Quashed

S R Seetharam v. State of Karnataka

Karnataka HC7 Jun 2021WP/14318/2018

Case brief

AI extract

What is this about?

Karnataka High Court quashed a complaint filed under a Societies Act for alleged criminal misuse of facilities. The Court held that referring a civil dispute to police under Section 156(3) Cr.P.C. without meeting statutory prerequisites for Section 154(3) constituted an abuse of process.

What did the court decide?

The impugned complaint, the order of reference dated 26.12.2017, and all consequential proceedings under Section 156(3) Cr.P.C. are quashed.

S R Seetharam Vs State of Karnataka — Property and Title | Karnataka HC (2021)

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W.P.No.14318/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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WRIT PETITION No.14318/2018(GM-RES)

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BETWEEN :

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S.R.SEETHARAM S/O LATE G.S.RAMASWAMY AGED ABOUT 77 YEARS RESIDING AT C-101, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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RAMAKRISHNAN S/O S.NARAYANAN AGED ABOUT 54 YEARS RESIDING AT C-802, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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S.THIAGARAJAN S/O LATE M.S.SUBRAMANIAN AGED ABOUT 63 YEARS RESIDING AT C-302, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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DORAIRAGHAVAN MURLI S/O S.DORAIRAGHAVAN MURLI AGED ABOUT 52 YEARS RESIDING AT C-803, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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V.SEETHARAMU S/O LATE S.VENKATASUBBAIAH AGED ABOUT 79 YEARS

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W.P.No.14318/2018

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RESIDING AT C-1404, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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V.PRAKASIH S/O VENKATARAO P AGED ABOUT 46 YEARS RESIDING AT C-413, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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SMT.POORNIMA G W/O T GOVINDARAJAN AGED ABOUT 45 YEARS RESIDING AT C-312, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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SUMATHI GIRIDHAR W/O GIRIDHAR AGED ABOUT 40 YEARS RESIDING AT C-1305, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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PAVITHRA SHIROBHUSHANAM W/O MAHESH NARASIMHA WUDALI AGED ABOUT 38 YEARS RESIDING AT C-210, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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REKHA MURTHY W/O N.S.SUNDAR AGED ABOUT 53 YEARS RESIDING AT C-910, CASSIA BLOCK BRIGADE MILLENNIUM APARTMENT J P NAGAR VII PHASE BANGALORE – 560 078

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(BY SRI.VIVEK HOLLA, ADV. FOR SMT.MAYA HOLLA, ADV.)

…PETITIONERS

W.P.No.14318/2018

AND :

STATE OF KARNATAKA REPRESENTED BY SHO PUTTENAHALLI POLICE STATION BENGALURU – 560 078

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RAMAKOTESWARARAO DARA (MAJOR) S/O SRI.PURUSHOTTAM DARA RESIDING AT CG-12, GROUND FLOOR CASSIA BLOCK, BRIGADE MILLENNIUM, J P NAGAR, VII PHASE BANGALORE – 560 078 …RESPONDENTS

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(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1; SRI.RAGHAVENDRA R DESAI, ADV. FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION AND SECTION 482 OF CR.P.C. PRAYING TO QUASH THE COMPLAINT BEARING NO.PCR.15653/2017 BEFORE THE 44^TH ADDITIONAL CHIEF METROPOLITAN MAGISTGRATE AT BENGALURU (ANNEXURE-A) AND SET ASIDE THE ORDER DATED 26.12.2017 PASSED IN PCR NO.15653/2017 BY THE 44^TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU (ANNEXURE-B), AND THE FIR REGISTERED BY THE 1^ST RESPONDENT HEREIN IN CRIME NO.0020/2018 (ANNEXURE-C).

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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Heard.

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“Whether the proceedings in PCR

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No.15653/2017 on the file of XLIV Additional Chief Metropolitan Magistrate, Bengaluru and the proceedings arising thereon amount to abuse of the process of the Court?” is the question involved in this case.

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W.P.No.14318/2018

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Respondent No.2 and the petitioners are the residents of Apartment called ‘Brigade Millennium Cassia Block’, J.P.Nagar VII Phase, Bengaluru. The petitioners are office bearers of the Brigade Millennium Cassia Block Association and respondent No.2 is the owner of flat No.CG12 in Cassia Block.

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The bye-laws of the said Society are at Annexure-H. Admittedly, the Society is registered under the Karnataka Societies Registration Act, 1908 and not under the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (‘the 1972 Act’ for short).

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The association issued notice dated 09.11.2017 as per Annexure-L1 to respondent No.2 claiming that he is in arrears of Rs.21,750/- towards maintenance charges and he has tendered cheque only for Rs.3,000/-. Under the notice, association demanded the full payment and returned the cheque. Thereafter the association issued another notice as per Annexure-M dated

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W.P.No.14318/2018

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21.11.2017 to respondent No.2 demanding arrears of maintenance charges.

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On 30.11.2017, the association led by the petitioners passed resolution as per Annexure-N to discontinue the common facilities and amenities like water supply, electricity bill, collection of garbage, services of electrician, plumber, security persons, house keeping etc. to the defaulting flat owners/residences, if they fail to pay the dues.

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Under the resolution dated 01.02.2021 as per Annexure-P, at the intervention of the police, the facilities were restored. In the meantime, on 26.12.2017, respondent No.2 filed the complaint before XLIV Additional Chief Metropolitan Magistrate, Bengaluru in PCR No.15653/2017 seeking prosecution of the petitioners for the offences punishable under Section 13 of the 1972 Act and Sections 34, 120, 120-A, 425, 430, 452, 503, 504 and 506 of IPC.

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The learned Magistrate acting under Section 156(3) of Cr.P.C. referred the said complaint to

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W.P.No.14318/2018

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respondent No.1-police for investigation. On the basis of such reference, respondent No.1 registered the First Information Report in Crime No.20/2018 against the petitioners for the offences punishable under Sections 425, 430, 452, 503, 504, 506, 120, 120-A read with 34 of IPC.

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The petitioners seek quashing of the said proceedings on the following grounds:

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(i) The order of reference is without application of

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mind and contrary to Section 154(3) of Cr.P.C.;

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(ii) Admittedly the association was not registered under the 1972 Act. Therefore Section 13 of the said Act was not applicable;

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(iii) Out of the offences alleged, only cognizable

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offences were the one under Sections 430, 452 of IPC. Reading of the complaint does not make out such offence.

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Reiterating the grounds of the petition, Sri.Vivek Holla, learned Counsel for the petitioners relies upon the judgment of the Hon'ble Supreme Court in Priyanka Srivastava and another vs. State of Uttar Pradesh and others¹

1 (2015) 6 SCC 287

W.P.No.14318/2018

Per contra, Smt.Namitha Mahesh B.G, learned

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HCGP for the first respondent and Sri Raghavendra R.Desai, learned counsel for respondent No.2 submit that though the second respondent/complainant approached the jurisdictional Police, no action was taken.

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Learned counsel for respondent No.2 further submits that since the second respondent questioned financial irregularities of the Association, his family was being harassed by initiating several civil and criminal actions against him. He further submits that when the daughter of the second respondent was going through the 10^th Standard examinations, petitioners vengefully stopped water supply to his flat thereby committed the offences punishable under Sections 430 and 452 of IPC.

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The whole question in the case is whether the action of the learned Magistrate in referring the complaint invoking power under section 156(3) Cr.P.C. is sustainable. Indisputably what can be referred under Section 156(3) Cr.P.C. is a complaint alleging cognizable offence. How to go with the information in cognizable

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W.P.No.14318/2018

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cases is prescribed in Section 154(3) Cr.P.C. which states that if the Police refuse or fail to act upon such complaint, the complainant has to send the substance of such complaint in writing to the concerned Superintendent of Police.

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While considering interplay of Section 154 and 156(3) of Cr.P.C. in para 29 of the judgment in Priyanka Srivastava’s case the Hon'ble Supreme Court held that the exercise of the power under Section 156 Cr.P.C warrants application of judicial mind. In was further held that a litigant on his own whim cannot invoke the authority of the Magistrate and a principled and really grieved citizen with clean hands must have free access to invoke the said power.

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Further in paraghaphs 30 and 31 of the said judgment it was held that the complaint in such case shall be supported by an affidavit to the effect that there was refusal by the police to register the complaint, then the complainant approached the concerned Superintendent of Police and still no action was taken. It was further held

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W.P.No.14318/2018

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that such pleading itself was not sufficient and that should

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be accompanied by the supporting documents.

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In the entire complaint, there are no averments that the first respondent Police refused to register the complaint and therefore he approached the Superintendent of Police and he too did not take any action in the matter. Nothing was produced to show that complaint was sent to Superintendent of Police by registered post.

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The complainant himself stated that the

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Association was registered under the 1972 Act. If that is the case, how Section 13 was applicable was not considered by the Magistrate. The Magistrate while passing the order of reference under Section 156(3) Cr.P.C. acted contrary to the ratio of the judgment of the Hon'ble Supreme Court in Priyanka Srivastava’s case and the letter and spirit of Section 154 and 156(3) of Cr.P.C.

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Apart from that the material produced by the

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petitioners show that the dispute was with regard to the right and liability of the respondent No.2 as a flat

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W.P.No.14318/2018

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owner/resident which was civil in nature. That was given the colour of criminal case. Therefore the impugned complaint, the order of reference of the complaint to the Police and the consequential proceedings amount to abuse of process of the Court.

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The petition is allowed. The complaint in PCR No.15653/2017 on the file of XLIV Addl. Chief Metropolitan Magistrate and the order of reference dated 26.12.2017 as per Annexures-A and B respectively and all consequential proceedings are hereby quashed.

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Sd/JUDGE

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KSR/akc

S R Seetharam v. State of Karnataka

Case brief

What is this about?

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S R Seetharam v. State of Karnataka

Case brief

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