Mr. Joel George Mascarenhas, Vs State of Karnataka

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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WRIT PETITION NO. 25047 OF 2023 (GM-RES) C/W CRIMINAL PETITION NO. 11743 OF 2023 ( 482(Cr.PC)/ 528(BNSS)) , WRIT PETITION NO. 25042 OF 2023 (GM-RES)

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IN WP No. 25047/2023:

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BETWEEN:

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MR. JOEL GEORGE MASCARENHAS, S/O MR GEORGE LANCY MASCARENHAS, AGED ABOUT 33 YEARS, PERMANENTLY R/A A-3, SHALINI SADAN BUILDING, IC COLONY, BORIVILI, WEST MUMBAI-400103.

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Digitally signed by LEELAVATHI S R

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Location: High Court of Karnataka

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MR. MAXIE DENIS MASCARENHAS, AGED ABOUT 60 YEARS, C/O MR JOHN DENIS MASCARENHAS, H.NO.1077/A, MADHLAWADA MORGIM, NORTH GOA, GOA-403 512. SENIOR CITIZEN BENEFIT NOT CLAIMED.

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…PETITIONERS

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(BY SRI. SURAJ S.,ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY THE BELLANDURU POLICE STATION, REPRESENTED BY THE S.P.P., HIGH COURT BUILDING,

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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AMBEDKAR VEEDHI, BANGALORE-560 001.

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MR. SUNIL KUMAR, AGED ABOUT 43 YEARS RESIDING AT NO.177, 2^ND MAIN, 13^TH CROSS KPC LAYOUT, KASAVANAHALLI BANGALORE-560035

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…RESPONDENTS

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(BY SRI. THEJESH P.,HCGP FOR R1; SRI. M.J. ALVA, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES OF 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE IMPUGNED POLICE NOTICE DATED 29.10.2023 ISSUED BY THE R1 U/S 41(A) OF THE CRPC TO THE 1ST PETITIONER BY WAY OF WHATSAPP ANNEXURE-A HEREINQUASH THE IMPUGNED POLICE NOTICE DTD 29.10.2023 ISSUED BY THE R1 U/S 41(A) OF THE CRPC TO THE 2^ND PETITIONER BY WAY OF WHATSAPP ANNEXURE-B HEREIN AND ETC.

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IN CRL.P NO. 11743/2023:

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BETWEEN:

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ALVIN MENDONCA, S/O STANY, MENDONLA AGED ABOUT 35 YEARS, R/AT GANDABETTU HOUSE, KALATHRAPADE, NALLUR, BORKATTE POST KARKALA TALUK, UDUPI DISTRICT-574107. AS PER AADHAR 2-193/2 FOURTH ESTATE RATHA BEEDHI NEAR KUDUP TEMPLE, KUDUPU MUDUSHEDDE, DAKSHINA KANNADA - 575 028.

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...PETITIONER

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(BY SRI. SUDHINDRA S. A.,ADVOCATE)

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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AND:

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STATE OF KARNATAKA BY BELLANDURU P.S REP BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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SUNIL KUMAR, AGED ABOUT 43 YEARS, R/AT NO. 177, 2ND MAIN, 13^TH CROSS, KPC LAYOUT, KASAVANAHALLI, BANGALORE.

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...RESPONDENTS

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(BY SRI. THEJESH P.,HCGP FOR R1; SRI. M.J. ALVA, ADVOCATE FOR R2)

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THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR LODGED ON 12.09.2023 AND COMPLIANT LODGED ON 07.09.2023 IN CR.NO.412/2023 PENDING ON THE FILE OF THE 41st ACMM FOR THE OFFENCE P/U/S.504,506 OF IPC.

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IN WP NO. 25042/2023:

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BETWEEN:

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MR. LOHIT, S/O. MR. MANJUNATH POOJARI, AGED ABOUT 32 YEARS, R/AT NO.1/33/1, SHREE SHIVASHANKARI NILAYA, THUDALLY ROAD SHIROOR, KUNDAPURA, UDUPI, KARNATAKA -576 228.

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...PETITIONER

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(BY SRI. VAIBAV M.,ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY THE BELLANDURU POLICE STATION, REPRESENTED BY THE SPP, HIGH COURT BUILDING, AMBEDKAR VEEDHI, BENGALURU -560 001.

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MR. SUNIL KUMAR AGED ABOUT 43 YEARS, RESIDING AT NO.177, 2^ND MAIN, 13^TH CROSS, KPC LAYOUT, KASAVANAHALLI, BANGALORE - 560 035.

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...RESPONDENTS

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(BY SRI. THEJESH P.,HCGP FOR R1; SRI. M.J. ALVA, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES OF 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE IMPUGNED POLICE NOTICE DATED 06/11/2023 ISSUED BY THE R1 UNDER SECTION 41(A) OF THE CR.P.C. TO THE 1^ST PETITIONER THROUGH WHATSAPP (ANNEXURE-A HEREIN) AND ETC.

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

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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ORAL ORDER

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The petitioners in W.P.25047/2023 seek the

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following reliefs:

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i) Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing the impugned Police Notice dated 29.10.2023 issued by the 1st Respondent under Section 41(A) of the Cr.P.C. to the 1st Petitioner by way of WhatsApp (Annexure A herein).

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ii) Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing the impugned Police Notice dated 29.10.2023 issued by the 1st Respondent under Section 41(A) of the Cr.P.C. to the 2nd Petitioner by way of WhatsApp (Annexure B herein).

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iii) Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing the impugned Order dated 11.09.2023 passed by the Hon'ble XLI Addl. Chief Metropolitan Magistrate, Bangalore in N.C.R. No. 322/2023 (Annexure D herein).

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iv) Issue a Writ of Certiorari or any other appropriate writ, order or direction quashing the impugned Complaint dated 07.09.2023

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lodged by the 1st Respondent with the 2nd Respondent (Annexure F herein).

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v) Issue a Writ or any other appropriate order or direction directing the 1st Respondent not to precipitate the matter in so far as the Petitioners are concerned with respect to the impugned FIR bearing Crime No. 0412/2023 dated 12.09.2023 registered by the 1st Respondent for the alleged offences punishable under Sections 504 and 506 of the Indian Penal Code, 1860 (Annexure C herein).

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vi) Direct the Respondents to pay the costs of this Petition.

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vii) Issue such other Writs, Directions or Orders, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, in the interest of justice and equity.

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The petitioner in Crl.P.11743/2023 seeks the

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following reliefs:

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(i) Quash the FIR lodged on 12.09.2023 & Complaint lodged on 07.09.2023 in Crime No.412/2023 pending on the file of the 41st Addl. Chief Metropolitan Magistrate for the

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offences punishable under section 504 & 506 of IPC.

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(ii) Grant such other order or orders, which this Hon'ble Court may be pleased to pass, in the circumstances of the case, to stall the abuse of process of Court, in the interest of justice.

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The petitioner in W.P.25042/2023 seeks the

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following reliefs:

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i) Quashing the impugned Police Notice dated 06.11.2023 issued by the 1st Respondent under Section 41(A) of the Cr.P.C. to the 1st Petitioner through WhatsApp (Annexure A herein).

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ii) Quashing the impugned Order dated 11.09.2023 passed by the Hon'ble XLI Addl. Chief Metropolitan Magistrate, Bangalore in N.C.R. No. 322/2023 (Annexure B herein).

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iii) Quashing the impugned Complaint dated 07.09.2023 lodged by the 2nd Respondent with the 1st Respondent (Annexure C herein).

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iv) Quashing the impugned FIR bearing Crime No. 0412/2023 dated 12.09.2023 registered by the 1st Respondent for the alleged

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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offences punishable under Sections 504 and 506 of the Indian Penal Code, 1860 (Annexure H herein).

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v) Direct the Respondents to pay the costs of this Petition.

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vi) Issue such other Writs, Directions or Orders, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, in the interest of justice and equity.

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Heard learned Senior Counsel for the petitioners and learned HCGP for respondent No.1 and learned counsel for respondent No.2 and perused the material on record.

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A perusal of the material on record will indicate that on 07.09.2023, respondent No.2-defacto complainant filed complaint before respondent No.1-Police making allegations against unknown persons. It was alleged that

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in relation to his friend – Anand Krishna Devadiga, respondent No.2 received a phone call from an unknown mobile No.7259152626 enquiring about the said friend,

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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which he realised was a fraud call and became suspicious, which was confirmed by his friend who told that the said mobile Number and person was unknown to him and that he had experienced such threatening calls in the past also. The respondent No.2-complainant also alleged that on 07.09.2023, his friend – Ravi received a call from unknown number – 6360966635 enquiring about the complainant to which there was no response. Under these circumstances, respondent No.2-complainant filed the impugned complaint requesting the Police Authorities to take appropriate action.

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In pursuance of the said complaint, the Police Authorities registered the complaint as non cognizable offence in NCR No.322/2023 dated 07.09.2023 and submitted a requisition dated 11.09.2023 to the learned Magistrate for permission to investigate under Section 155(2) of Cr.P.C. In pursuance of which, the learned Magistrate granted permission vide order dated 11.09.2023.

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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Thereafter, respondent No.1 registered FIR in Crime No.412/2023 against unknown persons for the offences punishable under Sections 504 and 506 of IPC which was followed by investigation and culminated in the charge sheet dated 26.11.2023 which is pending C.C.No.31068/2023 before the Trial Court. In the said proceedings, petitioners in W.P.No.25047/2023 are arrayed as accused Nos.1 and 2, while petitioner in Crl.P.No.11743/2023 is arrayed as accused No.3 and petitioner in W.P.No.25042/2023 is arrayed as accused No.4 respectively. It is also relevant to state that on 29.10.2023 and 06.11.2023, respondent No.1-Police Authorities issued Notices under Section 41(A) of Cr.P.C via Whatsapp calling upon the petitioners-accused Nos.1, 2 & 4 and accused No.3 respectively, to appear before them. Aggrieved by the impugned proceedings, orders, notices, etc., petitioners are before this Court by way of the present petitions.

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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A perusal of the material on record will indicate

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that respondent No.2 is a Power of Attorney Holder of the aforesaid Anand Krishna Devadiga against whom civil suits in respect of immovable properties in O.S.No.834/2018 and O.S.No.835/2018 are pending before the Civil Court. In fact, respondent No.2-complainant is appearing on behalf of the said Anand Krishna Devadiga in the said suits as his GPA Holder. Further, the father of Sri.Joel George Mascarenhas, petitioner No.1 – accused No.1 had lodged two FIRs in Crime No.35/2017 and 36/2017 on 14.01.2017 itself against respondent No.2 herein, who was arrayed as accused No.3 while the said Anand Krishna Devadiga was arrayed as accused No.2 for the offences punishable under Sections 420, 465, 466, 467 and 468 of IPC. It is therefore clear that apart from the fact that respondent No.2 filed the instant complaint as a counter blast to the civil and criminal proceedings already instituted by and on behalf of petitioners against him as well as Anand Krishna Devadiga prior to the impugned complaint, respondent No.2 is attempting to give a

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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criminal texture/flavour/colour to an essentially, predominantly and overwhelmingly civil dispute, which is impermissible in law warranting interference in the present petition.

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A perusal of the material on record will also indicate that the offences punishable under Sections 504 and 506 of IPC as alleged against the petitioners being non cognizable offences, the Police Authorities issued NCR No.322/2023, pursuant to which the requisition submitted

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by them before the learned Magistrate led to the impugned order dated 11.09.2023 granting permission to register the case and investigate the matter; in this context, a perusal of the impugned order passed by the learned Magistrate will clearly indicate that the same is an unreasoned, cryptic, laconic and non speaking order without any application of mind nor assigning cogent or valid reasons for granting permission, which is contrary to various judgments of the Hon’ble Apex Court and this Court including the case of Vageppa Gurulinga

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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Jangalagi Vs. State of Karnataka – ILR 2020 KAR

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620 and as such, the impugned order and consequential FIR and proceedings deserve to be quashed on this ground also.

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A perusal of the averments made in the complaint will clearly indicate that except merely stating that some unknown persons made enquiries with the complainant about his friend Anand Krishna Devadiga and that some unknown persons enquired with the complainant’s friend Ravi about the complainant, necessary ingredients constituting offences punishable under Section 504 of IPC are conspicuously absent in the complaint; so also on 12.09.2023, the respondent appears to have given a further complaint making allegations against the petitioners which are clearly an afterthought subsequent to the first complaint dated 07.09.2023 being registered as NCR in Crime No.322/2023 thereby leading to the sole conclusion that in the absence of corroboration in this regard by the remaining four witnesses cited in the

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charge sheet including the aforesaid Anand Krishna Devadiga, the petitioners cannot be incriminated for the offences alleged against them; in this context, as stated supra, in the first instance, the only allegation made against unknown persons was in relation to alleged phone calls from some unknown mobile numbers which are sought to be improved upon subsequently in the form of subsequent complaint and alleged statement of witnesses cited in the charge sheet thereby indicating that the proceedings are not only vexatious and initiated with malafide intentions and ulterior motives subsequent to the petitioners instituting both civil and criminal proceedings against the complainant as well as Anand Krishna Devadiga, but also that the impugned proceedings are highly improbable and on this ground also, the impugned proceedings deserve to be quashed.

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In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned proceedings in C.C.No.31068/2023 arising out

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NC: 2025:KHC:5098 WP No. 25047 of 2023 C/W CRL.P No. 11743 of 2023 WP No. 25042 of 2023

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of Crime No.412/2023 against the petitioners for offences punishable under Sections 504 and 506 of IPC deserve to be quashed.

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A perusal of the material on record will also indicate that on 29.10.2023 and 06.11.2023, respondent No.1 - Police issued notices under Section 41(A) of Cr.P.C to the petitioners via Whatsapp which is impermissible in

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law as held by the Apex Court in the case of SATENDER KUMAR ANTIL vs. CENTRAL BUREAU OF INVESTIGATION

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& ANR in MA 3024/2022 in MA 1849/2021 in SLP (CRL) No. 5191/2021 dated 21.01.2025 and consequently, the impugned notices also deserve to be quashed.

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In the result, I pass the following:

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ORDER

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i) The petitions are hereby allowed.

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ii) The impugned proceedings against petitionersaccused Nos.1 to 4 in C.C.No.31068/2023 on the file of XLI Additional Chief Metropolitan

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Magistrate, Bengaluru for the offences punishable under Sections 504 and 506 of IPC are hereby quashed.

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iv) The impugned notices under 41(A) Cr.P.C dated 29.10.2023 in W.P.No.25047/2023 and W.P.No.25042/2023 against petitioners-accused Nos.1, 2 & 4 and impugned notice under 41(A) Cr.P.C dated 06.11.2023 in Crl.P.No.11743/2023 against petitioner-accused No.3, are hereby quashed.

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Sd/- (S.R.KRISHNA KUMAR) JUDGE

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NS/MDS List No.: 1 Sl No.: 41

Mr. Joel George Mascarenhas, v. State of Karnataka

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Mr. Joel George Mascarenhas, v. State of Karnataka

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