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2020 DIGILAW 1811 (KAR)

Santhosha v. State Of Karnataka

2020-09-18

B.A.PATIL

body2020
JUDGMENT B.A. Patil, J. - The present petition is filed by petitioner/accused Nos.1 to 5 under Section 482 of Cr.P.C. to quash the FIR in Cr.No.105/2020 of Huliyar Police Station for the offences punishable under Sections 457 and 380 of IPC. 2. I have heard Sri. Ramesh K.R, learned counsel for the petitioners and Sri. M.Divakar Maddur, learned HCGP for respondent No.1. Though, notice has been served to respondent No.2, there is no representation on his behalf. 3. The brief facts of the case of the complaint are that the complainant is having a shop at Dr.Rajkumar Road under the name and style "Sri Chennakeshava traders". It is further alleged that on 01.06.2020 he opened the shop and noticed that on 28.06.2020 during the night hours by breaking open the lock worth Rs.31,000/- cattle food and Rs.20,000/- cash and one cash table and two chairs have been stolen. It is further alleged that on 29.06.2020 when the complainant came to open the door of the shop, he noticed that Kumara and Dayananda were opening the door of the shop and when he made an enquiry with them, they told that petitioner No.4/Basavaraju has rented the shop to them. On suspicion, a complaint has been filed as against the petitioners/accused. On the basis of the said complaint, a case has been registered. 4. It is the submission of the learned counsel for the petitioners/accused that a false complaint has been registered as against them. Petitioners/accused Nos.2 & 3 have filed a Civil Suit in O.S.No.59/2020, which is pending and thereafter, on 09.06.2020, an interim order has been granted restraining the defendant or their agents or servants from interfering with the possession of the property. It is his further submission that the said complaint has been filed as a counter blast for having filing the suit. He further submits that if the contents of the complaint are perused, earlier, the date in the complaint is mentioned as 07.06.2020 on both the sides and subsequently, the same has been altered and filed on 03.07.2020. It is his further submission that even the said complaint contains that the earlier complaint has also been filed in this behalf. That itself clearly goes to show the falsity of the contents of the complaint. It is his further submission that though notice has been served on respondent No.2 by this Court, he has remained absent. It is his further submission that even the said complaint contains that the earlier complaint has also been filed in this behalf. That itself clearly goes to show the falsity of the contents of the complaint. It is his further submission that though notice has been served on respondent No.2 by this Court, he has remained absent. On these grounds, he prayed to quash the proceedings. 5. Per contra, learned HCGP vehemently argued and submitted that there are specific allegations made as against the petitioners/accused for having involved in the offence by trespassing the shop and committing the theft. It is his further submission that the matter requires consideration. On these grounds, he prayed to dismiss the petition. 6. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records. 7. On perusal of the contents of the complaint dated 03.07.2020 registered by the respondent-police at about 12.00, in the first instance, the date has been mentioned as 07.06.2020 and subsequently, the same has been altered as 03.07.2020. Even in the said complaint it has been mentioned that he has given the complaint earlier and what action has been taken in this behalf has not been stated in the said complaint. Be that as it may. It is the submission of the learned counsel for the petitioners/accused that Petitioner Nos.2 and 3 have filed a civil suit in O.S.No.59/2020 before the Court of the Civil Judge at Chikkanayakana Halli, Tumakuru and an interim injunction has been granted by the Additional Civil Judge and JMFC, Chikkanayakanahalli on 12.06.2020. 8. It is his further submission that the complainant after coming to know about filing of the suit and granting of the interim order, only with an intention to harass the petitioners, a false complaint has been registered. It is a trite law that the criminal prosecution is not used as an instrument of harassment or for seeking a private vendetta or with an ulterior motive to pressurize the accused then under such circumstances, the Court can exercise the power under Section 482 of Cr.P.C and quash the proceedings. This preposition of law has been laid down by the Hon'ble Apex Court in the case of INDER MOHAN GOSWAMI AND ANOTHER V/S STATE OF UTTARANCHAL AND OTHERS, (2007) 12 SCC 369 at para Nos.23, 24, 46 which is observed as under: "23. This preposition of law has been laid down by the Hon'ble Apex Court in the case of INDER MOHAN GOSWAMI AND ANOTHER V/S STATE OF UTTARANCHAL AND OTHERS, (2007) 12 SCC 369 at para Nos.23, 24, 46 which is observed as under: "23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the satute itself and in the aforementioned cases. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the satute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained." Keeping in view the ratio laid down in the citation quoted supra and on perusal of the records, it indicates that the suit has been filed by the petitioner/accused Nos.2 and 3 on 11.06.2020 and subsequently, an interim order has been obtained on 12.06.2020 restraining the defendant or their agents or servants to interfere in the possession of the Plaintiffs in any manner and the said suit is still pending. On perusal of the content of the complaint, it indicates that subsequently on 03.07.2020, the present complaint has been filed only on suspicion and no specific allegations have been made. Even the contents of the complaint goes to show that the shop was opened on 01.06.2020 and there is a gap of three days from 28.05.2020 to 01.06.2020 and nobody has noticed the said incident. There is no explanation as to why three shop were not opened. By taking into consideration the civil suit which is pending and the subsequent filing of the complaint after an interim order, it amounts to nothing but the complaint has been filed only with a personal vendetta to pressurize the petitioners/accused and it is nothing but the abuse of process of law. Taking into consideration the decision quoted in Inder Mohan Goswami's case (supra), I pass the following order: Petition is allowed and the proceedings initiated in crime No.105/2020 of Huliyar Police station for offences punishable under Sections 457 and 380 of IPC are hereby quashed insofar as petitioners/accused are concerned.