Shivaputrappa vs State of Karnataka and Others

K.N. Phaneendra, J.—Petitioner has approached this Court seeking to quash the entire proceedings in C.C. No. 225/2013 (arising out of P.C. No. 32/2008) pending on the file of JMFC, Shorapur.

The brief factual matrix that emanate from the records are that complainant - Ramappa S/o. Mahantappa Allipur lodged a private complaint in P.C. No. 32/2008 for the offences punishable under Sections 447, 427, 380, 504, 506 r/w Section 34 of I.P.C. The said private complaint appears to have been referred to the police for investigation and report. The jurisdictional police, after due investigation, submitted ''B'' final report specifically stating that complaint allegations are false and the parties are fighting for their remedies before the civil Court and they are in the habit of lodging complaints against each other. After filing of ''B'' summary report, the complainant has contested the proceedings by filing protest petition. The sworn statement of the complainant was recorded before the Court. Ramappa was examined as PW 1 and Gowramma was examined as P.W. 2. They have reiterated the complaint allegations stating that on 17.07.2008, the mother of the complainant went to their land situated at Sy. No. 9/Aa measuring 12 acres 28 guntas of Badlapur village, Tq. Shorapur. At that time, accused Nos. 1 to 4 started cutting and removing Neem trees and two Advi sandalwood trees. When the mother of the complainant obstructed the accused, they abused her in filthy language and they have also threatened the complainant and his mother with dire consequences etc. On the basis of the complaint averments and sworn statement, the learned Magistrate has rejected ''B'' summary report, took cognizance of the offences and issued summons calling upon the accused persons to explain as to why action should not be taken against them in accordance with law. At that juncture, the present petition is filed.

The learned counsel for the petitioner raised two important aspects in this case. One is, if the Court looks into the surrounding circumstances, it clearly goes'' to show that due to private vengeance the present private complaint is filed. Further, parties are fighting before the civil Court for their remedies and in fact, accused/petitioner was successful in his suit in O.S. No. 24/2002 which came to be decreed on 28.03.2013. The complaint and his mother also filed a suit against the petitioner and other accused in O.S. No. 120/2001 in respect of the same property and they failed before the Trial Court as well as before the first appellate Court in R.A. No. 14/2013 on the file of the Senior Civil Judge and JMFC at Shorapur, and also before this Court in RSA No. 200207/2014. These are all undisputed facts between the parties.

Sri S.S. Mamadapur, learned counsel appearing for respondent No. 2 has submitted that there is no dispute with regard to the pendency of the suits between the parties and disposal of those cases. But he submits that the allegations made in the complaint and the sworn statement constitute offences alleged, therefore, this Court relying upon the extraneous documents cannot quash the proceedings.

Of-course, this Court is debarred from relying upon extraneous documents unless it is shown to the Court that those documents are genuine, admitted documents and unique documents, where the Court without providing opportunity to lead evidence can lay its hands on such documents. By prima facie looking to the said document if the Court is of the opinion that due to private vengeance or in order to wreck vengeance the present complaint is filed, then the Court can exercise power under Section 482 of Cr.P.C.

A Landmark decision rendered by the Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , has laid down certain guidelines. I only quote important guidelines which are applicable to the facts of this case.

i) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

ii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In such circumstances also the Court can interfere with the said proceedings and quash all further proceedings in a criminal case.

Bearing in mind the above said guidelines, now let me consider the materials on record.

Of-course, the complaint averments and the sworn statement disclose the allegations that accused persons have cut and removed the trees and disturbed the bund in between the lands of the parties and they abused the mother of the complainant in filthy language and also threatened them with dire consequences. The entire case emanate with reference to the possession of the property and therefore, the complainant invoked Sections 447, 427 and 380 of I.P.C. and in that context, it is said that offences were committed under Sections 504 and 506 of I.P.C. also.

The records produced before the Court are certified copies of the judgment in O.S. No. 24/2002 and O.S. No. 120/2001. As I have said that these documents are admitted and the judgments rendered by the Courts in those cases are also admitted and it is also not disputed that the complainant and mother had filed O.S. No. 120/2001 before the Civil Judge (Junior Division), Shorapur and the said case came to be dismissed. It is quite notable point that, in the said suit, the plaintiff i.e., the complainant and his mother claimed that they are the owners in possession and enjoyment of Sy. No. 9/Aa measuring 12 acres 26 guntas situated at Badalapur village. The defendants (accused) have contested the said suit and the said suit came to be dismissed holding that plaintiffs were not at all in possession and enjoyment of the property. On the other hand, one of the accused i.e., Shivaputrappa also filed O.S. No. 24/2002 in respect of the same property claiming himself as the person in possession and enjoyment of the said property and there was interference by the defendants i.e., complainant and his mother. The said suit came to be decreed in favour of the plaintiff (petitioner herein) and defendants i.e., the complainant and his mother were permanently restrained from cutting, and removing Tamarind, Neem and Jali trees existing on earthen bund of Sy. Nos. 9/A1 and 9/A2 situated at Badalapur village. Therefore, it goes without saying that both the persons have fought against each other with reference to the same property and accused/petitioner declared to be in possession and enjoyment of the said property and actually the complainant and his mother were restrained from interfering with the possession and enjoyment of the property by the accused persons. When suits were pending, it appears the complainant has also filed an application under Order 39 Rule 2(A) of C.P.C. alleging violation of the injunction order granted by the Court. The allegations made as could be culled out from the judgment of the Civil Judge (Junior Division), Shorapur, in O.S. No. 120/2001 that accused/petitioner herein has wrongfully entered into the land cut and removed the trees and violated injunction order. It is observed by the said Court that plaintiffs have miserably failed to prove the allegations made against the defendants regarding demolition of the portion of bund, therefore, the said application came to be dismissed on 31.01.2009 itself. Perhaps, at the time of filing the application before the Court under Order 39 Rule 2(A) of C.P.C., simultaneously, the complainant has also filed private complaint on 20.08.2008. The complaint averments also disclose that the incident had happened on 17.07.2008. Simultaneously two proceedings were initiated. One before the Civil Court under Order 39 Rule 2(A) of C.P.C. and another one by filing private complaint Perhaps, considering all the surrounding circumstances, the police have investigated the matter and filed ''B'' final report stating that the allegations are false. This observation in the ''B'' final report by the police is not a strange report by the police but it is the observation of the civil Court in O.S. No. 120/2001 also. Therefore, this Court while dealing with the provisions under Section 482 of Cr.P.C., cannot brush aside the ''B'' final report submitted by the police. Normally, the Court should not see the ''B'' final report submitted by the police when the compliant averments and the sworn statement constitute any offence alleged. But where the parties have made out circumstances to show that contents of ''B'' report is supported by other admitted documents and unique documents, the Court can also look into the report submitted by the police.

Looking to the above said circumstances, it is clear that the complainant and his mother themselves were restrained by the Court from interfering with the peaceful possession and enjoyment of the land by the accused persons. Therefore, in my opinion, the question of accused/petitioner trespassing into the land of complainant and removing bund or cut the trees, does not arise for consideration. When basis of lodgment of complaint itself is falsified with regard to the wrongful entry into the land, removing trees and bund by the judgments of the civil Court, in my opinion, the offences under Sections 504 and 506 are nothing but half shoot to Section 447 as well as Section 427 of I.P.C. Therefore, when trespass, commission of offence and cutting of trees itself is disbelieved, the commission of offences under Sections 504 and 506 of I.P.C., in my opinion, if accepted would cause severe injustice to the accused/petitioner.

Looking to the above said circumstances, it is crystal clear that in order to wreck private vengeance, the criminal proceedings has been initiated. Therefore, it clearly disclose after disposal of the suit in the year 2009 so far as the complainant case is concerned and the disposal of the case in the year 2013 pertaining to the suit of the accused/petitioner, though complainant has produced the judgment in O.S. No. 120/2001, they have not stated about the pendency of the suit filed by the accused/petitioner against the complainant. Of-course, that itself cannot be a ground to quash the proceedings but the Court has to look into the cumulative effect of the materials on record. If the Court is satisfied that if the complaint is continued, virtually amounts to abuse of process of law, in such an event, the Court should not hesitate to quash such proceedings. In my opinion, the matter between the parties with regard to the possession and enjoyment of the land has already been decided by the Courts of law as noted above, therefore, continuance of the criminal case between the parties will virtually amounts to abuse of process of law. The complaint deserves to be quashed.

Therefore, I pass the following:

ORDER

The petition is allowed. All further proceedings in C.C. No. 225/2013 pending on the file of JMFC, Shorapur, is hereby quashed.