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2020 DIGILAW 125 (KAR)

Haresh Kumar v. State Of Karnataka And Another

2020-01-14

B.A.PATIL

body2020
JUDGMENT 1. This petition has been filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. praying to quash the FIR in Crime No.42/2018 dated 21.5.2018 pending on the file of IV Additional Chief Metropolitan Magistrate Court, Bengaluru, for the offence punishable under Section 192A of the Karnataka Land Revenue Act and also under Sections 217, 409 and 420 of Indian Penal Code. 2. I have heard the learned Senior Counsel Sri. K. Shashikiran Shetty appearing for the petitioner and the learned High Court Government Pleader for respondent- State. 3. A complaint has been given by one Sri. K.R. Rajashekar Reddy alleging that the petitioner has encroached Rajkaluves and kharab land and encroached 17 guntas of A Kharab Land and they have not paid any regularization fee insofar as the kharab land is concerned and on the basis of the same notice has been issued and a complaint has been registered and FIR has also been registered. Challenging the same petitioner is before this Court. 4. It is the contention of the learned Senior Counsel for the petitioner that the entire material which has been produced clearly goes to show that it is abuse of process of law. It is his further submission that petitioner-accused is a Registered Company and doing real estate business and by virtue of the order of the Revenue Authorities the said land and the Nalla has been diverted. Without looking to the said facts, the case has been registered as against the petitioner-accused. It is his further submission that the allegation made in the complaint does not constitute any offence under Section 192A of the Karnataka Land Revenue Act and also consequently the other sections of the Indian Penal Code. It is his further submission that in order to proceed against Section 192A of the Karnataka Land Revenue Act an opportunity should have been given to the persons against whom the alleged encroachment of the Government land has been made. Without following the procedure laid down and without following the Circular issued by the Government, the present proceedings have been initiated. In order to substantiate the said contention he has relied upon the decision in the case of Smt.Lalitha Sastry v. State of Karnataka reported in ILR 2008 Kar 4520 . Without following the procedure laid down and without following the Circular issued by the Government, the present proceedings have been initiated. In order to substantiate the said contention he has relied upon the decision in the case of Smt.Lalitha Sastry v. State of Karnataka reported in ILR 2008 Kar 4520 . It is his further submission that if at all after producing all the documents and giving an opportunity if the concerned authority is satisfied, then the legal proceedings can be initiated. On these grounds he prayed to allow the petition and to quash the FIR. 5. The learned High Court Government Pleader vehemently and fairly submitted that after verification from the concerned authorities no such opportunity has been given to the petitioner as contemplated under Section 192A of the Karnataka Land Revenue Act and it is his further submission that the procedure laid down as contemplated in the case of Smt.Lalitha Sastry quoted supra has not been followed. On these grounds he prayed that if at all the petitioner is having any grievance he can produce the documents before the Investigating Officer, thereafter the Investigating Officer can come to a right and proper conclusion. On these grounds he prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 7. The main grievance of the petitioner in the present petition is that, the criminal prosecution launched as against the petitioner is without following the principles of natural justice and no hearing opportunity has been given as contemplated in the decision of Smt.Lalitha Sastry quota supra. For the purpose of brevity, I quote paragraph No.4 of the said decision which reads as under: 4. From the aforesaid circular it is clear the Government is now convinced that an opportunity should be given to all those alleged encroachers of Government land before any proceedings are initiated under Section 192 A of the Act. In fact it stipulates a procedure under which a show cause notice is to be given calling upon those alleged encroachers to file their objections within 15 days. If no objections are received authorities are called upon to visit the spot, conduct a Mahazar in the presence of the villagers, obtain their signatures and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. If no objections are received authorities are called upon to visit the spot, conduct a Mahazar in the presence of the villagers, obtain their signatures and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. In the event of alleged encroachers producing documents to examine the same and only in the event of the said documents are found to be fabricated or duplicate, to initiate proceedings under Section 192A of the Act. In fact the said procedure contemplated by the Government satisfy the requirement of principles of natural justice, an opportunity is given to these persons to realise whether they have occupied a Government land and if they are convinced to surrender possession to avoid criminal prosecution. That would meet the ends of justice. In that view of the matter, as the criminal prosecution is launched against all these petitioners without affording an opportunity to have their say and in the light of the circular which is passed by the Government, these proceedings cannot be sustained. 8. On close reading of the ratio laid down in the decision it indicates that in the event of alleged encroachers producing document to examine the same and only in the event of the said documents are found to be fabricated or duplicate, to initiate proceedings under Section 192A of the Karnataka Land Revenue Act, then the required proceedings can be initiated. It is the specific contention of the learned Senior counsel that to the first notice dated 6.12.2017 he has produced the relevant documents and subsequently one more notice has been issued without giving any opportunity and it is his further submission that the Deputy Commissioner has granted permission to change the direction of the Rajkaluves and the Nalla as per the order dated 2.12.2014 and he has also further produced the records to the effect that necessary permission has been obtained. That is the matter which has to be considered and appreciated by the concerned authority in accordance with law. When the law mandates that an opportunity has to be given before initiating the proceedings under Section 192A of the Karnataka Land Revenue Act, without following the same, initiation of the proceedings cannot sustain in law. In that light, I am of the considered opinion that it is a fit case to exercise the power under Section 482 of Cr.P.C. 9. In that light, I am of the considered opinion that it is a fit case to exercise the power under Section 482 of Cr.P.C. 9. In that light, the petition is allowed and the proceedings initiated in FIR No.42/2018 dated 21.5.2018 pending on the file of IV Additional Chief Metropolitan Magistrate Court, Bengaluru City, for the offence punishable under Section 192A of Karnataka Land Revenue Act and also under Sections 217, 409 and 420 of Indian Penal Code are hereby quashed. But however, the respondent is at liberty to follow the procedure laid down as quoted in the decision supra and thereafter take the steps in accordance with law.