedings, the petitioner along with other accused persons took the law into their hands and committed the alleged offence. It is also submitted that the photographs produced clearly shows and supports the contentions of the complainant that the household articles were brought and thrown into the drawing room of the said house and the plywood sheets were fixed to the doors of bath room and toilet of the said house. He has also submitted that this is for the reason that the suit filed by the husband of the complainant was decreed holding that everyone is having 1/12th share in the said property and as the husband of the complainant filed the final decree proceedings, only to give threat to the complainant and her husband from proceeding with the said FDP proceedings, the accused persons posed life threat to the complainant and her husband not to proceed with the said FDP case. He has also submitted that there is a prima-facie material for the alleged offence and hence, the complaint and the charge sheet material and the order of taking cognizance cannot be set-aside or quashed by invoking section 482 of Cr.P.C., 1973 9. He has also submitted that there is a prima-facie material for the alleged offence and hence, the complaint and the charge sheet material and the order of taking cognizance cannot be set-aside or quashed by invoking section 482 of Cr.P.C., 1973 9. I have perused the grounds urged in this criminal petition, FIR, private complaint and also the charge sheet material, and the decision relied upon by the learned counsel for the petitioner, which is refereed above, so also, considered the submissions made by the learned counsel on both sides at the bar. 10. Admittedly, according to both sides, there are civil proceedings are initiated and by the judgment and order of I Addl. District Judge, Dharwad, the suit filed by the petitioner herein came to be rejected and the suit filed by the husband of the complainant herein came to be decreed and then the FDP proceedings are also filed by the husband of the complainant. 11. It is the contention of respondent No.2/complainant that to prevent respondent No.2 and her husband from proceeding with the said FDP case, the petitioner herein along with other accused persons and some gunda elements came to the house on the said date i.e., 09.08.2013 at about 4.00p.m., and committed the alleged offence. If the alleged offence was committed on 09.08.2013, there is no explanation in the private complaint as to why immediately the complaint was not filed before the Police. Not only that, the said private complaint was filed on 16.08.2013 i.e., after the lapse of 7 days from the date of alleged offence, and with regard to the said delay, there are absolutely no reasons/explanations offered by the complainant in the private complaint filed under Section 200 Cr.P.C., 1973 12. Perusing the further statement of the respondent No.2/complainant dated 25.8.2013, it is mentioned that on 09.08.2013 at about 4.00p.m. accused Nos.1 to 4 came to the house, but in the last paragraph of the said statement, it is mentioned that along with four accused persons, other gunda elements have not at all came to the place. Hence, as per the further statement only those four accused persons went to the house. Hence, as per the further statement only those four accused persons went to the house. So the further statement of the complainant shows that, there are false averments made in the private complaint that along with four accused persons, some gunda elements were also came into the house and all of them assaulted the complainant & her husband on the date of alleged incident. Apart from that, in the further statement it is mentioned by respondent No.2 that her husband sustained internal pain injury and they got treated in the house itself and not visited any hospital and after discussing in the house, she has lodged the private complaint before the Court. So the further statement shows that there were no any external injuries caused by the petitioners and other accused persons to the complainant and her husband and as alleged, there were only internal pain injuries caused to them. 13. The materials also show that on 10.08.2013 itself the petitioner herein filed the complaint before the Vidya Nagar Police, Hubballi, that respondent No.2/ complainant and her husband along with some persons came and assaulted the petitioner herein and her family members and she requested the Police to take action in accordance with law as against respondent No.2/complainant, her husband and other family members. The petitioner has produced the copy of the said complaint along with this petition. So this shows that on 10.08.2013 itself the petitioner herein filed the complaint before the Vidya Nagar Police, Hubballi as against the complainant and her family members. But the Police advised the petitioner herein that they have called respondent No.2/complainant and her husband and enquired them and they have submitted that they have not at all caused any such incident against the petitioner herein. Hence, the parties were advised to get the relief in the civil suits, which are filed. 14. Regarding the alleged offence of criminal trespass is concerned, admittedly, even according to the case of respondent No.2/complainant, the petitioner and other accused persons, being the relative of the husband of the complainant, are also having the share in the properties including the said house; when that is so, the question of petitioner and other accused persons committing the criminal trespass does not arise at all. 15. 15. I have also perused the statement of witnesses, looking to their statements, it is not their case that they have actually witnessed the incident, but they came to the said place after the incident was over. 16. I have also perused the four photographs produced by the learned counsel for respondent No.2/complainant while arguing the matter. It is no doubt true, in the drawing room some household articles were kept and complainant and her husband were seen in the said photographs and there is a plywood material put to the doors of the said rooms, but in the said photographs neither the petitioner nor the other accused persons were seen to show that they have done all these things. Therefore, only on the basis of these photographs, Court cannot assume that these acts are done by the petitioner and other accused persons. 17. Apart from that, the private is complaint filed by respondent No.2/ complainant under Section 200 of Cr.RC. and the matter was referred to the Police as per section 156(3) of Cr.P.C., 1973 When that is so, respondent No.2/complainant ought to have filed the affidavit supporting the complaint averments, but looking to the materials placed on record, no such affidavit is filed by respondent No.2/ complainant. Therefore, the decision of the Hon'ble Apex Court reported in (2015) 6 SCC 287 : [2015(3) AICLR (S.C.) 183] rendered in the case of Priyanka Srivastava and another v. State of Uttar Pradesh and others is applicable to the case on hand, wherein Their Lordships have laid down the proposition in paragraph Nos.30 and 31 of the said decision as under: "30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C., 1973 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 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. 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 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 Section 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 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 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR." 18. Looking to all these materials placed on record, they show that prima-facie the alleged incident is civil in nature and the civil proceedings are also pending before the Court. Therefore, there is no prima-facie case made out by respondent No.2/complainant. Even if the matter is proceeded with, it will be a futile exercise and waste of valuable time and energy of the Court, which amounts to abuse of the process of the Court. Therefore, there is no prima-facie case made out by respondent No.2/complainant. Even if the matter is proceeded with, it will be a futile exercise and waste of valuable time and energy of the Court, which amounts to abuse of the process of the Court. Therefore, petitioner has made out a case for invoking the jurisdiction under section 482 of Cr.P.C, 1973 and to quash the proceedings initiated against her. 19. Hence, the petition is allowed and the criminal proceedings initiated against the petitioner herein as per P.C.No.236/2013, which is now converted into C.C.No. 1230/2013 on the file of II JMFC, Hubballi and the charge sheet filed by PSI, Vidya Nagar, Hubballi, in MAG No. 171/2013 (C.C.No. 1230/2013) and also the order dated 24.10.2013 passed by the II JMFC, Hubballi in C.C.No. 1230/2013, sofar it relates to the petitioner herein are hereby quashed.