Allowed

Noorulla Hassan v. State of Karnataka

Karnataka HC12 Sept 2023CRL.P/9704/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the petition under Section 482 Cr.P.C. and quashed the criminal proceedings against the petitioner, holding that the prosecution was based on inconsistent versions and the respondent had already availed civil remedies, making it a civil dispute lacking criminal color.

What did the court decide?

Criminal proceedings in C.C.No.40/2017 insofar as the petitioner was concerned are quashed.

Noorulla Hassan Vs State of Karnataka — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:32890 CRL.P No. 9704 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL PETITION NO. 9704 OF 2018

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BETWEEN:

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NOORULLA HASSAN D/O HAJI BAPU AGED ABOUT 52 YEARS, R/A NICHE GHAR, KILPADY VILLAGE AND POST, MULKY, MANGALORE TALUK - 575 003.

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…PETITIONER

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(BY SRI. DHANANJAY KUMAR .,ADVOCATE)

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AND:

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STATE OF KARNATAKA

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BY MOODABIDRI POLICE STATION, MANGALORE CITY - 574 144 REPRESENTED BY STATE PUBLIC PROSECUTOR.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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MRS. DILSHAD BEGUM A S W/O MR. SAYYAD ALTHAF AGED ABOUT 56 YEARS, R/A LITTLE FLOWER, BLAMATA ROAD MANGALORE - 575 003.

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…RESPONDENTS

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(BY SRI. VENKAT SATYANARAYAN A., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.1;

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SRI. SAGAR N., ADVOCATE FOR B. LETHIF, ADVOCATE FOR RESPONDENT NO.2)

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THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.40/2017 FILED BY THE RESPONDENT NO.2 IN P.C.NO.65/2016 AS AGAINST THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 379, 425, 427, 434, 441, 503, 504,

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NC: 2023:KHC:32890 CRL.P No. 9704 of 2018

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506 READ WITH 120(B) OF IPC PENIDNG ON THE FILE OF CIVIL JUDGE AND J.M.F.C., MOODABIDRI.

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

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ORDER

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The petitioner being the accused No.7, in C.C.No.40/2017 pending trial before Civil Judge and JMFC, Moodabidri has challenged an order dated 17.01.2017 taking cognizance, and the prosecution initiated against him for the offences punishable under Sections 379, 425, 427, 434, 441, 503, 504, 506 read with Section 120B of Indian Penal Code (henceforth referred to as 'IPC' for short).

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The respondent No.2 claiming to be the owner of certain property, filed O.S.No.398/1992 for perpetual injunction, which was decreed. The accused were arrayed as defendants in the said suit. An appeal filed by the accused in R.A.No.391/2005 was dismissed and the consequent second appeal filed in RSA No.1626/2009 was dismissed on 25.03.2014. The respondent No.2 alleged that the accused formed an unlawful assembly on 20.03.2016 and illegally removed the survey stone, stone pillars and barbed wire fence and shifted the same and thereby committed an act of theft of

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property which was valued at more than a sum of Rs.1,00,000/-. The respondent No.2 thus lodged an information before the respondent No.1 on 25.03.2016, i.e., after nearly five days from the date of the alleged incident. The respondent No.1 issued a non-cognizable report, following which, the respondent No.2 filed PCR No.65/2016 before the Judicial Magistrate, First Class at Moodabidre.

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The Trial Court recorded the pre-summons evidence of the respondent No.2 and took cognizance of the offence punishable under Sections 379, 425, 427, 434, 441, 503, 504, 506 read with 120B of IPC and issued process to the accused.

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The petitioner herein was arrayed as accused No.7

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and he has filed this petition challenging the order taking cognizance offence as well as the prosecution launched against him.

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Learned counsel for the petitioner submits that prior to the private complaint filed by respondent No.2, she had approached respondent No.1 and lodged a complaint on 25.03.2016 which disclosed that the accused had "removed the stone pillar, barbed wire fence and shifted the same into her

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property and formed a road in her property by taking law into their hands" . He contends that in the private complaint, the respondent No.2 changed her version and alleged that "accused had formed an unlawful assembly on 20.03.2016 and illegally removed survey stone, stone pillars and barbed wire fence and shifted the same. The accused have removed barbed wire fence and committed theft of the same which is valued at more than a sum of Rs.1,00,000/-" . He further contends that respondent No.2 had filed an Execution Petition No.3/2016 to execute the decree in O.S.No.398/1992 where she alleged that the accused had tresspassed into the property on 30.03.2016. He therefore contends that the respondent No.2 had inconsistently alleged incidents that had not happened and had given a criminal color, to an otherwise civil dispute. He contends that the delay in lodging the complaint also was detrimental to the case of respondent No.2 as there was a clear improvement in the case, when the complaint lodged before respondent No.1 on 25.03.2016 and on 05.04.2016, when the private complaint was filed before the trial court. He therefore, submits that this is a fit case where this Court should exercise jurisdiction under

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Section 482 of Code of Criminal Procedure and quash the proceedings.

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Learned counsel for the respondent No.2 on the other hand, submitted that the trial Court took cognizance after considering the documents placed on record which not only included the decree passed in O.S.No.398/1992 but also the copy of the complaint lodged before respondent No.1 on 25.03.2016. He therefore contends that this court may not exercise jurisdiction to quash the proceedings as that would be emboldening the petitioner to step up his acts to violate the decree passed in O.S.No.398/1992.

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I have considered the submissions made by learned counsel for the petitioner as well as learned counsel for respondent No.2.

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It is not in dispute that the parties are litigating over a property in respect of which respondent No.2 has already obtained a decree in O.S.No.398/1992. It is also not in dispute that the respondent No.2 had already applied for execution of said decree in Execution Petition No.3/2016, where

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she had sought for punishing the accused for willfully violating the judgment and decree passed in O.S.No.398/1992.

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As rightly contended by the learned counsel for the petitioner, respondent No.2 had improved her case from time to time. On 25.03.2016, she alleged that the accused had removed the barbed wire fence, stone pillars and placed them in her own property. However, this version changed when the private complaint was filed, where she alleged that the accused had removed barbed wire fence on 20.03.2016 and the stone pillars and removed them and thus committed theft of property valued at more than Rs.1,00,000/-. However in the execution petition filed by respondent No.2, she alleged that the incident took place on 30.03.2016 and not on 20.03.2016. Therefore, there is a clear digression by respondent No.2 from time to time making her claim suspicious. Since respondent No.2 has already availed a civil remedy to enforce the decree passed in O.S.No.398/1992, it is not prudent to empower the respondent No.2 to prosecute the petitioner for an offence punishable under Section 379 of IPC, more particularly, when the record itself discloses that an offence under Section 379 of IPC is not made out.

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In that view of the matter, petition is allowed . The impugned prosecution of the petitioner in C.C.No.40/2017 pending trial before Civil Judge and JMFC at Moodabidri for the offences punishable under Sections 379, 425, 427, 434, 441, 503, 504, 506 read with 120B of IPC is quashed insofar as petitioner/accused No.7 is concerned.

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Sd/JUDGE

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List No.: 1 Sl No.: 24

Noorulla Hassan v. State of Karnataka

Case brief

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Noorulla Hassan v. State of Karnataka

Case brief

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