Vasudev Yashwant Shanbhag Vs Parameshwari Devu Mukri

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, R/W. SECTION 482 CR.P.C, PRAYING TO A WRIT OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASH THE COMPLAINT DATED 14.02.2022 BEARING PCR NO.1/2022 ON THE FILE OF IIND ADDL. DIST. SESSION JUDGE UTTAR KANNADA KARWAR AND THE FIR DATED 22.02.2022 REGISTERED BY THE KUMTA POLICE IN CRIME NO.37/2022 FOR THE OFFENCES PUNISHABLE U/S.3(II) OF SC/ST (PREVENTION OF ATROCITIES) AMENDMENT ACT 2015 AND FOR OFFENCE PUNISHABLE U/S. 504,506 R/W. 34 IPC VIDE ANNEXURE-A & B AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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The petitioners have filed this petition under

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Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') praying to quash the further proceedings in Crime No.37/2022 of Kumta Police Station, for the offences punishable under Sections 504 and 506 read with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC') and Section 3(II) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short, ‘SC/ST (POA) Act’] pending on the file of the Additional District and Sessions Court, Uttara Kannada, Karwar District.

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Heard the arguments of Sri.Mahesh Wadeyar,

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learned counsel for the petitioners-accused, Sri.Abhishek L. Kalled, the learned counsel for respondent No.1 and Sri.Jairam Siddi, learned High Court Government Pleader for respondent No.2-State and perused the material on record.

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HC-KAR

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The brief facts of the prosecution case are as

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under:

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Respondent No.1-complainant has filed a private complaint under Section 200 of the Cr.P.C., before the learned Sessions Judge, Karwar, against the petitioners alleging that the petitioners are forcefully and illegally entered the place of the complainant’s property, stored mud, and also removed the stones from the compound wall of the complainant. They abused respondent No.1Complainant in filthy language by taking his caste and also threatened to eliminate him.

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Hence, he lodged a private complaint before the learned Sessions Judge. In turn, the learned Sessions Judge referred the matter to the jurisdictional Police under Section 156 (3) of the Cr.P.C. for investigation and report. Based on the reference complaint, the jurisdictional police registered the case in Crime No.37/2022 for the aforesaid offences and took up investigation. Taking exception to

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the same, the petitioners have filed this petition for quashement of the entire FIR and complaint.

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Learned counsel for the petitioners has

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contended that the allegations made against the petitioners is afterthought, so as to falsely implicate them, there is a delay in lodging the complaint, but delay has not been properly explained by the complainant. The dispute pertains to a survey in respect of the disputed property.

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Learned counsel places reliance upon the decision of the Hon'ble Apex Court in the case of HITESH VERMA v. STATE OF UTTARAKHAND AND ANOTHER¹

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(HITESH VERMA) and prayed for allowing the petition.

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Learned High Court Government Pleader for respondent No.2-State and learned counsel for respondent No.2-de facto complainant have contended that there is prima-facie material against the petitioners to attract the

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1 AIR 2020 SC 5584

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provisions of the SC/ST (POA) Act. The petitioners intentionally insulted the complainant to provoke his breach of peace and also made criminal intimidation to eliminate him by taking his caste. Hence, he prayed to dismiss the petition.

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On perusal of the private complaint and FIR, it is revealed that, the complainant made allegations that on 02.02.2022 at about 11.00 a.m., accused Nos.1 to 3, took quarreled with the de facto complainant, abused the complainant by taking up his caste, intentionally insulted him to provoke his breach of peace and also made criminal intimidation to eliminate him.

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Admittedly, the incident occurred on

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23.01.2022 and 02.02.2022. The complaint was lodged only on 14.02.2022. Hence, there is a delay of 12 days in lodging the complaint and the delay has not been properly explained by the complainant.

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HC-KAR

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Learned counsel for the petitioners submits that

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the incident alleged to have been taken place in the house of complainant and it is not at public place. Hence, he relied upon the decision of the Hon'ble Apex Court in the case of HITESH VERMA ( supra ) , wherein at paragraph Nos.15 and 18, it has held as under:

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"15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet.

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XXX XXX XXX

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18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the

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land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out."

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11. As rightly pointed out by the learned counsel for

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the petitioners, there is a civil litigation between the parties and O.S.No.81/2013 was filed by the complainant against the petitioner, and the same was dismissed. Being aggrieved by the judgment and decreed passed in O.S.No.81/2013, the complainant preferred appeal in RFA No.37/2020 before the learned Senior Civil Judge Kumta, and the same was also dismissed. Again, the complainant filed an original suit in O.S.No.10/2022 against the petitioners for the relief of declaration, possession and injunction. Therefore, the offence under SC/ST (POA) Act is not established merely on the fact that the complainant is a member of schedule caste, unless there must be an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to schedule caste.

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HC-KAR

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In the present case, the parties are litigating

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over possession as well as title of the land. The allegation of hurling of abuses is against a person, who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.

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The Co-ordinate Bench of this Court in Criminal Petition No.4384/2023 dated 12-7-2023 observed that there is a civil litigation between the parties and the allegations made in the complaint is purely civil in nature.

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Under such circumstances, the Court has to quash the proceedings in view of the ratio laid down in the case of HITESH VERMA ( supra ) .

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Whereas, in the instant case, the contents of complaint appears that the dispute between the parties is purely civil in nature, however, he has been given a criminal texture, so as to circumvent the petitioners from claiming the subject matter of civil litigation.

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HC-KAR

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In the instant case, the complainant has made allegations that the petitioners abused him in filthy language by taking up his caste name, intentionally insulted him to provoke his breach of peace and also made criminal intimidation to eliminate him and he also contended that it is public place. However, on perusal of the contents of the complaint, it appears that those allegations are general and omnibus in nature. Hence, the petitioners are made out the case to quash the FIR. Accordingly, I proceeds to pass the following:

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O R D E R

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i. The petition is allowed .

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ii. The entire proceedings initiated against the petitioners in Crime No.37/2022 arising out of PCR No.01/2022, for the aforesaid offences, pending on the file of the Additional District and Sessions Court, Uttara Kannada, Karwar District, is hereby quashed.

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