IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10 TH DAY OF MARCH, 2016 BEFORE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR CRIMINAL PETITION No.6136/2015 C/W CRIMINAL PETITION No.6139/2015, CRIMINAL PETITION No.6138/2015, CRIMINAL PETITION No.6135/2015 Crl. P. No. 6136/2015 BETWEEN: 1. MR.UMAR ABDUL SATTAR VAHEDNA AGED ABOUT 76 YEARS SON OF ABDUL SATTAR APARTMENT NO.301, SKYLINE ELYSEE NO.24, VIVIANI ROAD FRASER TOWN 2. MOHAMMED BASHEER AGED ABOUT 52 YEARS SON OF ABDUL AZEEZ NO.39, 5 TH CROSS PATEL STREET OLD PENSION MOHALLA MYSORE ROAD BANGALORE MR.ATTA ASHRAF AGED ABOUT 36 YEARS SON OF LATE UMAR ABDUL SATTAR VAHEDNA APARTMENT NO.301, SKYLINE ELYSEE

2 2 NO.24, VIVIANI ROAD FRASER TOWN 4. ABDUL SAMAD VAHEDNA AGED ABOUT 72 YEARS SON OF ABDUL SATTAR VICTORIA LA ROYALE STEPHENS ROAD 5. MR.OWAIS UMER VAHENDA AGED ABOUT 43 YEARS SON OF LATE UMAR ABDUL SATTAR VAHEDNA APARTMENT NO.301, SKYLINE ELYSEE NO.24, VIVIANI ROAD FRASER TOWN PETITIONERS (BY SRI.ARJUN REGO, ADV. AND SRI. L.PE REGO, ADV) AND: 1. STATE OF KARNATAKA J.C.NAGAR POLICE STATION BANGALORE REPRESENTED BY ITS CIRCLE INSPECTOR OF POLICE. 2. MRS. RASHID ANWAR AGED ABOUT 58 YEARS WIFE OF MOHAMMED ANWAR ABDUL SATTAR VAHEDNA ALLEGEDLY REISIDNG AT NO.20, BENSON A CROSS BENSON TOWN BANGALORE

3 3 AND ALSO AT BANGALORE C/O. RAFIA MUNEER FAZAL NO.7/4, CLARKE ROAD RICHARDS TOWN RESPONDENTS (BY SRI. K.R.KESHAVAMURTHY FOR SPP II FOR R-1; SRI. VISHNUHEGDE, ADV. FOR SMT. RACHITA NANAIAH, ADVOCATES FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SEC.482 CR.P.C. PRAYING TO QUASH THE CHARGESHEET DATED UNDER SECTIONS 504, 506 R/W SECTION 149 OF THE IPC, 1860 FILED BY THE J.C. NAGAR POLICE STATION IN C.C.NO.4240/2009 ON THE FILE OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT, NRUPATHUNGA ROAD,BENGALURU. CRIMINAL PETITION NO.6139/2015 BETWEEN: 1. MOHAMMED BASHEER AGED ABOUT 52 YEARS SON OF ABDUL AZEEZ NO.40, 5 TH CROSS PATEL STREET OLD PENSION MOHALLA MYSORE ROAD BANGALORE ASHIYA KHATOONUNISSA AGED ABOUT 78 YEARS WIFE OF ABDUL AZEEZ NO.23, M 4 TH STREET SLAUGHTER HOUSE ROAD

4 4 SHIVAJINAGAR BANGALORE NAZNINUNISSA AGED ABOUT 41 YEARS WIFE OF MOHAMMED BASHEER NO.40, 5 TH CROSS,PATEL STREET OLD PENSION MOHALLA MYSORE ROAD BANGALORE AYESHA SIDDIQ AGED ABOUT 24 YEARS WIFE OF MOHAMMED ALEEM NO.40, ITTIGE ANJINAPPA LINE MYSORE ROAD BANGALORE PETITIONERS (BY SRI. ARJUN REGO, ADV. AND SRI.L.P.E REGO, ADV.) AND: 1. STATE OF KARNATAKA J.C.NAGAR POLICE STATION BANGALORE REPRESENTED BY ITS CIRCLE INSPECTOR OF POLICE. 2. MRS.RASHIDA ANWAR AGED ABOUT 56 YEARS WIFE OF MOHAMMED ANWAR ABDUL SATTAR VAHEDNA RESIDING AT HAMAD-BIN-SAUGHAT BULDING APARTMENT NO RD FLOOR, NAIF ROAD DEIRA, DUBAI, U.A.E, AND IN BANGALORE, C/O.RAFIA MUNEER FAZAL NO.7/4, CLARKE ROAD RICHARDS TOWN RESPONDENTS

5 5 (BY SRI. K.R.KESHAVAMURTHY FOR SPP II FOR R-1; SRI. VISHNUHEGDE, ADV. FOR SMT. RACHITA NANAIAH, ADVOCATES FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SEC.482 CR.P.C. PRAYING TO QUASH THE CHARGESHEET DATED UNDER SECTIONS 504, 506, R/W SECTION 34 OF THE I.P.C, FILED BY THE J.C.NAGAR POLICE STATION IN C.C.NO.20038/2008 ON THE FILE OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT, NRUPATHUNGA ROAD, BENGALURU. CRIMINAL PETITION NO.6138/2015 BETWEEN: 1. MR.UMAR ABDUL SATTAR VAHEDNA AGED ABOUT 76 YEARS SON OF ABDUL SATTAR APARTMENT NO.301, SKYLINE ELYSEE NO.24, VIVANI ROAD FRASER TOWN 2. MR.MANSOOR AHMED AGED ABOUT 35 YEARS SON OF ABDUL JABBAR COCONUT GARDEN 1 ST CROSS, GIDDAPPA BLOCK TANNERY ROAD BANGALORE MRS.GULSHAN BEGUM (IN REALITY MRS. DILSHAD BEGUM) (SINCE DECEASED)

6 6 4. MRS.HUSNA AGED 36 YEARS WIFE OF MANSOOR AHMED COCONUT GARDEN 1 ST CROSS, GIDDAPPA BLOCK TANNERY ROAD BANGALORE PETITIONERS (BY SRI. ARJUN REGO, ADV. AND SRI.L.P.E REGO, ADV.) AND: 1. STATE OF KARNATAKA J.C.NAGAR POLICE STATION BANGALORE REPRESENTED BY ITS CIRCLE INSPECTOR OF POLICE. 2. MRS.RASHIDA ANWAR AGED ABOUT 58 YEARS WIFE OF MOHAMMED ANWAR ABDUL SATTAR VAHEDNA RESIDING AT HAMAD-BIN-SAUGHAT BULDING APARTMENT NO RD FLOOR, NAIF ROAD DEIRA, DUBAI, U.A.E, AND IN BANGALORE C/O.RAFIA MUNEER FAZAL NO.7/4, CLARKE ROAD RICHARDS TOWN RESPONDENTS (BY SRI. K.R.KESHAVAMURTHY FOR SPP II FOR R-1; SRI. VISHNUHEGDE, ADV. FOR SMT. RACHITA NANAIAH, ADVOCATES FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SEC.482 CR.P.C. PRAYING TO QUASH THE CHARGESHEET DATED UNDER SECTIONS 427 R/W SECTION 34 OF THE IPC FILED BY THE J.C.NAGAR POLICE STATION IN

7 7 C.C.NO.3810/2009 ON THE FILE OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT NRUPATHUNGA ROAD, BENGALURU. CRIMINAL PETITION NO.6135/2015 BETWEEN: 1. MR.UMAR ABDUL SATTAR VAHEDNA, AGED ABOUT 76 YEARS, SON OF ABDUL SATTAR, APARTMENT NO.301, SKYLINE ELYSEE, NO.24, VIVIANI ROAD, FRASER TOWN, 2. SMT. REHMAT VAHEDNA, AGED ABOUT 67 YEARS, WIFE OF UMAR ABDUL SATTAR, APARTMENT NO.301, SKYLINE ELYSEE, NO.24, VIVIANI ROAD, FRASER TOWN, 3. SMT. FIRDOSE, AGED ABOUT 40 YEARS WIFE OF ASIM OOMER, NO.274, 1 ST MAIN DEFENCE COLONY INDIRANAGAR, BANGALORE MR. OWAIS UMER VAHEDNA, AGED ABOUT 42 YEARS SON OF LATE UMAR ABDUL SATTAR VAHEDNA

8 8 APARTMENT NO.301 SKYLINE ELYSEE NO.24, VIVIANI ROAD FRAZER TOWN, BANGALORE MR. ATTA ASHRAF AGED ABOUT 36 YEARS SON OF LATE UMAR ABDUL SATTAR VAHEDNA APARTMENT NO.301 SKYLINE ELYSEE, NO.24, VIVIANI ROAD FRASER TOWN, BANGALORE PETITIONERS AND: (BY SRI. ARJUN REGO, ADV. SRI. L P E REGO, ADV.) 1. STATE OF KARNATAKA, J. C. NAGAR POLICE STATION, BANGALORE REPRESENTED BY ITS CIRCLE INSPECTOR OF POLICE. 2. MR.ABDUL SATTAR VAHEDNA, AGED ABOUT 37 YEARS, SON OF MUNIR VAHEDNA ALLEGEDLY RESIDING AT NO.20, BENSON A CROSS, BENSON TOWN, BANGALORE , AND ALSO AT BANGALORE C/O RAFIA MUNEER FAZAL, NO.7/4, CLARKE ROAD, RICHARDS TOWN, BANGALORE RESPONDENTS (BY SRI.K.R.KESHAVAMURTHY SPP-II FOR R1, SRI. VISHNU HEGDE, ADV. FOR R2)

9 9 THIS CRIMINAL PETITION IS FILED UNDER SEC.482 CR.P.C. PRAYING TO QUASH THE CHARGESHEET DATED UNDER SECTIONS 504, 506 R/W SEC. 149 OF THE I.P.C, 1860 FILED BY THE J.C.NAGAR POLICE STATION IN C.C.NO.7481/2009 ON THE FILE OF VIII ADDL. CHIEF MIETORPOLITAN MAGISTRATE COURT, NRUPATHUNGA ROAD, BENGALURU. THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING: ORDER All these four petitions are filed u/s. 482 of Cr.P.C. by the same petitioners against the same respondents to quash the proceedings initiated against them in C.C.No.4240/2009, C.C.No.20038/2008, C.C.No.3810/2009 and C.C.No. 7481/2009, respectively pending on the file of VIII ACMM, Bangalore. 2. Husband of the complainant / respondent No.2 is the owner of premises No.20, Benson A Cross, Benson Town, Bangalore. It comprises of a basement, ground plus two floors. The husband of respondent No.2 had executed power of attorney in favour of petitioner No.1, to look after the property.

10 10 The petitioner No.1 along with other petitioners, his children occupied the property, in furtherance of the power of attorney executed by the husband of respondent No.2. The husband of respondent No.2 revoked the power of attorney given in favour of petitioner No.1 and called upon him to vacate and hand over the vacant possession of the portion of the property in his occupation. But he did not. When an attempt was made by respondent No.2 to evict the petitioners from the property, petitioner No.1 filed a suit for injunction in O.S.No /2009 on the file of XXVIII Addl. City Civil Court, Bangalore, against the respondent No.2 and her husband. Suit came to be decreed restraining the respondent No.2, her husband from evicting the petitioners from the premises, without due process of law. 3. The respondent No.2 was in occupation of the entire building, except the first floor, which was in occupation of the petitioners. Thereafter, tussle went on between petitioners and respondent No.2. Respondent No.2 lodged four complaints against the petitioners for the incident that occurred on at 12.30, which came to be registered in Cr. No. 64/2008 of J.C. Nagar Police Station, for the incident that

11 11 occurred on at 2.30 p.m., she filed complaint in Cr.No. 173/2008, for the incident that occurred on at a.m., she filed complaint in Cr.No.230/2008 and for the incident that occurred on at 4.00, Cr.No.31/2009 came to be registered in J.C. Nagar Police Station. The incident in all the crimes is that the petitioners trespassed into the premises of respondent No.2 and when they were questioned by respondent No.2 on different dates, they abused her in filthy language, threatened her and caused mischief to the property. The police after investigation filed four different chargesheet in all the aforesaid crimes against the petitioners for the offences punishable u/s. 448, 504, 506 r/w Sec. 34 IPC in C.C.No. 4240/2009, C.C.No.20038/2008, C.C.No. 3810/2009 and C.C.No. 7481/2009, respectively before VIII ACMM, Bangalore. 4. The petitioners appeared in all those cases and filed an application for discharge. The application was partly allowed and they have been discharged for the charge u/s. 448 of IPC. The respondent No.2 /complaint preferred criminal petition Nos.1329/2013, 1310/2013, 1311/2013 and 1312/2013, to quash the order of discharge passed by this Court. All the four

12 12 petitions were dismissed by this Court. Special Leave Petitions filed by the respondent No.2 against the order passed by this Court, and the aforesaid criminal petitions were also dismissed. 5. Now, to quash the proceedings in all the aforesaid criminal cases for the offences u/s. 504, 506, 427 r/w 34 of IPC, these four petitions came to be filed u/s. 482/Cr.P.C. 6. The submission of the counsel for the petitioners/accused, is that when the charge under Sec. 448 goes, other charges leveled against the petitioners u/s. 504, 506, 427, have no legs to stand independently. It is also submitted that no such incident as alleged by the respondent No.2 had ever taken place and just to harass the petitioners and to forcibly evict them from the property, the false complaints have been lodged repeatedly by the respondent No.2. Further, it is submitted that the dispute between the parties is purely of civil in nature. The suit filed by the petitioners is decreed and the respondent No.2 has been restrained from dispossessing the petitioners without due process of law, instead of taking recourse to law. For the eviction of the petitioners, the

13 13 respondent No.2 went on lodging the complaint after complaint with an evil design to evict the petitioners from the property. 7. During the course of argument, the learned counsel submitted that the structure that was existing in the schedule property is no more in existence now. It has been demolished. The vacant land is in the possession of the respondent No.2. All the complaints are stereotyped. The allegations are that when the respondent No.2 went and asked the petitioners as to why they trespassed into her property, she was abused by them in filthy language and was threatened. The dispute is purely civil in nature. Competent Civil Court passed a decree in favour of the petitioners as against the respondent No.2, restraining her from dispossessing the petitioners, without due process of law. In that case, the respondent No.2 approaching the petitioners and calling upon them as to why they trespassed into her property, does not arise. This appears to be to compel the petitioners to vacate the premises. Moreover, they have been discharged for the main offence, with which they were charged, i.e., u/s. 448 of IPC. The other charges, are trivial in nature. Thus, having regard to the background in which these crimes

14 14 came to be registered, the gravity of the charges and that the building in occupation of the petitioners and the respondent No.2 is no more in existence, the continuation of the proceedings against the petitioners would amount to abuse of process of the Court. For all these reasons, the petitions are allowed. The proceedings initiated against the petitioners in C.C.No. 4240/2009, C.C.No /2008, C.C.No. 3810/2009 and C.C.No. 7481/2009, pending on the file of VIII ACMM, Bangalore are hereby quashed. Sd/- JUDGE sd