Full Judgment
(Prayer: This criminal petition is filed under section 482 Cr.P.C. praying to quash the proceedings initiated on the basis of the PCR No.1/2006 and registration of Cr.No.58/2016 against the petitioner for the offence punishable under section 3(20)(i), 3(1) of the SC/ST (POA) Act, 1989 and under section 415, 416, 417, 418, 420 of IPC and subsequent investigation by the police and allow the petition.)
1. The petitioner has filed this petition praying to quash the proceedings in PCR No.1/2016 on the file of II Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru and Cr.No.58/2016 of Electronic City Police Station registered against the petitioner for the offences punishable under sections 3(2)(i)(ii), 3(i)(ii) and 3(i)(viii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sections 415, 416, 417, 418 and 420 of IPC.
2. It is stated, G.P.A. was executed by Smt. Puttamma, Sri. Rudrappa and Smt. Padma in favour of the petitioner in respect of property bearing Sy.No.18/6 measuring 36 guntas and Sy.No.18/7 measuring 35 guntas situated at Doddanagamangala village, Begur Hobli, Bengaluru South Taluk. The complainant i.e. the 1st respondent filed suits in O.S.Nos.167/2013 and 169/2013 on the file of the Civil Judge (Jr.Dn.) Bengaluru Rural District and sought for injunction. The petitioner filed his detailed written statement. Thereafter, the suits were withdrawn by the 1st respondent by filing a memo stating that she does not press the suits. Thereafter, the 1st respondent filed one more suit in O.S.No.1568/2013 on the file of the learned II Addl. Senior Civil Judge, Bengaluru Rural District, Bengaluru, for declaration and injunction. The petitioner appeared and filed his detailed written statement. The application filed by the 1st respondent under order 39 Rules 1 and 2 of CPC was dismissed. The 1st respondent preferred an appeal in MFA No.5304/2014 before this Court and it was withdrawn on 16.9.2014. Thereafter, the 1st respondent filed a private complaint in PCR No.1/2016 on the file of the II Addl.District and Sessions Judge, Bengaluru Rural District, Bengaluru alleging that property bearing Sy.No.18/6 measuring 36 guntas and Sy.No.18/7 measuring 35 guntas situated at Doddanagamangala Village, Begur Hobli, Bengaluru South Taluk originally belonged to Bhadra. After his death, the property was inherited by his sons Muneera, Mota and Junja. After their death, subsequently, the complainant has succeeded to the said property. It is alleged, the power of attorney dated 3.7.1997 is created by impersonation and thumb impressions are forged. The executors of power of attorneys are not legal heirs of Bhadra and they are not related. The General Power of attorneys are forged by the petitioner and he has committed an offence by impersonation, forgery and fraud. Therefore, the complainant has prayed for necessary action.
3. The learned II Addl. District and Sessions Judge has referred the matter for investigation to the Asst. Commissioner of Police, Mico Layout Sub-Division under section 156(3) of Cr.P.C. The 2nd respondent has registered a case in Cr.No.58/2016 of Electronic City Police Station. The petitioner has challenged the proceedings in PCR No.1/16 on the file of II Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru and Cr.No.58/16 of Electronic City Police Station.
4. The first respondent has filed statement of objections contending that one One Bhadra, grand father of the respondent No.1 was the owner in possession and enjoyment of the land bearing Sy.No.18 situated at Dodda Nagamanagala Village, Begur Hobli, Bengaluru South Taluk. After the demise of the said Bhadra, his sons Munira @ Era, Mota and Junja succeeded to the property. The said land in Sy.No.18 was phoded as Sy.Nos.18/6, 18/7 and 18/8. Sy.No.18/6 measuring 36 guntas was cultivated by Junja, Sy.No.18/7 measuring 35 guntas was cultivated by Munira @ Era and Sy.No.18/8 measuring 33 guntas was cultivated by Mota. The land was mutated in their respective names. The index of land and the RTC was standing in their names since 1969.
5. It is stated, Munira @ Era died leaving behind his son Kempaiah who succeeded to the property in respect of Sy.No.18/7 measuring 35 guntas. It was mutated in his name by way of inheritance katha as IHC-11/1988-89.
6. It is stated, the father of the first respondent i.e., Kempaiah was cultivating the land. He died in the year 1994. After the death of the first respondent s father, she inherited the property along with her brothers and they are in possession and enjoyment of the property. It is stated, mutation has been effected in the name of the first respondent.
7. It is stated, the brothers of the first respondent namely Veerappa and Kumar died intestate. Thereafter, the first respondent and her children continued to be in possession and enjoyment of the land in question. The petitioner has no right, title and interest in the property. Therefore, the first respondent filed suit in O.S.No.167/2013 on the file of the Principal Second Civil Judge, Bengaluru Rural District, Bengaluru for permanent injunction against the petitioner. During the pendency of the suit, the petitioner created the document as if proceedings were initiated by him before the Assistant Commissioner, Bengaluru South Sub-Division, Bengaluru in RA (S) 65/2012-13 wherein the petitioner contended that the land in Sy.No.18/6 measuring 36 guntas which is standing in the name of Junja and Mota, he is the successor as per the Panchayath Palupatti and requested to include his name. it is stated, Junja and Mota belonged to Scheduled Caste and the petitioner belongs to Reddy community.
8. It is stated, based on the illegal and created order, katha was changed in the name of the petitioner. The advocate for the first respondent filed an application under RTI Act to find out whether any such order was passed. In response, endorsement dated 17.05.2013 has been issued stating that no final order has been passed in RA(S) 65/2012-13 and it pertains to Sy.No.29/3, Sy.No.1/6 of Karigirpura Village, Tavarekere Hobli and Sy.No.2/1 of Sulivara Village, Tavarekere Hobli. It is stated, RA(S) 66/2012-13 was filed by one B.R. Parashivaiah against the Tahsildar and others in respect of Sy.No.1/6 measuring 31 guntas, Tavarekere Hobli, Bengaluru South Taluk and does not pertain to the Sy.No.18/6 and 18/7 of Dodda Nagamangala Village, Begur Hobli, Bengaluru South Taluk. It is stated, the petitioner has misled the Revenue Authorities and managed to change the katha in his name. It was challenged in RA(S) 324/2012-13 and RA(S) 325/2012-13 before the Assistant Commissioner, Bengaluru South Taluk. The appeal was allowed and the mutation entries made in favour of the petitioner was set aside. The petitioner tried to interfere with the possession of the property. Therefore, the first respondent filed suit in O.S.No.167/2013 which came to be withdrawn as not pressed as katha was restored in the name of the first respondent.
9. It is stated, the first respondent and her family members have filed suit in O.S.No.1568/2013 before the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru against the petitioner for a declaration that the first respondent and her family members are the absolute owners in possession of the land bearing Sy.No.18/6 measuring 36 guntas and land in Sy.No.18/7 measuing 35 guntas situated at Dodda Nagamangala Village, Begur Hobli, Bengaluru South Taluk. It is stated, there is an interim order directing the petitioner not to alienate the property.
10. It is stated, the petitioner has created General Power of Attorney dated on 3.7.1997 in his favour as if it has been executed by Smt. Puttamma, Sri. Rudrappa and Smt. Padma who are not the family members of the first respondent, nor blood relatives, nor related in any way. One more General Power of Attorney said to have been executed by Mota, S/o.Bhadrappa has been created by the petitioner even though Mota died about 30 years ago prior to the alleged execution of power of attorney dated 16.5.1997. The first respondent filed a complaint in PCR No.1/2016 before the Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru. The matter is referred for investigation. Thereafter, a case in Crime No.58/2016 of Electronic City Police Station has been registered against the petitioner for the offences punishable under sections 415, 416, 417, 418 and 420 of the IPC and sections 3(1)(ii), 3(1)(viii), 3(2)(i) and 3(2)(ii) of the SC and ST (Prevention of Atrocities) Act. It is stated, the petitioner has created the orders of the Asst. Commissioner and power of attorney in the name of the dead person by impersonating himself even though the petitioner does not belong to SC and ST community. The petitioner is not related to any family member of the first respondent. Therefore, the first respondent has prayed for dismissal of the criminal petition.
11. The learned counsel for the petitioner contended that the impugned order referring the matter for investigation and registration of Cr.No.58/2006 is illegal and cannot be sustained in law. Further he submitted that the Trial Court without applying its mind to the allegations made in the complaint mechanically has referred the matter for investigation which is totally incorrect and contrary to the law laid down by the Hon ble Supreme Court. He also submitted that the complaint was not supported by affidavit. The impugned order does not indicate application of mind of the Trial Court to refer the matter for investigation. Therefore, the impugned order cannot be sustained in law. Further he submitted that the first respondent had filed suits in O.S.Nos.167/2013 and 169/2013 for injunction. The petitioner appeared and filed his written statement. Thereafter, the first respondent withdrew the suits by filing a memo. Subsequently, the first respondent and two others have filed O.S.No.1568/2013 for declaration and other reliefs. The petitioner has appeared in the said suit and filed his detailed written statement. The Trial Court has rejected the request of the petitioner for grant of temporary injunction. The first respondent had filed MFA.No.5304/2014, which was withdrawn subsequently by filing a memo. When the civil suits are pending, the first respondent has filed a private complaint. The Trial Court without even looking into the allegations made in the complaint and without applying its mind has referred the matter for investigation. This is in violation of the decision of the Hon ble Supreme Court in Mrs. PRIYANKA SRIVASTAVA and Another vs. STATE OF U.P. and Others reported in AIR 2015 SC page 1758. Further he submitted that the orders passed by the Assistant Commissioner in RA(S) 324/2012-2013 and RA(S)325/2012-2013 are challenged before the Deputy Commissioner and they are pending. When the title to the property itself is in serious dispute and civil proceedings are pending, the Trial Court was not justified in referring the matter for investigation. Further he submitted that the power of attorneys have been executed in the year 1997. After the lapse of nearly 19 years, the first respondent has filed private complaint. Therefore, the Trial Court was not justified in referring the matter for investigation.
12. Placing reliance on the decision of the Hon ble Supreme Court report in AIR 2015 SC page 3656, the learned counsel for the petitioner submitted that the civil suit for declaration is pending and no case is made out for initiation of criminal proceedings and therefore, the criminal proceedings may be quashed.
13. Further placing reliance on the decision of the Hon ble Supreme Court reported in AIR 2015 SC page 2501, the learned counsel for the petitioner submitted that the complaint is lodged after the lapse of nearly 19 years and civil proceedings are pending and therefore, it is nothing but an abuse of the process of the Court. Therefore, the criminal proceedings may be quashed.
14. Further placing reliance on the decision of the Hon ble Supreme Court reported in (2014)1 SCC (Cri) page 35, the learned counsel for the petitioner submitted that the Trial Court while exercising power under section 156(3) of Cr.P.C., is required to apply its mind and it should be reflected in its order. In the present case, the Trial Court has not even looked into the allegations made in the complaint. There is no application of mind at all. Therefore, the impugned order referring the matter for investigation may be quashed.
15. Further placing reliance on the decision of the Hon ble Supreme Court reported in AIR 2015 SC page 1758, the learned counsel for the petitioner submitted that while exercising power under section 156(3) of Cr.P.C., application of judicial mind is required. Further, the application to refer the matter for investigation must be supported by duly sworn affidavit. In the present case, the complaint is not supported by any affidavit. There is no request to refer the matter for investigation. Mechanically the Trial Court has referred the matter for investigation. Therefore, the proceedings may be quashed.
16. As against this, the learned counsel for the first respondent submitted that the impugned order does not call for interference. He also submitted that the petitioner has forged two power of attorneys dated 3.7.1997 and 16.5.1997. Based on the forged power of attorneys, the petitioner has played fraud on the first respondent and others. The first respondent being the legal heir is in possession and enjoyment of the properties in question. The petitioner had managed to get his name entered in the revenue records by creating orders. It was challenged before the Assistant Commissioner. The orders passed in RA(S) 65/2012-2013 and RA(S) 66/2012-2013 have been set aside. Further, there is direction to restore the entry in the name of the first respondent. The petitioner has nothing to do with the first respondent or her family members. The first respondent belongs to Scheduled Caste whereas the petitioner belongs to Reddy community. As the entries were restored by the order of the Assistant Commissioner, the first respondent withdrew the suits filed by her. Subsequently, a comprehensive suit for declaration has been filed and it is pending. The petitioner claims property based on the power of attorney. In the appeal before the Assistant Commissioner, the petitioner has claimed properties stating that they have come to him in a panchayath partition. He has also claimed that the properties in question are his ancestral properties. It is clear, the petitioner by making false claim and forged power of attorneys is trying to claim title to the property. Therefore, the first respondent has lodged complaint alleging forgery and cheating. The Trial Court applying its mind and considering the allegations made in the complaint has referred the matter for investigation under section 156(3) of Cr.P.C. Therefore, the impugned order does not call for interference. He also submitted that pendency of civil proceedings is not a bar to initiate criminal proceedings. It is an independent proceedings by itself. Therefore, the impugned order does not call for interference. Having regard to the nature of allegations, the matter requires thorough investigation. Therefore, the Trial Court was justified in referring the matter for investigation under section 156(3) of Cr.P.C. Therefore, the impugned order does not call for interference. Further he submitted that the first respondent had filed suits in O.S.Nos.167/2013 and 169/2013. As the mutation entries were restored in the name of the first respondent pursuant to order of the Assistant Commissioner, the first respondent withdrew the suits in O.S.Nos.167/2013 and 169/2013. Further, in O.S.No.1568/2013, though I.A.No.1 was rejected, there was a direction to the petitioner not to alienate the property to third parties pending disposal of the suit.
17. Placing reliance on the decision of this Court reported in LAWS (KAR) -2015-3-172 and decision of the Hon ble Supreme Court reported in (2005) 4 SCC page 370, the learned counsel for the first respondent submitted that forgery of the documents has taken place prior to filing of the suits. Pendency of the civil suits is not a bar to initiate criminal proceedings. Civil suits and criminal cases are totally different. In the present case, private complaint has been lodged alleging forgery of the power of attorneys and fraud played by the petitioner which requires thorough investigation. Therefore, the Trial Court was justified in referring the matter for investigation. It does not call for interference.
18. The learned Government Pleader supported the impugned order.
19. I have carefully considered the submissions made by the learned counsel for the parties.
20. It is relevant to note, the first respondent has filed a private complaint in PCR No.1/2016 on the file of the II Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru. It is alleged, the land bearing Sy.No.18/6 measuring 36 guntas and Sy.No.18/7 measuring 35 guntas situated at Doddanagamangala village, Begur Hobli, Bengaluru South Taluk originally belonged to one Bhadra. He died intestate leaving behind his three sons Muneera, Mota and Junja. Thereafter, the lands were transferred in the name of Mota and Junja. After the death of Mota and Junja, their elder brother Muneera succeeded to the properties. Muneera also died intestate leaving behind his son Veerappa who is no more, Smt. Munirajamma, the first respondent and one Kumar. After the death of Veerappa and Kumar, the complainant is the only surviving legal heir and she has succeeded to the properties. The petitioner has hatched a plan to knock off the property. The petitioner has forged and created general power of attorney dated 3.7.1997 said to have been executed by one Smt. Puttamma, Sri. Rudrappa and Smt. Padma. Based on the created general power of attorney, the petitioner has managed to get his name entered in respect of the lands in question. It is alleged, the first respondent came to know that the general power of attorneys are forged by impersonation, by creating the names of Puttamma, Rudrappa and Padma. They are not the legal representatives of Bhadra or Muneera, Mota and Junja. The executors of general power of attorneys are not the legal heirs of Bhadra and they are not related. They have no right, title or interest in respect of the properties in question. It is alleged, the petitioner has committed an offence of impersonation, forgery, fraud by creating general power of attorneys. It is stated, the first respondent is in possession and enjoyment of the properties and she obtained favourable order in R.A.(S) 324/2012-2013 and R.A.(S) 325/2012-2013. She has also filed a suit for declaration. Therefore, the first respondent has prayed to take cognizance of the offences punishable under sections 3(1)(ii), 3(1)(viii), 3(2)(i), 3(2)(ii) and sections 415, 416, 417, 418 and 420 of IPC. The Trial Court by its order dated 25.1.2016 has referred the matter for investigation under Section 156(3) of Cr.P.C. to Asst. Commissioner of Police, Mico Layout Sub-Division.
21. While referring the matter for investigation the Trial Court has ordered as follows:
Complainant present and presented the complaint. Heard the complainant. Refer the complaint under section 156(3) of Cr.P.C. to ACP, Mico Layout Sub-Division to investigate and to submit the report. Await report by 19.3.
22. The Hon ble Supreme Court in ANIL KUMAR and Others vs. M.K. AIYAPPA and Another reported in (2014) 1 SCC (Cri) page 35 has held that the Magistrate while exercising powers under section 156(3) of Cr.P.C., is required to apply his mind which should be reflected in his order though a detailed expression of his views is neither required nor warranted. It is clear, while exercising power under section 156(3) of Cr.P.C., the Court is required to apply its mind and it should be reflected in the order. The impugned order does not reflect the application of mind of the Trial Court. It only shows that the Trial Court has not even looked into the allegations made in the complaint. Mechanically, the matter has been referred for investigation.
23. In Mrs. PRIYANKA SRIVASTAVA and Another vs. STATE OF U.P. and Others reported in AIR 2015 SC page 1758, the Hon ble Supreme Court has observed as follows at paras 26 and 27.
26. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
It is clear, an application under section 156(3) of Cr.P.C. must be supported by an affidavit. In appropriate cases, the Court can verify the truth and veracity of the allegations. In the present case, no application has been filed under section 156(3) of Cr.P.C. nor any affidavit has been filed in support of the allegations. The order also indicates that there is no application of mind to the allegations made in the complaint.
24. It is clear, the impugned order is in clear violation of the direction of the Hon ble Supreme Court. Apart from this, there are civil litigations pending between the parties. While the petitioner claims that power of attorney dated 3.7.1997 was executed in his favour by Puttamma, Rudrappa and Padma in respect of Sy.No.18/7 measuring 35 guntas situated at Dodda Nagamangala village, Begur Hobli, Bengaluru South Taluk and power of attorney dated 16.5.1997 was executed by Motappa, son of Badrappa in respect of Sy.No.18/6 measuring 36 guntas situated at Dodda Nagamangala village, Begur Hobli, Bengaluru South Taluk, the first respondent claims to be the legal heir of oen Munira who was the owner of the lands. The first respondent had filed suits in O.S.Nos.167/2013 and 169/2013 for permanent injunction in respect of Sy.Nos.18/6 and 18/7 of Dodda Nagamangala village, Begur Hobli, Bengaluru South Taluk. The petitioner has appeared in the said suits and filed his written statement. Thereafter, the first respondent has withdraw the suits by filing a memo. Subsequently, the first respondent has filed one more suit in O.S.No.1568/2013 along with one Shantamma and Vijay. V. for declaration that they are the absolute owners of the suit schedule properties and that mutation entries are null and void and that the petitioner is not the owner of the suit schedule properties. The petitioner has appeared in the said suit and has filed written statement denying title of the first respondent and other plaintiffs contending that he is the owner of the property.
25. It is clear, a comprehensive suit for declaration and other reliefs is pending before the Civil Court. The power of attorneys are executed in the year 1997. Subsequently, the suit has been filed in the year 2013. Two suits filed by the first respondent have been withdrawn. A comprehensive suit for declaration is pending. Similarly, proceedings are pending before the revenue authorities also regarding mutation entries. When civil suits is pending, the title to the property is seriously disputed, the first respondent has filed private complaint and it is referred for investigation. Having regard to the nature of claim made by the parties, serious issues need to be considered in the pending suit. The title of the first respondent is seriously disputed. The Trial court without looking into the allegations, without applying its mind, has mechanically referred the matter for investigation. In the above circumstances, the impugned order and the criminal proceedings in PCR No.1/2016 cannot be sustained in law.
Accordingly, the criminal petition is allowed. The private compliant in PCR.No.1/2016 on the file of II Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, and Cr.No.58/2016 registered by the second respondent Electronic City Police Station pursuant to the direction of the Trial Court are hereby quashed.
I.A.No.1/2016 does not survive for consideration and accordingly, it is rejected.