Allowed

Govindaraju v. State of Karnataka

Karnataka HC1 Oct 2021CRL.RP/847/2012

Case brief

AI extract

What is this about?

High Court allowed a criminal revision petition, holding the Sessions Judge erred in accepting a police 'B' report without applying mind to documents proving an interim order violated and the victim's SC status. Matter remitted.

What did the court decide?

Revision Petition allowed; matter remitted to Sessions Judge to consider the case afresh considering all material including interim order violation and caste status.

Govindaraju Vs State of Karnataka — Quashing and FIR | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF OCTOBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR CRIMINAL REVISION PETITION NO.847 OF 2012

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BETWEEN:

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GOVINDARAJU S/O.HANUMAIAH AGED ABOUT 55 YEARS R/A NO.19, SURVEY NO.14/13 14^TH MAIN, LOOKA NAGAR 1^ST STAGE, BTM LAYOUT BENGALURU – 560 068

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... PETITIONER

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(BY SRI M.S.RAJENDRA PRASAD, ADVOCATE)

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AND:

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STATE OF KARNATAKA MICRO LAYOUT POLICE BENGALURU – 560 069

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... RESPONDENT

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(BY SMT.RASHMI JADHAV, HCGP FOR R-1 AND R-2 DELETED VIDE COURT ORDER DATED 30.11.2012 )

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THIS CRL.R.P IS FILED U/S 397(1) R/W 401 OF CR.PC PRAYING TO SET ASIDE THE ORDER DATED 06.03.2012 PASSED IN CRIME NO.331/2008 ON THE FILE OF THE II ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU & ETC.

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

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ORDER

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Petitioner, who was the Complainant before the Court below, has laid a challenge to the Judgment of conviction and order of sentence dated 06.03.2012 passed in C.C. No.331 of 2008 by the II Addl. City Civil and Sessions Judge at Bangalore (CCH-17), whereby learned Sessions Judge accepted the ‘B’ report, rejected the objections filed to the ‘B’ report by the Complainant and closed the case.

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The case of prosecution in a nut shell are as

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follows:

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It is the case of the Complainant that he is the permanent resident of Bengaluru and residing from past 35 years with his wife and children. He is the owner of the property bearing No. 14/13 situated at Tavarekere Village measuring 20 guntas consisting of six houses and he was running a Sangha by name and style ‘Akhila Bharatha Bovigala Sangha’. Apart from that, he is also running security services in the name and style M/s Vigilant Security Services in Partnership.

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It is the case of the Complainant that he has filed a civil suit against the Chief Secretary, the State of Karnataka and Commissioner of Bangalore Development Authority in OS No.16507 of 2005 before City Civil Court, Mayo Hall, Bangalore, in which case on 27.05.2005 an interim order came to be passed directing the parties to maintain status-quo till next date of hearing and case came to be posted to 21.06.2007.

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This being the State of Affairs, according to the petitioner, on 28.04.2007 the accused persons came to the Complainant without notice along with 300 Police personnel and tress passed into his property and started throwing out all the valuables kept in the house including utensils. In the meantime, the petitioner was taken to MICO Layout Police Station and confined in the Police Station till the demolition was over. Despite petitioner informing the said authorities and the accused persons that there was stay operating, they did not heed to the advice and tore away the interim order copy produced by the petitioner. Thereafter, within three

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hours entire buildings over the property were razed to the ground.

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It is the case of the petitioner that he belongs to Bovi community, which comes under the Scheduled Caste category, which was in the knowledge of the accused and despite that accused abused the Complainant in indecent and vulgar language. Hence, petitioner gave a written complaint on 01.05.2007, which complaint was not taken into consideration and no action was initiated by the police against the accused persons.

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It is the case of the petitioner that since no action was taken against the accused persons he persisted for action and accordingly respondent – Police registered an FIR on 07.06.2008 for the offence punishable under Section 3 (1),(4),(5),(9),(10) &(15), Section 3 (2),(6) and Section 4 of the Scheduled Caste and Scheduled Tribe Act and Section 166 of IPC. In the said FIR at Column No.6 – Details of known suspects / unknown accused with full particulars, is shown as ‘BDA

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Officers.’ On the basis of the FIR investigation was carried out and the Police pursuant to the investigation filed a ‘B’ report.

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Thereafter, notices were issued to the Complainant. In turn, the Complainant appeared before the Court along with his counsel and filed objections to the said ‘B’ report. Thereafter, learned Sessions Judge permitted the parties to adduce evidence. Accordingly, petitioner examined himself as PW1 and got marked 18 documents as Ex.P1 to P18 and closed his side. On consideration of the same learned Sessions Judge by the impugned order dated 06.03.2012 accepted the ‘B’ report by rejecting the objections filed by the petitioner to the said ‘B’ report, which is in challenge before this Court in the present revision petition.

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Heard Sri M.S. Rajendra Prasad, learned Senior counsel appearing on behalf of petitioner and and Smt. Rashmi Jadhav, learned High Court Government Pleader for respondent – State.

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9. It is the contention of the learned Senior

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counsel that complaint with regard to issue of illegal demolition of property came to be lodged as early as on 01.05.2007 by way of written complaint, which has been acknowledged by the Office of the Deputy Commissioner of Police, Bangalore City on 02.05.2007. Since no action was taken pursuant to the said written complaint after persistent efforts on 07.06.2008 FIR was filed by the respondent – Police. Respondent – Police without conducting any proper investigation filed ‘B’ report, which was questioned by the petitioner by filing objections, leading his evidence and producing documents at Ex.P1 to P18 before the learned Sessions Judge. He contends that learned Sessions Judge has not applied his mind while considering the objections filed to the ‘B’ report and also the evidence adduced by him including producing relevant documents. Hence, he submits that the impugned order is illegal and improper and the same requires to be set aside.

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Learned Senior counsel for petitioner further contends that the learned Sessions Judge has

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mis-directed himself with regard to question of fact and question of law and merely by referring to the statement that the whole issue involve civil dispute has held that there is no inaction on the part of the respondent – Police. Learned Senior Counsel further contends that the petitioner and his family belong to the oppressed class and this aspect has also not been considered by the learned Sessions Judge. He further contends that learned Sessions Judge has not appreciated the relevant documents produced and marked before the Court and he has not given any opportunity for recording statement of witnesses and casually dealt with the matter without applying his mind.

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Learned Senior counsel for petitioner further contends that there is gross error committed by the learned Sessions Judge and the same requires to be set aside and an opportunity deserves to be provided to the petitioner to proceed with the matter before the Court by producing additional documents, if any

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Per contra, learned High Court Government Pleader appearing for respondent seeks to sustain the order passed by the learned Sessions Judge and contends that there is no illegality or perversity or nonapplication of mind by the learned Sessions Judge in passing the impugned order. She further contends that the FIR registered on 07.06.2008 but the incident alleged to have occurred on 28.04.2007, hence there is delay in filing the complaint for more than a year. Therefore, the complaint is frivolous, this fact has been taken into consideration by the learned Sessions Judge and has rightly accepted the ‘B’ report and rejected the objections filed by the petitioner.

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Having heard respective learned counsel for

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parties, the point that arise for consideration is:

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“(1) Whether there is any illegality or perversity committed by the learned Sessions Judge in passing the impugned order?

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(2) What order?”

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It is an admitted fact that a civil dispute was filed of OS No.16507 of 2005 against certain Officials of BDA and Police as mentioned in the complaint dated 01.05.2007. It is also not in dispute that in the said suit

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an interim order of status-quo came to be passed, which is in operation as on the date of demolition of the houses belonging to petitioner, ie., as on 28.04.2007. It is also not in dispute that the petitioner belongs to oppressed class of ‘Bovi Community’ falling under Scheduled Caste category. Petitioner has produced documents marked as Ex.P1 to P18 bringing it to the knowledge of the Court about his caste and the civil suit pending and also interim order having been passed by the Civil Court in the said suit.

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On careful perusal of the impugned order it is seen that the learned Sessions Judge though has recorded the production and marking of Ex.P1 to P8, which brings to the notice and knowledge regarding to the pendency of civil dispute and also the interim order of status-quo operating against the accused persons,

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the same has not been taken into consideration while passing the impugned order.

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It is relevant to mention here that the learned Sessions Judge had come to the conclusion that “prima facie, it has become obvious that the construction effected by this Complainant over the property was illegal one, and if they were demolished by the BDA Officers, then they were acting in accordance with law. They had not taken the law into their own hands. They were rather duty bound in that regard.” This reasoning of the learned Sessions Judge is not acceptable for simple reason that if there is any illegal construction over the property, the same cannot be demolished without due process of law. There is clear violation of principles of natural justice even if the State Authorities or Statutory Authorities working under State, decide to demolish a property they cannot do it unilaterally, as due notice and principles of natural justice has to be followed before taking such drastic step.

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In the present case on hand, admittedly,

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there was an interim order operating against the very same accused persons not to demolish the property, which has been conveniently ignored and in violation of the Court order the accused persons have demolished the property. It is brought to the notice of this Court that the very suit filed before the Civil Court has culminated in judgment, which went right up to the Hon’ble Apex Court and learned Senior counsel submits that BDA was directed to restore possession by constructing the house of the petitioner and the same has been compiled.

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Be that as it may, learned Sessions Judge

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has misdirected himself by not considering all these aspects and holding that in the complaint registered on 07.06.2008, which was delayed complaint and there is no name of the accused persons mentioned in the column, which relates to accused persons and only shown as BDA Officials. Based on this learned Sessions Judge has concluded that no prima facie case is made out against the accused persons to proceed in the

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matter and accordingly has accepted ‘B’ report and closed the case.

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While taking cognizance of a case the court is duty bound to consider all the materials oral and documentary produced by the complainant. Despite the ‘B’ report filed by the police, once materials are produced before the court which prima facie establish that it is a fit case to take cognizance and proceed further. The learned Sessions Judge, cannot ignore such relevant documents & mechanically close the case by accepting the ‘B’ report.

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At the stage of taking cognizance the Magistrate or the Sessions Judge is required to apply his mind to the facts and materials placed before him. In doing so if there is a report of Investigating Officer, the Court is not bound by the opinion of the Investigating Officer; the Court is competent to exercise its jurisdiction irrespective of the view expressed by the Police in his report on closure of the case. The Court may, prima facie, find out as to whether the offence has

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been made out or not. In a case where the Police file ‘B’ report for closure, the Court has to not only consider the report of the Investigating Officer but also the relevant material documents, oral and documentary, placed by the Complainant by way of protest memo or by way of his evidence and on being satisfied that there is sufficient ground to take cognizance, the Court shall issue process to summon the accused. This duty is cast upon the Court to carefully examine the material, more so, when the ‘B’ report of closure has been filed by the Investigating Officer.

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On over all scrutiny of the entire material, it is agreement that learned Sessions Judge has misconvinced and misdirected with the entire case and factual aspects have been ignored, the legal principles have been ignored and he has not applied his mind to decide the case, on hand. This Court is in agreement with the arguments of learned Senior counsel that matter requires re-consideration before the learned Sessions Judge. Accordingly, I proceed to pass the following:

ORDER

(1) The Revision Petition is allowed;

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(2) Matter is remitted back to the learned Sessions Judge to consider the case afresh in accordance with law by taking into consideration all the material aspects of the matter including the relevant documents produced by the complainant and pass suitable orders.;

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(3) Registry is directed to transmit the original records to the learned Sessions Judge forthwith.

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Sd/JUDGE

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Govindaraju v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Govindaraju v. State of Karnataka

Case brief

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