Allowed

Venkatahanumaiah v. State of Karnataka

Karnataka HC15 Mar 2021CRL.P/1158/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition under Section 482 CrPC to quash an order referring a dispute over property trespass and house damage for investigation under Section 156(3). The court held the Magistrate mechanically passed the order without applying his mind to determine if the complaint disclosed an offence.

What did the court decide?

The order referring the matter for investigation under Section 156(3) CrPC dated 09.11.2020 was set aside and the matter was remitted to the Magistrate to pass an appropriate order after applying his

Venkatahanumaiah Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION No.1158/2021

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BETWEEN:

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1 . VENKATAHANUMAIAH S/o LATE MARANNA @ MARAIAH AGED ABOUT 80 YEARS

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2 . RAMAKKA D/O LATE MADAIAH AGED ABOUT 50 YEARS

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3 . M. VENKATESH S/O LATE MADAIAH AGED ABOUT 51 YEARS

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4 . GOVINDARAJU S/O LATE MADAIAH AGED ABOUT 40 YEARS

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5 . LOKESH S/O LATE MADAIAH AGED ABOUT 33 YEARS

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6 . VENKATAPPA S/O LATE MARANNA @ MARAIAH AGED ABOUT 75 YEARS

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7 . MUNIYAPPA S/O LATE MARANNA @ MARAIAH AGED ABOUT 71 YEARS

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8 . CHIKKAHANUMAIAH

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S/O LATE MARANNA @ MARAIAH AGED ABOUT 68 YEARS

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9 . SURESH

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S/O MADAIAH AGED ABOUT 40 YEARS

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10 . MAHADESHA S/O VENKATAPPA AGED ABOUT 48 YEARS

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11 . CHANDRASHEKHARA S/O CHIKKAHANUMAIAH AGED ABOUT 42 YEARS

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12 . NAGARAJU S/O VENKATAPPA AGED ABOUT 35 YEARS

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13 . SRINIVASA S/O CHIKKAHANUMAIAH AGED ABOUT 36 YEARS

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14 . MAREGOWDA S/O VENKATAHANUMAIAH AGED ABOUT 52 YEARS

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15 . RAJANNA S/O VENKATAHANUMAIAH AGED ABOUT 60 YEARS

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16 . KRISHNAMURTHY S/O VENKATAHANUMAIAH AGED ABOUT 50 YEARS

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17 . VENKATANARAYANA S/O MUNIYAPPA AGED ABOUT 50 YEARS

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ALL RESIDING AT MUDDINAPALYA YASHVANTHPUR HOBLI BENGALURU NORTH TALUK BENGALURU 560091

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… PETITIONERS

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(BY SRI HARSHA KUMAR GOWDA H., ADVOCATE)

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AND:

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1 . STATE OF KARNATAKA BY JNANABHARATHI POLICE STATION KENGERI GATE SUB-DIVISION BENGALURU 560056 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU-560001

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2 . SRI VENKATESH S/O LATE NARASAPPA AGED ABOUT 63 YEARS RESIDING AT NO 58/1 NEAR LAKSHMI VENKATESHWARA TEMPLE ROAD, MUDDANAPALYA BENGALURU NORTH BENGALURU-560091

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… RESPONDENTS

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(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1; R2-SERVED)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN CR.NO.288/2020 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 511, 504, 143, 447, 382, 319, 141, 448, 391 R/W SECTION 149 OF IPC PENDING ON THE FILE OF THE LEARNED 9^TH ACMM, BENGALURU.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is filed under Section 482 of Cr.P.C. praying

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this Court to quash the proceedings in Crime No.288/2020 for the offence punishable under Sections 511, 504, 143, 447, 382, 319, 141, 448, 391 read with Section 149 of IPC, pending on the file of IX Additional Chief Metropolitan Magistrate, Bengaluru, and to pass such other reliefs as deem fit in the facts and circumstances of the case.

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The factual matrix of the case is that respondent No.2 herein has filed the private complaint before the learned Magistrate and the same is numbered as P.C.R. No.11855/2020, wherein the allegations are made that the accused persons, who are not having any right, title or interest over the property bearing Sy.No.58 of Ullal Village to the extent of 1 acre 20 guntas have divided the property vide partition deed dated 19.03.2012. Though the petitioners are not having any right, title or interest, that on 07.10.2020 at 11.00 a.m. they came along with their supporters near the house of the complainant and trespassed the house and also brought the JCB and

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demolished the house which belong to the complainant and removed the agricultural equipment. During that time, only the family members of the complainant were present and they were also confined in a room. They also caused damage to the house. Based on this complaint, the learned Magistrate referred the matter under Section 156(3) of Cr.P.C. for investigation. Hence, the petitioners are before this Court challenging the order referring the matter under Section 156(3) of Cr.P.C.

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It is contended that already there was a partition in the family in respect of remaining land to the extent of 1 acre 20 guntas after the acquisition made by the BDA vide document at Annexure-J and they are in possession of the said property. Learned counsel would submit that the learned Magistrate without application of mind, passed an order referring the matter under Section 156(3) of the Cr.P.C.

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This Court had issued notice to respondent No.2 and inspite of service of notice, he did not choose to appear before the Court.

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Per contra, the learned High Court Government

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Pleader appearing for the State would submit that the specific allegations are made in the complaint for having trespassed the property which belong to the complainant and also caused damage to his house. Learned Magistrate has applied his mind and in compliance of the judgment of the Apex Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER v. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287 = AIR 2015 SC 1758 , referred the matter for investigation.

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Having heard the learned counsel for the petitioners and also the learned High Court Government Pleader appearing for the State, the specific allegations are made in the complaint that these petitioners have trespassed the property belongs to the complainant on 07.10.2020 and in the absence of the complainant, the family members were confined in the house and also caused damage to the house belongs to the complainant. Having perused the order passed by the learned Magistrate, though the learned Magistrate has discussed in the

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order that he has perused the contents of the complaint, affidavit and documents and also that though the complainant approached the police, they had not taken any action and hence, approached the Court. No doubt, the learned Magistrate discussed in detail in the order, but has not applied his mind as to whether it is a fit case to refer under Section 156(3) of Cr.P.C. or not by forming an opinion that the contents of the complaint prima facie discloses any cognizable or non-cognizable offence and has mechanically passed the order referring the matter under Section 156(3) of Cr.P.C. Nothing is averred in the complaint so as to form an opinion to refer the matter under Section 156(3) of Cr.P.C. Hence, it requires interference of this Court since the learned Magistrate has not applied his judicious mind and has mechanically passed the order.

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In view of the discussion made above and also the principles laid down in the ratio rendered by the Apex Court in

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MAKSUD SAIYED v. STATE OF GUJARAT AND OTHERS

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reported in (2008) 5 SCC 668 , wherein it has been categorically held that when the complaint is presented, before

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referring the matter for investigation under Section 156(3) of Cr.P.C., the learned Magistrate has to apply his judicious mind and then form an opinion as to whether it is a fit case to refer under Section 156(3) of Cr.P.C. The same is not found in the order. Hence, it is a fit case to exercise powers under Section 482 of Cr.P.C.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) The petition is hereby allowed.

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(ii) The order dated 09.11.2020 passed by

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the learned Magistrate referring the matter under

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Section 156(3) of Cr.P.C. is hereby set aside.

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(ii) The matter is remitted back to the

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learned Magistrate to apply his judicious mind and then to pass an appropriate order as observed in the order and keeping in mind the principles laid down in

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the judgment of the Hon'ble Apex Court referred

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supra.

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In view of the disposal of the main petition, I.A., if any

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does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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