Dismissed

Smt.Bhageerathi Alias Poonam v. the State of Karnataka

Karnataka HC15 Sept 2022WP/100396/2017

Case brief

AI extract

What is this about?

High Court in writ petition under Article 226/227 and Section 482 Cr.P.C. refused to quash criminal proceedings arising from a case and counter-case scenario regarding land dispute. Holding that existence of prima facie material justified continuation despite difference in investigating officers, but directed Trial Court to adhere to specific procedural guidelines regarding simultaneous trials.

What did the court decide?

The writ petition is dismissed. Trial Court directed to follow guidelines issued in Hosakeri Ningappa's case regarding case and counter-case procedures.

Smt.Bhageerathi Alias Poonam Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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WRIT PETITION NO.100396 OF 2017 (GM-RES)

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BETWEEN

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1 . SMT.BHAGEERATHI ALIAS POONAM

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W/O SACHIN SUTAR AGE: 34 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O # GALLI NO.10, SAHARA NAGAR, RUI, KOLHAPUR, MAHARASHTRA, PIN: 416116

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SMT.VANDANA W/O RAMDAS SUTAR, AGE: 30 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, KURLI, TQ. CHIKODI, DIST. BELAGAVI, PIN: 591241

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SMT.SHARADA W/O MAHADEV SUTAR AGE 28 YEARS, OCC: HOUSEHOLD WORK AGRICULTURE, R/O # GALLI NO.10, SAHARA NAGAR, RUI, KOLHAPUR, MAHARASHTRA PIN: 416116

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...PETITIONERS

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(BY SRI. RAMESH N MISALE, ADV.,)

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AND

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THE STATE OF KARNATAKA REPRESENTED BY SUPERINTENDENT OF POLICE, BELAGAVI DISTRICT, BELAGAVI.

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THE P.S.I. KUDACHI POLICE STATION, TAL:RAIBAG, DIST: BELAGAVI.

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SMT. KALIMOON JINNEDSAB PINNITHOD AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. KUDACHI VILLAGE, GUNDWAD ROAD, TQ: RAIBAG, DIST: BELAGAVI.

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...RESPONDENTS

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(BY SRI. RAMESH CHIGARI, HCGP FOR R1 AND R2; R3-PETITION DISMISSED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR & CHARGE SHEET FILED AGAINST THE PETITIONERS i.e., ACCUSED NO. 6, 7 & 8, RESPECTIVELY, IN CR.NO.12/ 2015 OF KUDACHI P.S AND BEING TRIED AS C.C. NO.650/2015, PENDING ON THE FILE OF LEARNED ADDITIONAL CIVIL JUDGE AND JMFC, RAIBAG.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 23.08.2022, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this writ petition, the petitioners who are arraigned as accused Nos.6 to 8 in Crime No.12/2015 of Kudachi P.S., and in which after investigation a charge sheet came to be filed in C.C.No.650/2015 for the offences punishable under sections 143, 147, 341, 323, 504, 506

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read with 149 IPC, are seeking quashing of the said proceedings.

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Brief facts leading to the filing of the petition are that, during 1933-34, lands in R.S.No.359 of Kudachi more particularly Hissa No. 359/1 to 359/16 including R.S.No.359/15/1 and 359/15/2 are granted to Harijan Community of Kudachi and the name “Samasta Mahar” is entered in the records of rights. During 1976-77, the father of petitioners viz., Vinod Sutar, who is a carpenter by profession has constructed a house and workshop in Sy.No.359/16 measuring 200 x 100 ft.

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2.1. During 1994, one Lajamma Mevegar has created

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a bogus sale deed in respect of Sy.No.359/15/01 measuring 1 acres 10 guntas, and 1 acre 11 guntas during June-2008, and allegedly sold the same in favour of Mohammed Hussain Rohile and Altaf Hussain Rohile, respectively. When the alleged purchasers tried to interfere, Vinod Sutar filed O.S.No.427/2008.

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2.2. Such being the case, on 15.01.2015 at about

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7.45 p.m., Mohammed Hussain Rohile and Altaf Hussain

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Rohile along with 10 other gundas entered into the property, damaged the machineries and also assaulted Vinod Sutar and his wife Kamala. In this regard she has filed a complaint in Crime No.11/2015 of Kudachi P.S.

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2.3. As a counter-blast and after thought on 16.01.2015, sister of accused No.1 by name Kalimoon filed a complaint against Vinod Sutar, his wife, sons and others including the petitioners, who are all married and residing in their matrimonial houses at Maharashtra and interior Chikodi Taluk. In this regard on 03.09.2015, charge sheet came to be filed against Vinod Sutar and others.

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Aggrieved by the same, petitioners have come up with this writ petition seeking quashing of the proceedings, which is illegal, arbitrary and violative of the fundamental rights guaranteed by the Constitution of India in general and Article 21 in particular. The complaint allegations are false, imaginary and illogical. Without investigating whether petitioners were infact present at the scene of occurrence, mechanically a charge sheet came to be filed. The dispute between the parties is civil in

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nature. Prima-facie the criminal proceedings are not tenable against the petitioners.

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In support of his arguments, learned counsel for

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petitioners has relied upon the following decisions:

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i) Mahindra and Mahindra Financial Services Limited and another Vs. Rajiv Dubey¹ (Mahindra’s Case)

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ii) Mohammed Ibrahim and others Vs. State of Bihar and another² (Mohammed’s case)

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On the other hand, learned HCGP submits that after conducting detailed investigation, charge sheet came to be filed against petitioners and others. Prima-facie there is material to connect the petitioners to the crime in question. She would further submit that it is for the prosecution to prove the allegations against the petitioners and others at the trial and at this stage, in a writ petition under Article 226 and 227 of the Constitution of India read

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1 (2009) 1 SCC 706

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2 (2009) 8 SCC 751

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with section 482 of Cr.P.C., disputed question of facts cannot be decided and prays to dismiss the petition.

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In support of her arguments, learned HCGP has relied upon the following decision:

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i) State of Karnataka by Circle Inspector of Police Vs. Hosakeri Ningappa and another³

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(Hosakeri Ningappa’s case) .

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Heard arguments and perused the records.

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Undisputedly, there is a civil litigation pending between the parties in O.S.No.427/2008 with regard to land in Sy.No.359/15/01. In respect of the incident dated 15.01.2015, based on the complaint filed by Smt. Kamala Vinod Sutar, Crime No.11/2015 came to be registered against Mohammed Hussain Rohile and others and charge sheet is filed in C.C.No.649/2015. In respect of the same incident, Crime No.12/2015 is registered against Vinod Chintamani Sutar and others including the petitioners, after investigation, it also ended up in filing charge sheet

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3 ILR 2012 KAR 509

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in C.C.650/2015 and both cases are pending before Additional Civil Judge and JMFC, Raibag.

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The main contention of petitioners is that they are married daughters and staying in their matrimonial houses and on the date of incident they were not at all present at the place of occurrence. Admittedly, petitioners are the daughters of Vinod Sutar. Whether at the time of incident they were present at the place of occurrence or not is a matter to be decided at trial. Similarly, out of these two cases, which is the genuine complaint and which is the one filed as a counterblast is also a matter to be thrashed out at trial. In the light of charge sheet filed against the petitioners, at this stage, there is prima-facie material to proceed against them.

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So far as the decisions relied upon by the petitioners i.e., Mahindra’s case and Mohammed Ibrahim’s case referred to supra, on facts the Hon’ble Supreme Court held that the criminal complaints were result of civil dispute between the parties and continuation of the same amounts to abuse of process of the Court.

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However, in the present case, there is sufficient material to proceed against the petitioners and others and as such, these decisions are not applicable to the case on hand.

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The learned counsel for the petitioners also submitted that since the complaints in question are in respect of the same incident i.e., they are case and counter case and therefore, they ought to have investigated by one and the same investigating officer. However, in the present case, they are investigated by two different investigating officers and as such the proceedings are vitiated.

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In this regard, it is relevant to refer to Hosakeri Ningappa’s case relied upon by the learned HCGP, wherein based on the decision of the Hon’ble Supreme Court in Nathilal Vs. State of Uttar Pradesh⁴ , the Full Bench of this Hon’ble Court while discussing the procedure to be adopted in the investigation and trial of case and counter case, issued the following guidelines:

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4 1990 SCC (Cri) 638

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i) Investigation should be conducted by the same investigating officer.

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ii) Prosecution should be conducted by two different public prosecutors.

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iii) The trial should be conducted by the same Court.

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iv) After recording evidence and after hearing arguments, the judgment should be reserved in one case and thereafter evidence should be recorded and arguments should be heard in the other case.

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v) Needless to state that arguments in both matters should be heard by the same learned judge.

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vi) The judgment should be pronounced by the same judge simultaneously i.e. one after the other.

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vii) The Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case (or counter case) cannot be looked into.

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viii) The judge shall not be influenced by the evidence or arguments in the cross case.

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ix) However, if the evidence recorded in one case is brought on record in another case in accordance with the procedure known to law, then, such evidence which is legally brought on record can be looked into. Except in such situation, the evidence recorded in one case cannot be looked into in another case.

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In Hosakeri Ningappa’s case, the facts are that the case and counter case were not tried simultaneously and the judgments were not pronounced one after the other. However, the Hon’ble Division Bench held that by not following the guidelines the proceedings are not vitiated and on facts, it is for the Court to decide whether any prejudice is caused to the accused in not following the said procedure.

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In the present case, the investigation is not conducted by the same investigating officer but by two different investigating officers. However, the case and counter case are pending before the same court. The rest of the guidelines with regard to prosecution to be conducted by two different prosecutors and case to be decided by the same Court one after the other as detailed

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above could be followed. The question that is required to be examined whether the investigation conducted by two different investigating officers has vitiated the proceedings causing prejudice to the parties and this is to be examined at the stage of judgment. Therefore, the fact that investigation is conducted by two different investigating officers is also not a ground to interfere under Article 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. Therefore, the petition is liable to be dismissed

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and accordingly, I proceed to pass the following:

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ORDER

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The writ petition is dismissed.

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However, the Trial Court is directed to follow the guidelines issued in Hosakeri Ningappa’s Case.

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In view of disposal of the petition, pending interlocutory applications if any, do not survive for consideration and are disposed of accordingly.

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YAN