(Prayer: This Criminal Petition is filed u/s 482 of Cr.P.C. seeking to quash the complaint dated 23.6.2015, fir and entire proceedings registered in Cr.No.45/2015 of Dandeli Town P.S. against the accused No.1 and 2 for the offences p/u/sec.143, 147, 448, 427, 504, 506 r/w sec.149 of IPC, pending on the file of the Prl. civil Judge (Jr.Dn.) and JMFC, Dandeli, Dist. U.K.)
1. Though this petition is listed for admission, with the consent of learned Counsel for the parties, it is taken up for final disposal.
2. Heard Shri Mrutunjaya S.Hallikeri, learned Counsel for the petitioners, Shri Praveen Kuppar, learned HCGP for respondent No.1-State and Shri Shashank S.Hegde, learned Counsel for respondent No.2.
3. The first petitioner is a Chief Engineer and second petitioner is an Executive Engineer working with a State owned power generating company, namely Karnataka Power Corporation Ltd., ( KPCL for short).
4. KPCL had allotted a residential quarter bearing No.LIGH-25, situated at Dandeli to one Mrs. Yashodha P.Shanbhag, w/o second respondent herein, working with Bharat Sanchar Nigam ( BSNL for short), on monthly rent in the year 1988. The lease agreement was extended from time to time till 30.4.1992. Subsequently, she was called upon to vacate the premises. She refused to vacate and continued to stay as an unauthorised occupant.
5. The second petitioner was the authorised officer under the Karnataka Public Premises (Eviction of unauthorised occupants) Act, 1974 ( the Act for short). He issued a notice dated 8.11.2011, to the said Mrs. Shanbhag, to show cause as to why an order of eviction should not be made against her, which was replied on 15.11.2011. Not being satisfied with the reply, the second petitioner conducted an enquiry in accordance with law and passed an order of eviction dated 21.2.2012 to vacate the premises within 45 days therefrom. 6. The eviction order passed under the Act was challenged by Mrs. Shanbhag in a Misc. Appeal No.3/2012 before the learned District Judge, Uttara Kannada, Karwar, who passed an interim order of status quo on 5.4.2012. The interim order was continued from time to time.
7. By a communication dated 21.6.2015, the advocate appearing on behalf of KPTCL informed the authorised officer of KPTCL that on 18.6.2015, the order of status quo was not extended and that the KPTCL can act immediately to evict Smt. Shanbhag and take possession of the premises. Precisely, he has stated thus in the communication:
From:
ABC
Advocate, Karwar
To,
The Authorised Officer
K.P.C.L., Dandeli
Sir,
In M.A.No.3/12, on the file of Hon ble District Judge, Karwar, now, listed before Addl. District Judge, Sirsi, Status Quo order was passed on 5.4.12 and extended till next dates.
However, on 18.6.2015, we have filed written arguments and the Hon ble Court has been pleased not to extend the Status Quo. As such, there is no Status Quo order, and now you u/s 5(2) of the Act can immediately evict the persons i.e. Yashoda Shanbhag and fly and take the possession of the premises and issue possession certificate to the Department.
As it is 25 years old matter and for the last 18 years or so, Rents are also not paid, you can do the same as early as possible, for eviction and possession, you are also empowered u/s.5(2) of Act to use force, if necessary.
Kindly, inform me after doing the needful, certified copy of entire order sheet is enclosed.
KARWAR Sd/-
21.6.2015
ABC
(Name withheld by me)
8. In pursuance of the above communication, it appears the authorised officer sought the help of the municipal authorities and the jurisdictional police to take possession of the premises. On 23.6.2015, petitioners and other officials of KPCL along with the police went to the premises at about 10.00 A.M. and called upon Mrs. Shanbhag to vacate and hand over the vacant possession. It appears the Shanbhag couple sought some time to vacate the premises. However, as there was no sign of any efforts by the couple to vacate the premises till evening, the petitioners and the other officials entered the premises peacefully and in the presence of the jurisdictional police, brought the materials out of the house. When the petitioners were about to lock the premises, Mrs. Shanbhag produced a photocopy of the interim order dated 23.6.2015 in Misc. Appeal No.3/2012, whereby the status quo order stood extended. The petitioners immediately stopped the eviction process and returned.
9. On the very same day at about 11.15 P.M.(23.15 hours) second respondent got a complaint in crime No.45/2015, registered with the Dandeli Town Police Station, for offences punishable under Sections 143, 147, 148, 427, 504 and 506 of IPC against the petitioners and few others. Petitioners being aggrieved by the registration of the complaint, have filed this petition for quashing the FIR and the entire proceeding in Crime No.45/2015.
10. Shri Mrutyunjaya Hallikeri, learned Counsel, reiterating the contents of the petition, submitted that the registration of the criminal case against the petitioners is wholly unsustainable in law inasmuch as they had acted strictly in accordance with law, based on the legal advice. He contended that with effect from 18.6.2015, till about 4.00 P.M. on 23.6.2015, Smt. Shanbhag did not have the protection of the interim order. No sooner than the Shanbhag couple produced the copy of order passed in Misc. Appeal No.3/2012, extending the order of status quo, the petitioners and other officials stopped the eviction process at once and returned. In the circumstances, the complaint which is lodged nearly seven hours after the petitioners and the other officials had left is clearly an afterthought to harass and arm-twist the petitioners. He further submitted that the second petitioner is the authorised officer under the Act and the first petitioner is the Head of the Engineering Department and custodian of the project site. In the circumstances, they are duty bound to protect the interest of the KPCL and therefore, all acts on the part of the petitioners are bonafide. The premises in question was allotted to Mrs. Shanbhag in the year 1988. She has not paid rents and staying in the premises unauthorisedly. Accordingly, he prays for quashing the proceedings as the same are adversely effecting the interest of the petitioners who are senior officers of the KPCL.
11. Per contra, learned HCGP supporting the registration of the criminal case, prayed for dismissal of the petition.
12. Shri Shashank Hegde, learned counsel appearing for the second respondent submitted that the entire action on the part of the petitioners was highhanded. Admittedly, they are parties in the proceedings in Misc. Appeal No.3/2012. They were fully aware of the pendency of the said proceedings and the status quo order dated 5.4.2012, which stood extended from time to time. However, the petitioners sought to take advantage of non-extension of interim order on 18.6.2015 which happened entirely due to inadvertence on the part o the advocate appearing for Smt. Shanbhag. He further submitted that as a matter of fact, on 21.1.2015, the interim order was extended till the disposal of the appeal. He submitted that in addition to forcibly and illegally trespassing into the premises in occupation of Smt. Shanbhag, the highhanded act on the part of the petitioners has resulted in disappearance of property worth Rs.1,00,000/-. Replying to the contention urged by the petitioners that Smt. Shanbhag is staying unauthorisedly and not paying rents, he submitted that the KPCL had instituted proceedings in O.S.No.40/1998 seeking for recovery of possession which was decreed by the trial Court. However, the said decree was reversed by the first appellate court. A second appeal preferred by KPCL in RSA No.191/2007 also stood dismissed by judgment and decree dated 20.4.2011. Further, at any rate, the parties were before the Court of the learned District Judge, in Misc. Appeal No.3/2012 and there was no impelling hurry to trespass into the premises on 23.6.2015. He submitted that the petitioners have not made out any tenable ground for interference by this Court to exercise the inherent jurisdiction under Section 482 Cr.P.C. and prayer for dismissal of this petition.
13. In the light of the rival contentions of the parties and perusal of records, following incontrovertible facts emerge:
i) Smt. Shanbhag had called in question the eviction order dated 21.2.2012, passed under Section 10 of the Act before the learned District Judge, Karwar, in M.A.No.3/2012;
ii) an interim order of status quo was passed on 4.5.2012, by the District Judge, till the next date of hearing i.e. 16.4.2012. The interim order was extended from time to time and vide order dated 21.1.2015, it was extended till disposal of the appeal;
iii) the order sheet dated 26.2.2015 shows that a memo was filed by the advocate for the appellant for extension of interim order and the same was extended till 25.4.2015. On 25.4.2015, appellants advocate has filed another memo for extension of interim order. The case was adjourned to 18.6.2015 and interim order was only extended till then.
iv) On 18.6.2015, there is no mention with regard to either filing of a memo or extension of the interim order. The order passed on the said date shows that the case was only adjourned to 2.9.2015.
14. The above facts clearly reveals that though the interim order was extended till disposal of the appeal on 21.1.2015, on the next following two dates of hearing, the advocate for the appellant has filed memos for extension of the interim order and the Court extended the same till the next following date of hearing. To a specific query at the time of hearing as to why memos were filed despite the protection of interim order was available till the disposal of the appeal, it was fairly conceded by both learned counsel that the lawyers appearing on both side in the Court below were under a bonafide impression that the interim order was being extended from time to time and were unaware that the interim order was extended till the disposal of the appeal on 21.1.2015.
15. Be that as it may, the proceedings of 21.1.2015, 26.2.2015 and 25.4.2015 clearly indicate that the learned District Judge, though having passed an interim order to remain in force till the disposal of the appeal, entertained the memos ordered limited extensions only till the next following date of hearing. Further, there is no mention with regard to interim order in the proceedings of 18.6.2015.
16. What perhaps triggered the petitioners to take a swift action is the communication dated 21.6.2015, by their advocate. Though such communication is not expected from a prudent professional of a learned member of the Bar, the tenor of the communication indicates that it could be a result of undue enthusiasm. The force behind such enthusiasm possibly is the pendency of lis for 25 years and non-payment of rents for over 18 years preceding the date of communication. If only the advocate was more sagacious and dispassionate this incident could have been avoided.
17. Admittedly, both the petitioners are engineers. The lis was pending for 25 years and the said Mrs. Shanbhag had not paid rents for 18 years. When the entire sequence of events are examined in proper perspective and in the light of the incontrovertible facts recorded supra, what emerges is that on 23.6.2015, when the petitioners and other officials including the police officers went to the premises in question, Smt. Shanbhag did not have the protection of the interim order. There is an unambiguous admission in the complaint lodged by the second respondent that the petitioners and their staff left the premises without replacing the items removed from the house. It is further stated in the complaint that the time of departure of the petitioners was about 6.00 P.M. The complainant with the help of his friends kept the household items back into his house and learnt that items worth Rs.1,00,000/- were missing. It is to be noted that the details of the items allegedly missing are not forthcoming in the complaint. Admittedly, the petitioners who are senior officers had gone to the premises in question with their staff and the police officers. The photographs produced as annexures D and D1 shows that two police officers in uniform were present at the spot. It is also admitted in the complaint that the petitioners left the premises at about 6.00 P.M. Therefore, it is incomprehensible to accept the allegation of disappearance of belonging worth Rs.1,00,000/- in broad daylight in the presence of police officers and the security personnel.
18. Facts of the case clearly disclose that Smt. Shanbhag has been in occupation of a premises belonging to a State owned undertaking since 1988. She is not an employee of KPCL. She works for BSNL. However, the legality and correctness of allotment is not the subject matter of this petition. Suffice to note that an official belonging to a different public sector undertaking is in occupation of the building belonging to a State owned power generating company. She was alleged to be remaining in unauthorised occupation of the premises and also in arrears of rents. At the material point of time and date, i.e. 23.6.2015, she did not have the protection of interim order. Therefore, the presence of the petitioners, their staff and the police officers assisting in execution of a valid order of eviction is not per se illegal. In a petition under Section 482 Cr.P.C., it is imperative to examine the facts with reference to equitable considerations. It is held by a Constitutional Bench of the Hon ble Supreme Court that
Equity sustains law and twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal Law
[(See Bhagirath v. Delhi Administration (1985)2 SCC 580].
19. In the facts and circumstances of this case, the second respondent, the husband of Smt. Shanbag, in my considered view, cannot be permitted to play around with the instant criminal complaint against the petitioners to arm-twist them. Both the petitioners are officers in the Engineering Discipline and acted on the advise of their lawyer.
20. In the circumstances, in my considered view, no useful purpose would be served by continuing the criminal proceedings against the petitioners. Therefore, instant petition merits consideration and deserves to be allowed.
21. In the result, the following order:
ORDER
Complaint in Crime No.45/2015, registered by Dandeli Town Police Station, against petitioner Nos.1 and 2 for the offences punishable under Sections 143, 147, 448, 427, 504, 506 r/w 149 IPC now pending on the file of the Principal Civil Judge, (Jr.Dn.), and JMFC, Dandeli and all further proceedings thereon stand quashed.