Shankar Kumar vs State

K.N. Phaneendra, J.—The petitioner approached this Court seeking quashing of the entire proceedings in C.C. No. 22578/2011 pending on the file of X Additional Chief Metropolitan Magistrate, Bangalore, registered against the petitioner for the offences punishable under Section 447 of the Indian Penal Code and Section 192-A of Karnataka Land Revenue Act.

I have heard the arguments of the learned counsel for the petitioner and the learned HCGP for the respondents. Perused the record. The FIR submitted by the Tahsildar, Bangalore East Taluk, Krishnarajapuram, Bangalore, disclose that the petitioner has encroached upon the Government''s land bearing Sy. No. 4/1 of Kowdenahalli Village, K.R. Puram Hobli, Bangalore East Taluk and he has also constructed a house there. Inspite of best efforts by the Revenue Inspector, the said person has continued to construct the said house. Therefore, the Tahsildar has lodged the complaint under the aforesaid provisions and the police have registered a case in Crime No. 95/2011 and investigated the matter and submitted the charge sheet before the X Additional Chief Metropolitan Magistrate, Bangalore, who took cognizance and issued summons to the accused. Infact, the accused appeared before the Court and enlarged on bail and it appears that the case is now set down for recording plea of the accused.

Learned counsel for the petitioner strenuously contends that the complaint (FIR) lodged by the Tahsildar itself is not maintainable and the subsequent charge sheet and taking cognizance is also bad in law in view of the Judgment rendered by this Court in W.P. No. 3969/2007 and connected matter dated 22.09.2008 and also a Circular issued by the Government in No. RD. 674.LGB.2008. I have carefully perused the decision rendered by this Court, wherein several writ petitions were filed challenging the order of the Tahsildar, wherein he has complained about certain persons that they have encroached into the Government land and in view of the provisions under Section 192-A of the Karnataka Land Revenue Act and also under Section 447 of IPC the said persons have been prosecuted. On perusal of the order of this Court in the said writ petition, in some of the cases, Crime number was registered and investigation was in process and in some of the cases, the charge sheets had already been filed and the Court has taken cognizance and issued summons to the accused. Considering all these stages of the cases, the Court has passed the order quashing such proceedings on the ground that the Government has issued the notification in No. RD. 674.LGB.2008 dated 08.09.2008 fixing some guidelines to the competent authorities, i.e., revenue authorities to follow certain guidelines before initiating any criminal proceedings under Section 192-A of the Karnataka Land Revenue Act. It is worth to note that the said notification, which is quoted in the Judgment reads as follows:

Relying upon the said notification, the Court has held that the procedure contemplated by the Government shall be satisfied before lodging of such complaint against the persons, who alleged to have encroached upon the Government land. At Paragraph 4, this Court has held in the following manner:

"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 192A 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. 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 realize 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."

Applying the above said principles to the present facts of the case also, the Tahsildar never stated in the FIR itself that he has issued any notice to the petitioner herein and secured his reply and whether he has inspected the spot and drew up mahazar and followed direction as issued by the Government in the above said notification. Without doing that, in view of the above said circumstances, the FIR itself should not have been entertained by the police and the Court at least at the time of taking cognizance would not have taken cognizance and issued summons to the accused. Perhaps all these might have been occurred for the reason that the notification and the Judgment of this Court have not been brought to the notice of either the Investigating Officer or the JMFC, who has taken cognizance of the offences. Looking to the, above said circumstances, in view of the aforesaid decision of this Court, the proceedings before the Trial Court is not sustainable. Hence the same is liable to be quashed.

Though this Court has inclined to quash the proceedings, it does not mean that the Tahsildar has no remedy at all. The Tahsildar even now can follow the guidelines as per the Government Order noted above and after following the guidelines if he still comes to the conclusion that the offences has been committed under Section 447 of IPC and Section 192-A of the Karnataka Land Revenue Act, the Tahsildar is at liberty to move the police or the Court for appropriate remedy by means of filing complaint before the competent Court of law. Quashing of this proceeding shall not be treated as a bar either by the police or by the Court, if fresh proceedings is initiated after following the guidelines in the aforesaid decision.

With these observations, the petition stands allowed. The proceedings pending before the X Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 22578/2011 is hereby quashed.