- 1 - WP No.13059 of 2019 C/W WP No.27468 OF2019® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE12H DAY OF SEPTEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.13059 OF2019(GM-RES) C/W WRIT PETITION No.27468 OF2019(GM-RES) IN WP NO.13059 OF2019BETWEEN:
1. SMT. ARUNA KANNUR D/O RG PUJAR, 52 YEARS OLD PRESIDENT OF KAILASH APARTMENT OWNERS WELFARE ASSOCIATION FLAT NO.103-B-8, KAILASH APARTMENTS MYSORE ROAD, BENGALURU56005 2. ABHISHEK.B.N. OFFICE OF KAILASH APARTMENT OWNERS WELFARE ASSOCIATION KAILASH APARTMENTS MYSORE ROAD, BENGALURU56005 ...PETITIONERS (BY SRI. SANDESH J CHOUTA, SR. COUNSEL A/W SRI. ROHAN HOSMATH, ADVOCATE-PH) AND:
1. THE STATE OF KARNATAKA BY KENGERI POLICE STATION REP. BY PUBLIC PROSECUTOR2 K.S. RAVIKUMAR AGED ABOUT47YEARS KAILASH APARTMENT OWNERS WELFARE ASSOCIATION FLAT NO.404-B-8 - 2 - WP No.13059 of 2019 C/W WP No.27468 OF2019KAILASH APARTMENTS MYSORE ROAD, BENGALURU56005 … RESPONDENTS (BY SRI. MAHESH SHETTY, HCGP FOR R1; R2-SRI. K.S. RAVI KUMAR-PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF THE CRPC, PRAYING TO SET ASIDE THE COMPLAINT REGISTERED IN PCR NO.68/2018 PRODUCED AT ANNEXURE-E PENDING THE FILE OF THE LXXI ADDN. CITY AND SESSIONS JUDGE AND SPECIAL JUDGE AT BENGALURU IN PCR NO.68/2012 AND ETC. ***** IN WP NO.27468 OF2019BETWEEN: RAMALINGAIAH S/O KEMPE GOWDA AGED60YEARS SECRETARY, KAILASH APARTMENTS OWNERS WELFARE ASSOCIATION R/AT No.FLAT NO.301, B-10 KAILASH APARTMENTS JNANABHARATHI ENCLAVE MYSORE ROAD, KENGERI BENGLAURU56005 ...PETITIONER (BY SRI. A.R. HOLLA, ADVOCATE-PH) AND:
1. STATE OF KARNATAKA BY KENGERI POLICE STATION REP. BY PUBLIC PROSECUTOR2 K.S. RAVI KUMAR S/O D.S. SIDDAPPA AGED ABOUT47YEARS - 3 - WP No.13059 of 2019 C/W WP No.27468 OF2019R/AT No.FLAT No.104 B-8, KAILASH APARTMENTS JNANABHARATHI ENCLAVE MYSORE ROAD, KENGERI BENGLAURU-560059 … RESPONDENTS (BY SRI. MAHESH SHETTY, HCGP FOR R1; R2-K.S.RAVI KUMAR-PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF THE CRPC., PRAYING TO QUASH THE COMPLAINT REGISTERED IN PCR NO.68/2018 PENDING BEFORE THE LXXI ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE AT BENGALURU IN PCR No.68/2018, ANNEXURE-B DATED2612.18 AND ETC. ***** THESE WRIT PETITIONS COMING ON FOR FURTHER HEARING AND HAVING BEEN RESERVED FOR
ORDERS ON1208.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER1 In W.P. No.13059/2019 the petitioner No.1 who is accused No.1 and petitioner No.2 who is accused No.5 are before this Court seeking for the following reliefs: I. Set aside a) The complaint registered in PCR No.68/2018 produced at Annexure-E pending the file of the LXXI Addn. City and Sessions Judge and Special Judge at Bengaluru in PCR No.68/2012l; - 4 - WP No.13059 of 2019 C/W WP No.27468 OF2019b) The order dated 27.12.2018 produced at Annexure- G referring the private complaint to the respondent No.1 Police for Investigation under section 156(3) of the code of criminal procedure, 1908; c) The order dated 29.12.2018 produced at Annexure- G referring the 'supplementary complaint" to the Respondent No.1 police for investigation u/s 156(3) of the code of criminal procedure, 1908; d) And the entire proceedings pending on the file of the LXXI Addn. City and Sessions Judge and Special Judge at Bengaluru in PCR No.68/2012; II. Consequently, quash the FIR produced at Annexure-J in Crime No.82/2019 registered by the Kengeri Police Station, Bengaluru for offences punishable u/s 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va) and section 4 of the schedule caste and schedule tribes (prevention of atrocities) act, 1989 in so far as the petitioners herein; III. Issue direction to initiate prosecution of the complainant/respondent No.2 for abuse of process of law. IV. Issue such order or direction as this Hon’ble Court deems fit in the interest of justice and equity.
2. In W.P. No.27468/2019 the petitioner who is accused No.2 is before this Court seeking for the following reliefs: a. Quash the complaint registered in PCR No.68/2018 pending before the LXXI Addl. City Civil and Sessions Judge and Special Judge at Bengaluru in PCR No.68/2018, Annexure-B dated 26.12.18.-. 5 - WP No.13059 of 2019 C/W WP No.27468 OF2019b. Quash the orders dated 27.12.2018 and referring to the private complaint No.68/2018 to the respondent no.1 Police for Investigation u/s 156(3) of the Cr.P.C. annexure-c. c. Quash the FIR in Crime No.82/2019 dated 13.03.2019 registered in the Kengeri Police Station, Bengaluru for offences punishable u/s 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va) and section 4 of the SC & ST (Prevention Of Atrocities) Act, 1989, Annexure-E, so far as the petitioner herein concerned. d. Pass such other order deemed necessary having regard to the facts and circumstances of the case.
3. The facts in both the matters are the same. The facts are:
3. 1. The petitioners in both these petitions and respondent No.2 who is a complainant are stated to be residents and owners of apartment in Kailash apartments constructed by the BDA. The owners of the various apartments have subjected the development to the provisions of Karnataka Apartment Ownership Act, 1972 (for short ‘KAOA’) by executing a deed of declaration dated 16.10.2015 which is - 6 - WP No.13059 of 2019 C/W WP No.27468 OF2019registered with the office of the Senior Sub- registrar, Jayanagar. 3.2. It is contended that the affairs of the said apartment is run by an Association formed under Deed of declaration in terms of the bye- laws forming part of the Deed of declaration. 3.3. There are office bearers who are elected to the Executive committee of the Association viz., [for short ‘Association’].. The governing council of the Association consists of 31 members including 9 office bearers or members of the Executive Committee, all of who are nominated or elected by the governing body. The governing council having two members from each block, there being 11 blocks, the governing council and the Executive Committee is in-charge of the day-today affairs of the Association and the executive committee - 7 - WP No.13059 of 2019 C/W WP No.27468 OF2019comprising of 9 office bearers viz., President, Vice-President, Secretary, 4 Joint Secretaries, Treasurer and a Joint Treasurer, who would exercise powers and perform all duties for the proper administration of the Association. One of the powers and duties being in terms of Rule 3(i) of the Rules as under: “3(i) Collect the monthly assessments towards common expenses, contributions towards Sinking Fund, corpus Fund, and Application Fee, Membership Fee and any other payments and contributions/assessments from the Owners/ members.
3.4. Thus, these amounts which are collected are used for the purpose of monthly upkeep of the Apartment complex. In terms of bye-law (6), if there is any default/defaults, the defaulter shall be disqualified and the Executive committee could terminate the common amenities and facilities and services to that particular - 8 - WP No.13059 of 2019 C/W WP No.27468 OF2019apartment which is reproduced hereunder for easy reference: “6. Disqualification: a) A member, who has not paid the assessments or ad-hoc assessments of regular nature beyond 90 days from the due date, will be treated as a "DEFAULTER" and may result in termination of common amenities, facilities, services and utilities to the said member and his Apartment, after notice of ten days. Display of defaulter's names in the Notice Board and/or on the outside walls of their respective Apartments may also be made as per the decision of the Executive Committee. To reinstate the usage of common amenities and facilities & Services, the member has to clear all past dues with interest and of restoration charges. The restoration charges will be as decided by the Governing Council. b) Defaulters are not entitled to vote in any of the meetings of the Association. c) Defaulters are not eligible to be/continue to be as a member of the Management Committees or any other committee. 3.5. It is on account of respondent No.2 having defaulted in payment of the assessments and maintenance charges, by exercising power under bye-law (6), the Executive Committee - 9 - WP No.13059 of 2019 C/W WP No.27468 OF2019had disconnected the common services and utilities including electricity to the Apartment of respondent No.2, which has resulted in respondent No.2 filing criminal complaint and it is in that background the petitioners in both the petitions are before this Court seeking for quashing of the complaint.
4. Sri. Sandesh J.Chouta, learned Senior counsel appearing for the petitioners would submit that:
4. 1. Respondent No.2 is in arrears of monthly maintenance, as a result of which several notices were issued when the monthly maintenance was not paid, repeated follow up was made by the office bearers of the Association, respondent No.2 threatened the Association and its office bearers with dire consequences. Respondent No.2 claiming to belong to Schedule Caste had filed several false - 10 - WP No.13059 of 2019 C/W WP No.27468 OF2019complaints before the Registrar of Cooperative Societies, State Human Rights Commission and Karnataka State Commission for Scheduled Caste and Scheduled Tribe alleging that respondent No.2 was being targeted on account of his caste. 4.2. Respondent No.2 also filed a private complaint on 26.12.2018 under Section 200 of Code of Criminal Procedure [‘Cr.P.C.’ for short]. against the petitioners in both the matters and others for investigation into the offences under Section 120-B, mischief, nuisance and criminal conspiracy in illegally disconnecting the power supply to the complainant’s flat, as also under Section 3(1)(x) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 [for short ‘POA Act’]. alleging that on three occasions i.e. on 15.04.2018, 21.10.2018 and 22.12.2018 electricity connection to the - 11 - WP No.13059 of 2019 C/W WP No.27468 OF2019apartment of respondent No.2 was disconnected without notice to him citing non- payment of monthly maintenance, due to which respondent No.2 and his wife suffered mental and financial losses and alleges that BESCOM officers are acting at the behest of the Association members, despite respondent No.2 having made payment of electricity to the BESCOM authorities, the BESCOM Authorities are harassing respondent No.2. 4.3. The office bearers of the Association are targeting respondent No.2. Allegations were made with regard to there being no transparency in the day-today account maintenance and the petitioner No.1 has been using areas which are not meant for parking. 4.4. Respondent No.2 was alleged to be facing severe hardship and mental agony due to illegal - 12 - WP No.13059 of 2019 C/W WP No.27468 OF2019disconnection of electricity. His wife who is pursuing PhD was unable to use her laptop to carryout research and respondent No.2 could not prepare himself properly and take up All India Bar Council Examination conducted by the Bar Council of India. 4.5. On this basis, action was requested to be taken against the petitioners and other accused for the aforesaid offences. 4.6. Learned Senior counsel submits that Special Court mechanically directed the jurisdictional Asst. Commissioner of Police to register the case already referred, as a result of which, FIR in Crime No.82/2019 was registered by Kengeri Police Station, Bengaluru for the offences punishable under Section 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va) and Section 4 of the POA Act. A reading of the - 13 - WP No.13059 of 2019 C/W WP No.27468 OF2019allegations in complaint and FIR do not prima facie constitute any offence or make out any case against the petitioners. The complaint is malafide and vexatious one which has been filed as a counter blast to the demand made by the Association for payment of maintenance charges. By making use of the complaint, respondent No.2 has successfully defaulted in making payment of the maintenance charges which has an adverse impact on the other residents of the Apartment complex. 4.7. Registration of complaint under POA Act is completely impermissible, inasmuch as though the respondent No.2 may belong to Scheduled Caste, no offence under the said Act has been committed. The only demand made was for payment of maintenance amounts, which respondent No.2 from time to time agreed to make payment and it is only on account of non- - 14 - WP No.13059 of 2019 C/W WP No.27468 OF2019payment of the electricity charges, electricity was disconnected, this he submits cannot be a reason to invoke and/or make applicable POA Act. 4.8. Respondent No.2 has abused and misused the provisions of POA Act to achieve his nefarious objective inasmuch as, there is no particular incident which is attributable to the petitioners which would constitute an offence under the POA Act. The complaint is completely malafide, vengeful and has been filed only to default in payment of maintenance charges. The private complaint filed is in violation of the decision of the Hon’ble Apex Court. He relies upon the decision in Priyanka Srivastava v. State of U.P., [(2015) 6 SCC287, more particularly paragraphs 22, 30 and 31, which are reproduced hereunder for easy reference: - 15 - WP No.13059 of 2019 C/W WP No.27468 OF201922. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC705: (2014) 1 SCC (Cri) 35]. , the two-Judge Bench had to say this : (SCC p. 711, para
11) “11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC668: (2008) 2 SCC (Cri) 692]. examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC 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 - 16 - WP No.13059 of 2019 C/W WP No.27468 OF2019Magistrate 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 the 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.
31. We have already indicated that there has to be prior applications under Sections 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 is 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 - 17 - WP No.13059 of 2019 C/W WP No.27468 OF2019initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC1: (2014) 1 SCC (Cri) 524]. are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. 4.9. Relying on the above, he submits that the private complaint filed is in violation of the above Judgment, inasmuch as there is no affidavit enclosed along with the said complaint, as also there are no averments made in the private complaint as regards the petitioner having approached the Station House Officer for registration of the complaint and thereafter having approached the superior officer for registration of a complaint. The present complaint is one more complaint in a long line of complaints filed by respondent No.2 to harass the office bearers of the Association. 4.10. He relies upon the decision of the Apex Court in Subhash Kashinath Mahajan v. State of Maharashtra reported in [(2018) 6 SCC - 18 - WP No.13059 of 2019 C/W WP No.27468 OF2019454]., more particularly para 30 which is reproduced hereunder for easy reference: Submissions of the learned Additional Solicitor General (ASG) 30. The learned ASG submitted that in view of the decisions in Balothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC221:
1995. SCC (Cri) 439]. and Manju Devi [Manju Devi v. Onkarjit Singh Ahluwalia, (2017) 13 SCC439: (2017) 4 SCC (Cri) 662]. there is no occasion to go into the issue of validity of the provisions of the Atrocities Act. He also submitted that the decisions of this Court in Vilas Pandurang Pawar v. State of Maharashtra [Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC795: (2012) 3 SCC (Cri) 1062]. and Shakuntla Devi v. Baljinder Singh [Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC521: (2015) 4 SCC (Cri) 682]. permit grant of anticipatory bail if no prima facie case is made out. Thus, in genuine cases anticipatory bail can be granted. He also submitted that the Government of India had issued advisories on 3-2-2005, 1-4-2010 and 23- 5-2016 and also further amended the Atrocities Act vide Amendment Act 1 of 2016 which provides for creation of Special Courts as well as Exclusive Special Courts. Referring to the data submitted by the National Crime Records Bureau (NCRB) it was further submitted that out of the total number of complaints investigated by the police in the year 2015, both for the persons belonging to the SC category and also belonging to the ST category, in almost 15-16% cases, the competent police authorities had filed closure reports. Out of the cases disposed of by the courts in 2015, more than 75% cases have resulted in - 19 - WP No.13059 of 2019 C/W WP No.27468 OF2019acquittal/withdrawal or compounding of the cases. It was submitted that certain complaints were received alleging misuse of the Atrocities Act and a question was also raised in Parliament as to what punishment should be given against false cases. The reply given was that awarding punishment to members of SCs and STs for false implication would be against the spirit of the Act. A press statement dated 19-3-2015 was issued by the Central Government to the effect that in case of false cases, relevant sections of IPC can be invoked. It was submitted that no guideline should be laid down by this Court which may be legislative in nature. 4.11. Learned counsel submits that directions under Section 156(3) could only be issued to an officer incharge of police station and not to a specific officer muchless the Asst. Commissioner of Police and therefore, the order of the Special Court directing enquiry is bad in law. In support of the above argument, he relies upon the decision in CBI v. State of Rajasthan, [(2001) 3 SCC333 more particularly para No.1, 11, 16 and 17, which are extracted hereunder for easy reference: - 20 - WP No.13059 of 2019 C/W WP No.27468 OF20191. Has a Magistrate power to direct the Central Bureau of Investigation to conduct investigation into any offence?. This question, seemingly ingenuous, has become compounded with divergent verdicts pronounced by different High Courts. While the High Courts of Rajasthan and Delhi answered the question in the affirmative, the High Courts of Gujarat and Karnataka have answered it in the negative. These appeals are filed at the instance of the Central Bureau of Investigation (for short “CBI”) in challenge of the judgments of the High Courts of Rajasthan and Delhi by which the orders passed by certain Magistrates were upheld.
11. This means any other police officer, who is superior in rank to an officer in charge of a police station, can exercise the same powers of the officer in charge of a police station and when he so exercises the power he would do it in his capacity as officer in charge of the police station. But when a Magistrate orders investigation under Section 156(3), he can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. Nonetheless, when such an order is passed, any police officer superior in rank of such officer, can as well exercise the power to conduct an investigation, and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in Section 156(3) of the Code, though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the - 21 - WP No.13059 of 2019 C/W WP No.27468 OF2019police station either suo motu or on the direction of the superior officer or even that of the Government.
16. As the present discussion is restricted to the question whether a Magistrate can direct CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.
17. The appeals are accordingly allowed and the impugned orders of the Magistrates as well as the judgments of the High Court are hereby set aside. But this would not prejudice any investigation to be conducted on the FIR registered or to be registered by the police station concerned in respect of the complaints involved in these appeals. 4.12. The Special Court has in a mechanical manner referred the matter for investigation without appreciating whether there is indeed an offence which has been made out or not. Thus, he submits is in violation of the principles laid down by the Hon’ble Apex Court in Maksud Saiyed v. State of Gujarat, [(2008) 5 SCC668, - 22 - WP No.13059 of 2019 C/W WP No.27468 OF2019more particularly para No.13, which is extracted hereunder for easy reference:
13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. 4.13. In this regard, he also relies upon the Judgment in Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC705 more particularly para No.10 and 11 thereof, which are extracted hereunder for easy reference: - 23 - WP No.13059 of 2019 C/W WP No.27468 OF2019“10. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) CrPC, could act in a mechanical or casual manner and go on with the complaint after getting the report.
11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC668: (2008) 2 SCC (Cri) 692]. examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
4.14. Learned counsel submits that if the Special Court had applied its mind to the facts of the case, the Special Court could have only come to - 24 - WP No.13059 of 2019 C/W WP No.27468 OF2019a conclusion that the dispute is civil in nature inasmuch as the maintenance amount had not been paid resulting in disconnection of electricity which is permissible as per the Deed of Declaration and as such, the Special Court could not have referred the matter for investigation. In this regard, he relies upon the decision in Thermax Ltd.-.vs- K.M.Johny reported in [(2011) 3 SCC412 more particularly para No.34 thereof, which is extracted hereunder for easy reference: “34. The principles enunciated from the above quoted decisions clearly show that for proceeding under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to as a criminal proceeding.
4.15. He submits that respondent No.2 having suppressed the material facts, the petitioners - 25 - WP No.13059 of 2019 C/W WP No.27468 OF2019have produced the correspondence between the Association and respondent No.2, as also the statement given by respondent No.2 agreeing to make payment of due maintenance amounts. 4.16. These documents can be looked into even in a proceeding under Section 482 since they would go into the root of the matter. In this regard, he relies upon the decision in Prashant Bharti v. State (NCT of Delhi) [(2013) 9 SCC293, more particularly para No.22 thereof which is extracted hereunder for easy reference:
22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “CrPC”) has been dealt with by this Court in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC330: (2013) 3 SCC (Cri) 158]. wherein this Court inter alia held as under: (SCC pp. 347-49, paras 29-30) “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing - 26 - WP No.13059 of 2019 C/W WP No.27468 OF2019process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences, inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade - 27 - WP No.13059 of 2019 C/W WP No.27468 OF2019a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30. 1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?. 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?. 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?. - 28 - WP No.13059 of 2019 C/W WP No.27468 OF201930.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?. 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
4.17. He submits that none of the ingredients under Section 3(1)(g) of the POA Act have been satisfied and in this regard he relies upon the decision of this Court in Criminal Petition No.80/2021 dated 4.10.2021 [Sri Lokanath, vs. State of Karnataka and another]., more particularly para 11 thereof, which is extracted hereunder: “11. Then so far as the offence under Section 3(1)(g) of the Act is concerned, the essential ingredient is wrongful dispossession or wrongful interference. There is no material indicating - 29 - WP No.13059 of 2019 C/W WP No.27468 OF2019wrongful dispossession of second respondent from his land or wrongful interference with his land. If the premise of the litigation is seen, it is nothing more than a dispute between two adjacent land owners; it is pertinent to mention here that the petitioner disputes the very identity of the second respondent’s land and therefore, a competent Civil Court can alone take a decision in this regard. For this reason Section 3(1)(g) is also not attracted.
4.18. He submits that most of the grounds enunciated in State of Haryana v. Bhajan Lal, [1992 Supp (1) SCC335 would be applicable to the present case requiring quashing of the criminal proceedings, more particularly para No.10 and 22 thereof which is extracted hereunder for easy reference:
10. At the same time, one should also be alive to cases where false and frivolous accusations of corruption are maliciously made against an adversary exposing him to social ridicule and obloquy with an ulterior motive of wreaking vengeance due to past animosity or personal pique or merely out of spite regardless of the fact whether the proceedings will ultimately culminate into conviction or not.
22. Initially three separate written statements were filed before the High Court, one by Inspector Kartar Singh (on behalf of the State of Haryana, the SP and SHO who were respondents 1, 3 and 4 in the writ petition and who are the appellants - 30 - WP No.13059 of 2019 C/W WP No.27468 OF2019herein); another by respondent 2 Shri Devi Lal (who is the third pro forma respondent in this appeal) and the third one by respondent 5 in the writ petition (who is the complainant and respondent 2 in this appeal). Subsequently realising that Kartar Singh was not competent to file the written statement on behalf of the State, SP and SHO in terms of the Rules of Business, separate written statements one by the then SP Lekhi Ram and another by Inspector Tara Chand (who registered the case) were filed on July 14, 1988. However, no written statement was filed on behalf of the State of Haryana. The High Court before which several contentions were raised by the respective parties examined each of the allegations in detail in the light of the explanatory and denial statement which according to the High Court has not been either explained or denied by the State and rejected the plea of the appellants 2 and 3 submitting that it is wholly premature to say anything with regard to the truthfulness or otherwise of the allegations and observed as follows:
1. “… it is clear that the allegations made are just imaginary and fantastic.
2. “… his (respondent 2 Dharam Pal) sole object in putting complaint Annexure P-9 was to set the machinery of the criminal law in motion against the petitioner without verifying the truth or otherwise of his own allegations before levelling them against the petitioner in the complaint Annexure P-9 and that he was solely depending upon the fishing enquiry which may be undertaken by the police in the course of its investigation without being himself possessed or known to or seen any material or documents justifying his allegations of benami purchases, or under valuation of property allegedly purchased by the petitioner.” - 31 - WP No.13059 of 2019 C/W WP No.27468 OF20193. “Allegations obtaining in Annexure P-9 are, therefore, the outcome of a desperate, frustrated mind ….
4. “Irresponsible manner in which indiscriminate allegations have been levelled by Dharam Pal, respondent 5 against the petitioner in Annexure P-9 is patent from the assertions made in respect of benami ownership of house No.1028, Friends Colony, New Delhi by the petitioner.
5. “Respondent 5 appears to have made these allegations only to curry favour with respondent 2 and to avenge his own insult of defeat in elections against the petitioner's wife. The charges levelled in the complaint Annexure P-9 by respondent 5 against the petitioner are, therefore, all groundless.
6. “It was only the SP Lekhi Ram and the Inspector Tara Chand both of whom filed their individual written statements on July 14, 1988 more than eight months after the filing of the writ in December 1987, who tried to be more loyal to the king than the king himself and in turn respectively ordered the registration of the case against the petitioner and proceeded to the spot (God knows which one and for what purpose) with duly armed constabulary. Mala fides, if at all these can be attributed are attributable to SP Lekhi Ram and Inspector Tara Chand but not to Chaudhary Devi Lal, Chief Minister Haryana arrayed as respondent 2 in the writ petition.
4.19. Hence, learned Senior counsel submits that the above petition may be allowed.-. 32 - WP No.13059 of 2019 C/W WP No.27468 OF20195. Sri.K.S.Ravikumar, the complainant who has appeared as party in-person submitted as under:
5. 1. Respondent No.2 is an advocate belonging to Schedule Caste community, residing in the flat since March 2015. The complainant being a person belonging the Schedule caste and he being allotted an apartment under the Scheduled caste reservation category is being targeted. He submits that 50% flats are allotted to general category and 50% are allotted to reservation category, Apartment being developed by the BDA, it is a government apartment complex and as such, the same could not have been made subject to KAOA. It is the higher caste groups who have misled the residents of the Kailash Apartment owners to subject the apartment complex under KAOA, fraudulently obtained their signatures and - 33 - WP No.13059 of 2019 C/W WP No.27468 OF2019thereafter started extorting huge maintenance charges from the residents. 5.2. He submits that within three months of occupying the apartment, problems started for him that he being targeted on account of being a person of scheduled caste, the tyres of his motorcycle were deflated, dustbin contents were scattered, the spark plug of his motorcycle were disconnected, etc. and it is in that background that the office bearers of the Association have conspired together to show the complainant in bad light and to bring disrepute to him. He has been having problems with parking his motorcycle since his parking slot has been used by other apartment owners, when he had brought the same to the notice of the then president of the Association Sri.Ramanjaneyalu, instead of solving the same, he had abused the complainant and - 34 - WP No.13059 of 2019 C/W WP No.27468 OF2019Sri.Ramanjaneyalu had sent an e-mail to the apartment owners referring to the complainant as hooligan, uncivilized, filthy and unruly only because he belongs to the scheduled caste. 5.3. The complainant though filed a complaint on 4.01.2008 with Kengeri police, no action was taken on the same. The complainant attended the Association meeting on 1.4.2018 when he was allegedly verbally abused by certain of the members viz., Ramaiah, M.P.Nagaraj, Sachin, Surendra and others who also threatened him. 5.4. Upon accused No.2 becoming the president of the Association, he states that accused No.2 along with others criminally conspired to harass the complainant and his family by illegally disconnecting electricity supply to the complainant’s flat. Hence, he had called the BESCOM customer care on several occasions to - 35 - WP No.13059 of 2019 C/W WP No.27468 OF2019restore the electricity connection. When jurisdictional personnel did not initiate any action, he made a representation to the higher officials of the BESCOM, who refused to take action against the accused since they are influential persons. It is in that background, the complainant filed a private complaint in PCR No.68/2018 on 26.12.2018 which came to be referred to the Kengeri Police station for investigation. 5.5. He submits that petitioners are not entitled for anticipatory bail on account of the petitioners have endangered the life of the complainant and his family. There is a ban under Section 18-A of the POA (Amendment) Act, as amended in the year 2018 from granting anticipatory bail. The complainant has only set the law into motion by filing a private complaint as regards the repeated atrocities committed on him.-. 36 - WP No.13059 of 2019 C/W WP No.27468 OF20195.6. The apartment complex having been constructed by the BDA, same could not have been subjected to the KAOA and Rules. The title of the property vests with the BDA which is a government organisation. Mere registration of Deed of Declaration would not create an Association. Bye-laws have not received the assent of any public authority and as such, the complainant is not bound by the same. 5.7. He submits that he is not required to make payment of any charges towards common amenities. If at all the respondents can disconnect common lights etc., and not provide any common services to the complainant since complainant is not interested in obtaining such common services, the complainant is only concerned with his apartment and happy to be residing in his own apartment as regards which he has made payment of electricity dues.-. 37 - WP No.13059 of 2019 C/W WP No.27468 OF20195.8. He submits that police and the BESCOM authorities are hand in glove with the office bearers of the Association as regards which he has filed a complaint against the BESCOM officials with the higher officials. Electricity is an essential service and forms the human right and fundamental right to live and as such, the disconnection of electricity by the petitioner requires stringent action against them. It is the obligation of this Court to protect the respondent No.2 from said disconnection of electricity when he has paid electricity bill to the BESCOM on separate meter being installed. He does not intend to make payment of any amount as regards common amenities as that has nothing to do with the supply of electricity to his apartment. 5.9. He relies upon the decision in T.M. PRAKASH VS. DISTRICT COLLECTOR REPORTED IN LAWS (MAD)- - 38 - WP No.13059 of 2019 C/W WP No.27468 OF20192013 (9) 175, more particularly para 66, 67, 68, 70 and 87 thereof, which are reproduced hereunder for easy reference:
66. Lack of electricity supply is one of the determinative factors, affecting education, health, cause for economic disparity and consequently, inequality in the society, leading to poverty. Electricity supply is an aid to get information and knowledge. Children without electricity supply cannot even imagine to compete with others, who have the supply. Women have to struggle with firewood, kerosine, in the midst of smoke. Air pollution causes lung diseases and respiratory problems. Electricity supply to the poor, supports education and if it is coupled with suitable employment, disparity is reduced to certain extent. Lack of education and poverty result in child labour.
67. When right to education upto the age of 14 years is a fundamental right, when right to health is also recognised as a right to life, under Article 21 of the Constitution of India, access to electricity supply should also be considered as a right to life, in terms of Article 21 of the Constitution of India. The respondents ought to have addressed all the issues, instead of banking on the Committee's decision, which in the humble opinion of this Court, is not in aid of human right, but inapposite to the need for, providing the basic amenity, electricity. The authorities ought to have considered, whether it would be effective enforcement of Article 21 or Article 21-A of the Constitution of India, while denying the petitioners, access to electricity supply.
68. The respondents ought to have visualised the difficulties of the women, children and aged persons, living in the huts for several years, without electricity. Electricity supply is an essential and important factor for achieving socio-economic rights, - 39 - WP No.13059 of 2019 C/W WP No.27468 OF2019to achieve the constitutional goals with sustainable development and reduction of poverty, which encompasses lower standards of living, affects education, health, sanitation and many aspects of life. Food, shelter and clothing alone may be sufficient to have a living. But it should be a meaningful purpose. Lack of electricity denies a person to have equal opportunities in the matter of education and consequently, suitable employment, health, sanitation and other socio-economic rights. Without providing the same, the constitutional goals, like Justice, Liberty, Equality and Fraternity cannot be achieved.
70. Access to electricity should be construed as a human right, of course, to the requirements to be satisfied under the electricity laws. Denial of the same, upon even satisfying the requirements, would amount to violation of human rights. The action of the respondents is regressive. Electricity supply under the Electricity Act, the Distribution and Supply Code, is a legal right. At this juncture, this Court deems it fit to consider the meaning of the word, 'right' and few decisions, as to when a Mandamus, can be sought for, 87. It is the fundamental duty of the respondents to show compassion to those who are living in huts and tenements for long number of years, taking into consideration their socio-economic disabilities, without electricity supply for many years. Preamble to the Constitution of India guarantees right of every person to justice, social, economic and political. When socio and economic justice is the mandate of the Constitution of India, it is a traversity of justice to deny electricity to the petitioners. Income is one of the sources for achieving an egalitarian society and it is the fundamental right to decent living. Providing electricity to the poor, subject to the satisfying conditions, as per the electricity laws, would - 40 - WP No.13059 of 2019 C/W WP No.27468 OF2019reduce the economic imbalance and help the under privileged. The authorities should be pragmatic and realistic to the constitutional goals. The weaker sections and under privileged do not crave, in their heart, for power in hierarchical positions, they only want electric power to have "lighting" in their house. Hut dwellers cannot expect and afford luxury. But for them, it is only a basic amenity. Electricity supply should, not only be extended to pattadars or the owners of lands, but it should also be extended to the poor and the needy, who live in government poromboke lands, when they substantiate occupation, for a considerable period. 5.10. He relies on the decision of the Hon’ble Chhattisgarh High Court in N.R.Sharma Vs. Chattisgarh State Power Distribution Company Limited in W.P.(C) 3340/2017, more particularly para 12 thereof, which is reproduced hereunder for easy reference: “12. Access to Electricity should be construed as a human right, of course, to the requirements to be satisfied under the Electricity laws. Denial of the same, upon even satisfying the requirements, would amount to violation of human rights”. 5.11. He relies on the decision of the Hon’ble Apex Court in CHAMELI SINGH AND OTHERS VS. STATE OF UP [(1996) 2 SCC549, more particularly para - 41 - WP No.13059 of 2019 C/W WP No.27468 OF20198 thereof, which is reproduced hereunder for easy reference:
8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under at obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the - 42 - WP No.13059 of 2019 C/W WP No.27468 OF2019Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights 5.12. He relies upon the decision of Gauhati High Court in Abdul Rehman vs. Assistant Executive Engineer [CRP No.211/2009]. “Electricity is an essential requirement for any occupied premises and if a occupier is threatened with disconnection of power, it certainly amounts to invasion of the right of the complainant to fully enjoy the property occupied legitimately, by the complainant.
5.13. He submits that disconnection of electricity is governed in terms of Electricity Act, 2003 and the Association cannot disconnect electricity to his apartment. Disconnection of electricity is a criminal offence and in this particular matter, disconnection being on account of the - 43 - WP No.13059 of 2019 C/W WP No.27468 OF2019complainant belonging to the schedule caste, the same is an offence in terms of Section 3(1)(g) of the POA Act, which is reproduced hereunder for easy reference:
3. 1)(g) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom. 5.14. He relies upon the decision of Hon’ble Himachal Pradesh High Court in Ramesh Thakur vs Roshini Chauhan reported in 2019 SCC Online HP1135 more particularly para 6 and 7 which are reproduced hereunder for easy reference:
6. Bearing in mind the aforesaid exposition of law, it would be noticed that admittedly the electricity supply to the premises let out to the tenant had been disconnected by the landlord on the ground of non-payment of such charges.
7. Even though there appears to be some dispute regarding rate of rent, but that by itself was not sufficient ground and could not have been made the - 44 - WP No.13059 of 2019 C/W WP No.27468 OF2019basis for the landlord to disconnect the electricity supply to the premises let out to the tenant. Further ground on the basis of which, electricity was disconnected was that the tenant had failed to pay the electricity charges. Even this fact by itself would not be a sufficient ground to disconnect the electricity supply, more particularly, when it has been proved on record that there is sub-meter installed in the premises. Once that be the admitted position, then obviously non-payment of the amount due, if any, on account of electricity consumption would be a matter between electricity department and the tenant and it would be the prerogative of the aforesaid department to disconnect the electricity supply as per rules in case the electricity charges are not deposited. 5.15. He relies upon the decision in M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. VS. STATE OF MAHARASHTRA IN CRL.A NO.330/2021, more particularly para 8.2, 9.2, 9.3, 9.4, 9.7 and 23 thereof, which are reproduced hereunder for easy reference:
8. 2 The Privy Council in the case of Khwaja Nazir Ahmad (supra) observed that in India, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. It is further observed that it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. It is further observed that the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a - 45 - WP No.13059 of 2019 C/W WP No.27468 OF2019due observance of law and order is only to be obtained by leaving each to exercise its own function. 9.2 In the case of Union of India v. Prakash P. Hinduja, (2003) 6 SCC195 in paragraph 20, it is observed and held as under: “20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.
9.3 In the case of Bhajan Lal (supra), it is observed and held by this Court that save in exceptional cases where non interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of the investigation of offence. It is further observed that in a routine case where information of an offence or offences has been lodged, investigation commenced, search and seizure followed and suspects arrested, the resort to the unusual procedure of oral applications and oral appeals and interim stay order thereon would have the effect of interfering and staying the investigation of offences by the investigating officer performing statutory duty under Cr.P.C. 9.4 In the case of Ujjal Kumar Burdhan (supra), it is observed and held by this Court that unless case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at early/premature stage of investigation.-. 46 - WP No.13059 of 2019 C/W WP No.27468 OF20199.7 In the case of Prakash P. Hinduja (supra), it is observed and held by this Court that the court would not interfere with the investigation or during the course of investigation which would mean from the time of lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency.
23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; - 47 - WP No.13059 of 2019 C/W WP No.27468 OF2019iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR.-. 48 - WP No.13059 of 2019 C/W WP No.27468 OF2019Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are - 49 - WP No.13059 of 2019 C/W WP No.27468 OF2019required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.-. 50 - WP No.13059 of 2019 C/W WP No.27468 OF2019xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied. 5.16. Relying on the above decision, he submits that this Court ought not to exercise powers under Section 482 of Cr.P.C. when the matter is pending for investigation and this Court ought to encourage investigation to be completed, so that the truth can come out. 5.17. He relies upon the decision of this court in MAHENDRA K C VS. STATE OF KARNATAKA [CRL.A. No.1238/2021]., more particularly para 16, 18, 21, 25, 26 and 30 thereof, which are reproduced hereunder for easy reference:
16. On reading the judgment of the Single Judge, it would appear that the Single Judge has failed to notice the distinction between a petition for quashing under Section 482 (which was being considered) and a criminal trial or an appeal against a conviction on a charge under Section 306. The Single Judge has transgressed the limits of the - 51 - WP No.13059 of 2019 C/W WP No.27468 OF2019jurisdiction under Section 482 of the CrPC. The judgment is replete with hypothesis and surmises on the basis of which the Single Judge has reached an inference on facts. The Single Judge has tested the veracity of the allegations in the criminal complaint and in the suicide note left behind by the deceased without having the benefit of an evidentiary record which would be collected during the trial. At the stage when the High Court considers a petition for quashing under Section 482 of the CrPC, the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of trial. The High Court in the present case has virtually proceeded to hold a trial, substituting its own perception for what it believed should or should not have been the normal course of human behavior. This is clearly impermissible.
18. In this backdrop, it is impossible on a judicious purview of the contents of the complaint and the suicide note for a judicial mind to arrive at a conclusion that a case for quashing the FIR had been established. In arriving at that conclusion, the Single Judge has transgressed the well settled limitations on the exercise of the powers under Section 482 CrPC and has encroached into a territory which is reserved for a criminal trial.
21. Based on the above precedent, the High Court while exercising its power under Section 482 of the CrPC to quash the FIR instituted against the second respondent-accused should have applied the following two tests: i) whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable - 52 - WP No.13059 of 2019 C/W WP No.27468 OF2019that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint. Before proceeding further, it is imperative to briefly discuss the law on the abetment of suicide to determine if a prima facie case under Section 306 of the IPC has been made against the respondent-accused.
25. While adjudicating on an application under Section 482 CrPC, the High Court in the present case travelled far away from the parameters for the exercise of the jurisdiction. Essentially, the task before the High Court was to determine whether the allegations made in the first information report or the complaint, even if they are (2010) 1 SCC707(2012) 9 SCC734(2018) 7 SCC781(2019) 3 SCC315(2019) 17 SCC301(2020) 15 SCC359(2020) 10 SCC200(2021) 2 SCC427taken at their face value and accepted in their entirety did or did not prima facie constitute an offence or make out a case against the accused.
26. Instead of applying this settled principle, the High Court has proceeded to analyze from its own perspective the veracity of the allegations. It must be emphasized that this is not a case where the High Court has arrived at a conclusion that the allegations in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Nor is this a case where the criminal proceeding is manifestly mala fide or has been instituted with an ulterior motive of taking vengeance on the accused. On the contrary, the specific allegations in the FIR and in the complaint find due reflection in the suicide note and establish a prima facie case for abetment of suicide within the meaning of Sections 306 and 107 - 53 - WP No.13059 of 2019 C/W WP No.27468 OF2019of the IPC. The entire judgment of the High Court consists of a litany of surmises and conjectures and such an exercise is beyond the domain of proceeding under section 482 of the CrPC. The High Court has proceeded to scrutinize what has been disclosed during the investigation, ignoring that the investigation had been stayed by an interim order of the High Court, during the pendency of the proceedings under section 482.
30. The High Court by its order has prevented the completion of the investigation in the complaint registered as Crime No.565/2016 pending on the file of the IInd Additional Civil Judge (Junior Division) and JMFC Court, Maddur, Mandya District. The alleged suicide is of a person who was working as a driver of a Special Land Acquisition Officer, who is a public servant and against whom serious and grave allegations of amassing wealth disproportionate to the known sources of income were made by the deceased. The suicide note contains a detailed account of the role of the accused in the events which led to the deceased committing suicide. These are matters of investigation and possibly trial. The High Court stalled the investigation by granting an interim order of stay. If the investigation had been allowed to proceed, there would have been a revelation of material facts which would aid in the trial, for the alleged offence against the second respondent. 5.18. He submits that allegations having been made by him whether they are true or not have to be ascertained only during investigation. He relies upon the decision of Hon’ble High Court of - 54 - WP No.13059 of 2019 C/W WP No.27468 OF2019Judicature at Allahabad in Veena Mittal Vs. State of U.P. and others in Crl.A. 122/2020, more particularly para 6 thereof which is produced hereunder for easy reference:
6. In this backdrop, the finding of the High Court to the effect that there is no specific allegation against the second and third respondents or that, as the mother and sister of the bridegroom, they would not be either beneficiaries or have a direct link with the perpetrators of the crime is not based on cogent material or a reading of the FIR. It is well-settled that at the stage when the High Court considers a petition for quashing criminal proceedings under Section 482 of the CrPC, the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no offence, as alleged, has been made out, that the Court may be justified in exercising its jurisdiction to quash. The parameters of the jurisdiction under Section 482 have been reiterated in a consistent line of authorities and, at this stage, it may be material to refer to the recent decision of this Court in Neeharika Infrastructure v. State of Maharashtra4. Accordingly, we allow the appeal and set aside the impugned judgment and order of the High Court dated 15 April 2019 in Criminal Miscellaneous Application No 27511 of 2018. Relying on the above, he submits that exercising power under Section 482 of Cr.P.C., FIR ought not to be quashed.-. 55 - WP No.13059 of 2019 C/W WP No.27468 OF20195.19. He relies upon the decision of Hon’ble Apex Court in Kaptan Singh vs. The State of Uttar Pradesh and others in Crl.A. No.787/2021, more particularly para 13 thereof, which is reproduced hereunder for easy reference:
13. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C. only and the trial Court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed. 5.20. As regards the submission of learned Senior counsel that there is no compliance of Section 154(1) and 154(3) of the Cr.P.C, he submits that on each of the occasion when the electricity was disconnected, he had filed complaint with Kengeri police station who had - 56 - WP No.13059 of 2019 C/W WP No.27468 OF2019not taken any action, more particularly on 15.04.2018, 21.10.2018 and 22.12.2018 and 13.01.2019. In view thereof, he had sent an email to the Commissioner of Police enclosing the said complaints. When no action was taken, he filed a private complaint on 26.12.2018. Therefore, he submits that though the complaint does not specifically state all these facts, he has produced documents along with objections which would indicate the same. As such, there is compliance with the requirement of the decision of the Hon’ble Apex Court in Priyanka Srivatsva’s case (supra). 5.21. As regards the contention of learned Senior Counsel for the petitioners that the matter could not have been referred directly to the Assistant Commissioner of Police, by relying on Rule 7 of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Rules, 1995 [‘POA - 57 - WP No.13059 of 2019 C/W WP No.27468 OF2019Rules’ for short]., he submits that investigation requires to be done by the police officer not below the rank of Deputy Superintendent of Police. Hence, the trial Court could not have referred the matter to a Station House Officer and ACP being of the rank of Deputy Superintendent of Police, the trial Court has rightly referred the matter to the ACP for investigation. The POA Act being a special enactment, would prevail over the general enactment viz., Cr.P.C. 5.22. He submits that trial Court has not taken cognizance of any office, but has only referred the matter for investigation under Section 156(3) of Cr.P.C. and in this regard he relies upon the decision of the Hon’ble Apex Court in Devarapalli Lakshminarayana -v- V.Naryana Reddy reported in (1976) 3 SCC252 more particularly, paras 16, 17 and 18 - 58 - WP No.13059 of 2019 C/W WP No.27468 OF2019which are reproduced hereunder for easy reference:
16. The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a complaint disclosing a cognizable offence — whether or not triable exclusively by the Court of Session — to the police for investigation under Section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section 156(3) and the one directed under Section 202, has also been maintained under the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.
17. Section 156(3) occurs in Chapter XII, under the caption : “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading: “Of complaints to Magistrates”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise - 59 - WP No.13059 of 2019 C/W WP No.27468 OF2019their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
18. In the instant case the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under Section 156(3). He did not bring into motion the machinery of Chapter XV. He did not examine the complainant or his witnesses under Section 200 CrPC, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did not arise. Instead of taking cognizance of the offence, he has, in the exercise of his discretion, sent the complaint for investigation by police under Section 156. 5.23. Relying on the above, he submits that the trial Court has rightly referred the matter for investigation pending taking cognizance of the same.-. 60 - WP No.13059 of 2019 C/W WP No.27468 OF20195.24. He also relied upon the decision of the Apex Court in Modh. Yusuf Vs. Smt.Afaq Jahan and another reported in [JT2006SC10, relevant portion is reproduced hereunder for easy reference: This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. 5.25. He submits that it is not a fit case for this Court to exercise powers either under Article 226 of the Constitution of India or Section 482 of - 61 - WP No.13059 of 2019 C/W WP No.27468 OF2019Cr.P.C. In this regard, he relies upon the decision in West Bengal Vs. Narayan K. Patodia reported in [AIR2000SC1405, relevant portion is reproduced hereunder for easy reference: That apart, how could the FIR be quashed if the investigating agency should have been different?. By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
It is quite unfortunate that learned single judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegation of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it. 5.26. He states that since prima facie grounds are made out to establish an offence having been committed by the petitioners, this Court ought - 62 - WP No.13059 of 2019 C/W WP No.27468 OF2019not to quash the complaint at the investigation stage. In this regard he relies upon the decision of the Apex Court in Sau. Kamal Shivaji Pokarnekar vs. The State of Maharashtra & other in Crl.A. No.255/2019, more particularly, para 9 which is reproduced hereunder for easy reference:
9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted. 5.27. He relies upon the decision in Dr.Lakshman vs. The State of Karnataka in Crl.A. No.1573-75/2019, more particularly, para 9 - 63 - WP No.13059 of 2019 C/W WP No.27468 OF2019which is reproduced hereunder for easy reference:
9. It is not seriously disputed by the parties with regard to the entering of the agreements for procuring the land in favour of the appellant in Ballur Village, Anekal Taluk, Bangalore Urban District and respondents have received the amount of Rs.9 crores by way of demand drafts and cheques. It is the specific case of the appellant that there are schedules mentioned to the agreements as per which respondents have agreed to procure the land covered by Survey Nos.115 and 117 of Ballur Village apart from other lands. In a petition under Section 482, Cr.P.C. it is fairly well settled that it is not permissible for the High Court to record any findings, wherever there are factual disputes. Merely on the ground that there is no pagination in the Schedule, the High Court has disbelieved such Schedule to the Agreements. It is the specific case of the appellant that the lands covered by Survey Nos.115 and 117 Crl.A.@ SLP(Crl.)Nos.6115-6117/2017 of Ballur Village were sold even prior to the first agreement, as such respondents have committed an act of cheating. It is also the specific case of the appellant that two cheques were issued by respondents-accused by way of security for the amount of Rs.9 crores which is advance but the account of such cheques was closed even prior to entering into the Agreement itself. The second complaint filed by the appellant is self-explanatory and he is forcefully made to sign the sale deed which were executed subsequently for the lands covered by Survey Nos.115 and 117 of Ballur Village. Mere filing of the suits for recovery of the money and complaint filed under Section 138 of the N.I. Act by itself is no ground to quash the proceedings in the complaints filed by the appellant herein. When cheating and criminal conspiracy are alleged against the accused, for advancing a huge sum of Rs.9 crores, it is a matter which is to be tried, but at the same time the High Court has - 64 - WP No.13059 of 2019 C/W WP No.27468 OF2019entered into the disputed area, at the stage of considering the petitions filed under Section 482, Cr.P.C. It is fairly well settled that power under Section 482 Cr.P.C. is to be exercised sparingly when the case is not made out for the Crl.A.@ SLP(Crl.)Nos.6115-6117/2017 offences alleged on the reading of the complaint itself or in cases where such complaint is filed by way of abuse of the process. Whether any Schedules were appended to the agreement or not, a finding is required to be recorded after full fledged trial. Further, as the contract is for the purpose of procuring the land, as such the same is of civil nature, as held by the High Court, is also no ground for quashing. Though the contract is of civil nature, if there is an element of cheating and fraud it is always open for a party in a contract, to prosecute the other side for the offences alleged. Equally, mere filing of a suit or complaint filed under Section 138 of the N.I. Act, 1881 by itself is no ground to quash the proceedings. While considering the petition under Section 482 of Cr.P.C., we are of the view that the High Court also committed an error that there is a novation of the contract in view of the subsequent agreement entered into on 08.11.2012. Whether there is novation of contract or not and the effect of such entering into the contract is a matter which is required to be considered only after trial but not at the stage of considering the application under Section 482, Cr.P.C. 5.28. He relies upon the decision in Mahendra.K.C.-. v- The State of Karnataka & Anr. in [Crl.A. NO.1238/2021]. more particularly, paras 16 and 27 thereof which are reproduced hereunder for easy reference: - 65 - WP No.13059 of 2019 C/W WP No.27468 OF201916. On reading the judgment of the Single Judge, it would appear that the Single Judge has failed to notice the distinction between a petition for quashing under Section 482 (which was being considered) and a criminal trial or an appeal against a conviction on a charge under Section 306. The Single Judge has transgressed the limits of the jurisdiction under Section 482 of the CrPC. The judgment is replete with hypothesis and surmises on the basis of which the Single Judge has reached an inference on facts. The Single Judge has tested the veracity of the allegations in the criminal complaint and in the suicide note left behind by the deceased without having the benefit of an evidentiary record which would be collected during the trial. At the stage when the High Court considers a petition for quashing under Section 482 of the CrPC, the test to be applied is whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima facie establish the ingredients of the offence alleged. At this stage, the High Court cannot test the veracity of the allegations nor for that matter can it proceed in the manner that a judge conducting a trial would, on the basis of the evidence collected during the course of trial. The High Court in the present case has virtually proceeded to hold a trial, substituting its own perception for what it believed should or should not have been the normal course of human behavior. This is clearly impermissible. 27 The High Court observed that a prima facie case for the commission of offence under Section 306 of the IPC is not made out since: i) the suicide note does not describe the specific threats; ii) details of the alleged demand of Rs. 8 lacs from the deceased by the respondent-accused are not set out in the suicide note; and iii) no material to corroborate the allegations detailed in the suicide note has been unearthed by the investigating agency. The High Court observed that since the deceased took considerable time to write a twelve page suicide note, “it would have been but natural for the author - 66 - WP No.13059 of 2019 C/W WP No.27468 OF2019to set out the details”. The High Court has evidently travelled far beyond the limits of its inherent power under Section 482 CrPC since instead of determining whether on a perusal of the complaint, a prima facie case is made out, it has analysed the sufficiency of the evidence with reference to the suicide note and has commented upon and made strong observations on the suicide note itself. Paras 32,33,34 and 39 of the order of the High Court are extracted below: “32. In paragraph no.21, a bald statement is made stating that because he is aware of all the above transaction, he was given a death threat. In the next sentence, he states that he has been psychologically/emotionally trouble and hence, he is consuming poison and that the petitioner and his driver alone are responsible. For a person, who has detailed 20 transactions, it can be prudently expected of such a person to give details of the threat.
33. In the next unnumbered paragraph, a totally different story/note is set out as a reason for the petitioner threatening the deceased. In the unnumbered paragraph, he states that there was shortage in the cash to the tune of Rs.8 lakhs and that the petitioner suspected him as being responsible for the same and hence, threatened him that if the deceased did not repay said Rs.8 lakhs, he would have the deceased killed at the hands of rowdies. Thereafter, in the next sentence he states that in view of the same, he has decided to consume poison and that the petitioner and his driver are responsible for the same.
34. In paragraph no.20, the deceased holds the petitioner responsible for withholding the salary for the last three months. The other paragraphs including paragraph no.20 detail the properties said to have - 67 - WP No.13059 of 2019 C/W WP No.27468 OF2019been amassed by the petitioner and other illegal transactions. After having perused and scrutinized the death note, a query was put to the learned High Court Government Pleader and the counsel appearing on behalf of 2nd respondent as to whether the investigation has thrown up any material that corroborates any of the allegations set-out in the death note. The learned High Court Government Pleader would fairly submit that they have not been able unearth any material to corroborate any of the allegations.
39. As discussed above, the death note contains no incriminating statement or material except for a bald and vague statement but that the accused had threatened him. Even the complaint does not disclose any details of the alleged threat nor does the complaint state that the deceased had on multiple occasions complained of having received threats from accused. Even the allegation of the demand for repayment of Rs.8 lakhs rings hollow as neither the prosecution nor the de-facto complainant have been able to place an iota of material that the deceased was or had in fact been in possession of huge sum of money.” Further, the observation of the High Court that there is no material to corroborate the allegations made in the suicide note is erroneous since it is not a consideration for the High Court while exercising its power under Section 482 of the CrPC, particularly in view of the fact that the trial has not begun and the Single Judge had stayed the investigation in the criminal complaint. 5.29. Based on the above decisions he submits that the above petition is required to be dismissed - 68 - WP No.13059 of 2019 C/W WP No.27468 OF2019and investigation is required to be carried out into the allegations made by the complainant.
6. Heard Sri.Sandesh Chouta, learned counsel for the petitioners and Sri.Ravikumar, respondent-party in person. Perused papers.
7. On the basis of the submission made, the points that would arise for determination of this Court are as under:
1. When allegations are made as regards offences under the POA Act, whether the trial Court could refer the matter for investigation to the Asst. Commissioner of Police instead of Station House Officer?.
2. Whether the Association would be entitled to disconnect electricity supply in the event of non-payment of charges towards common amenities and/or maintenance charges?.
3. Whether merely because the apartments have been developed by BDA, could the apartments be not subject to the provisions of Karnataka Apartment Ownership Act, 1972?. - 69 - WP No.13059 of 2019 C/W WP No.27468 OF20194. Whether on the basis of the complaint it could be said that any offences punishable under Section 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va), 3(2)(va), 4 and 4(2)(b) of the POA Act have been made out?.
5. Whether the complaint filed is in compliance with the decision of the Hon’ble Apex Court in Priyanka Srivastava v. State of U.P., [(2015) 6 SCC287?.
6. Whether the order of the learned Magistrate referring the matter for investigation is required to be interfered with?.
7. Whether this Court ought to exercise powers under Section 482 of Cr.P.C and quash the complaint or investigation is required?.
8. What order?.
8. I answer the above points as under.
9. ANSWER TO POINT NO.1: When allegations are made as regards offences under the POA Act, whether the trial Court could refer the matter for investigation to the Asst. Commissioner of Police instead of Station House Officer?. 8.1. Section 156(3) of Cr.P.C. reads as under:
156. Police officer' s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any - 70 - WP No.13059 of 2019 C/W WP No.27468 OF2019cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned. 8.2. When a private complaint is filed under Section 200 of Cr.P.C., if the Magistrate were of the opinion that investigation is required would refer the same under Section 156(3) OF Cr.P.C. for investigation to the Station House Officer. Section 156(3) does not make a distinction between the nature of offence and/or who the investigating officer ought to be. However, the POA Rules make a specific departure and/or provision for investigation inasmuch as it is a police officer not below the rank of Deputy Superintendent of Police who can investigate into any offence under POA - 71 - WP No.13059 of 2019 C/W WP No.27468 OF2019Act which is as provided under Rule 7 of the POA Rules. The said Rule 7 of POA Rules is reproduced hereunder for easy reference:
7. Investigating Officer. (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/ Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it alongwith right lines within the shortest possible time. 1[(2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority, submit the report to the Superintendent of Police, who in turn shall immediately forward the report to the Director-General of Police or Commissioner of Police of the State Government, and the officer-in charge of the concerned police station shall file the charge-sheet in the Special Court or the Exclusive Special Court within a period of sixty days (the period is inclusive of investigation and filing of charge-sheet). (2A) The delay, if any, in investigation or filing of charge-sheet in accordance with sub-rule (2) shall be explained in writing by the investigating officer.]. 2[(3) The Secretary, Home Department and the Secretary, Scheduled Castes and Scheduled Tribes Development Department (the name of the Department may vary from State to State) of the State Government or Union territory Administration, Director of Prosecution, the officer in-charge of Prosecution and the Director-General of Police or the Commissioner of Police in-charge of the concerned State or Union territory shall review - 72 - WP No.13059 of 2019 C/W WP No.27468 OF2019by the end of every quarter the position of all investigations done by the investigating officer.]. 8.3. It is relying upon the said Rule 7 that Sri.Ravikumar, the complainant-party in person would contend that the reference of the matter for investigation to the Assistant Commissioner of Police is proper and correct and that the contention of Sri.Sandesh Chouta, learned Senior counsel for the petitioner that the matter ought to be referred only to the Station House Officer cannot be sustained. 8.4. Rule 5 of the POA Rules relates to filing of the complaint and the same reads as under:
5. Information to Police Officer in-charge of a Police Station. (1) Ever information relating to the commission of an offence under the Act, if given orally to an officer incharge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station.-. 73 - WP No.13059 of 2019 C/W WP No.27468 OF2019(2) A copy of the information as so recorded under sub-rule (1) above shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in-charge of a police station to record the information referred to in-sub- rule (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who after investigation either by himself or by a police officer not below the rank of Deputy Superintendent of Police, shall make an order in writing to the officer in-charge of the concerned police station to enter the substance of that information to be entered in the book to be maintained by that police station. 8.5. A perusal of the said Rule would indicate that information relating to commission of any offence under the POA Act would have to be filed with the jurisdictional police station and the officer in-charge of police station would have to reduce the same into writing, read over the same to the informant, signed by the person giving it and substance thereof to be entered into a book maintained by the police station.-. 74 - WP No.13059 of 2019 C/W WP No.27468 OF20198.6. Thus, in terms of Rule 5, it is the police officer in-charge of the police station who has to register the complaint. Whenever any matter is referred for investigation under Section 156(3) of Cr.P.C, the jurisdictional police to whom the matter is referred to investigation, is required to register a complaint and thereafter take up investigation. Needless to say that without registering a complaint, no investigation can be taken up. It is only thereafter that Rule 7 of POA Rules would come into effect relating to investigation. 8.7. A perusal of Rule 7 which is extracted hereinabove would indicate that the Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implication - 75 - WP No.13059 of 2019 C/W WP No.27468 OF2019of the case and investigate it along with right lines within shortest possible time. Merely because of a person being a Asst. Commissioner of Police would not make him the investigating officer as regards the particular offence registered under the POA Act, the Investigating Officer would have to be appointed by the State Government/Director General of Police/Superintendent of Police. Thus, I am of the considered opinion that when an offence is referred for investigation, the reference is required to be made in terms of Section 156(3) of Cr.P.C. to the jurisdictional police station and in terms of Rule 5 of POA Rules, it is the police officer incharge of police station who has to register the complaint/FIR and thereafter it is for the State Government/Director General of - 76 - WP No.13059 of 2019 C/W WP No.27468 OF2019Police/Superintendent of Police to appoint an investigation officer. 8.8. This is the purport of the decisions relied upon by Sri.Sandesh Chouta, learned Senior counsel for the petitioner in CBI Vs. State of Rajasthan’s case (supra). 8.9. Thus, I answer point No.1 by holding that when allegations are made as regards offences under the POA Act, the trial Court would have to refer the matter for investigation to the jurisdiction police station where the officer in-charge would reduce it into writing and register a complaint and thereafter for the purpose of investigation, investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police. The Magistrate cannot designate the investigating - 77 - WP No.13059 of 2019 C/W WP No.27468 OF2019officer merely on the post held by such person. The qualification of such investigating officer not being below the rank of Deputy Superintendent of Police would not mean that the Asst. Commissioner of Police of that particular area would automatically become the investigating officer. Past experience, sense of ability and justice to perceive the implication are also relevant factors to be considered while appointing a investigating officer.
9. ANSWER TO POINT NO.2:Whether the Association would be entitled to disconnect electricity supply in the event of non-payment of charges towards common amenities and/or maintenance charges?. 9.1. The apartment complex viz., Kailash Apartment has been subjected to the provisions of the KAOA. This Court in CRP No.96/2021 in (Shantharam Prabhu Vs. Mr K Dayanand Rai) has held that once Deed of - 78 - WP No.13059 of 2019 C/W WP No.27468 OF2019declaration and Deed of Apartment has been filed before the concerned authority and the apartment complex is subjected to KAOA, it is the KAOA which would be applicable to said apartment complex. This court has also held that all bye-laws and/or Rules and regulations as contained in the Deed of Declaration or any other document would be binding on all the apartment owners. 9.2. Sri Ravi Kumar by relying on several decisions which have been extracted hereinabove, Sri.Ravikumar, party-in-person has sought to contend that electricity is a natural right, human right and such electricity cannot be disconnected. 9.3. A reading of all decisions relied upon by him do not indicate that the same is an absolute right. For the electricity board and/or - 79 - WP No.13059 of 2019 C/W WP No.27468 OF2019distribution company to supply electricity, necessary payment would have to be made. It is not that electricity is available free of cost to everyone. Thus for the respondent- complainant to claim electricity as a human right, it is of course required for the respondent-complainant to adhere to the payments schedule and make necessary payments. The complainant cannot claim electricity as a human right without making due payments of amounts. 9.4. Sri.Ravikumar, party-in-person who is also an advocate by profession has on several occasions during the course of argument made a submission that he is only liable to make payment of electricity charges to his apartment and not as regards the common areas and amenities. Such an assertion being - 80 - WP No.13059 of 2019 C/W WP No.27468 OF2019made by him is contrary to law, apart from being dishonest. 9.5. Admittedly neither he nor his wife has not been making payment of common maintenance charges which is his duty and obligation to do so. If at all he or his wife have any doubts about the amounts payable, he can always seek for clarification from the Managing Committee of Association which is running the maintenance activities. The Management Committee being elected and/or nominated by the community as a whole, it is for each and every member of the community/owner of apartment to abide by the rules and regulations framed in relation thereto and any deviation thereof would incur the penal consequences as envisaged under the Deed of Declaration. The Deed of Declaration providing for the Association to - 81 - WP No.13059 of 2019 C/W WP No.27468 OF2019disconnect electricity supply in the event of non payment of maintenance charges towards common amenities and maintenance charges. 9.6. An apartment complex is a community of people. The said complex contains private areas, viz., apartment belonging to a particular person or family and also contains several common areas like common lift, common staircases, footpaths, generator, Water treatment plant, Garden, Landscaping, Club-house, Community centre, etc., etc. For the apartment complex to be maintained properly, it would be required for all apartment owners to contribute to the upkeep of the apartment complex which includes common areas and it is in that back ground that the Deed of Declaration relevant to the petitioner and respondent-complainant which indicates that the respondent-complainant is - 82 - WP No.13059 of 2019 C/W WP No.27468 OF2019required to make payment of certain amounts towards maintenance of common areas and amenities. 9.7. The amenities could include Swimming Pool, Club House, Play Area, Water Treatment Plants, Rain Water Harvesting and the like. For a person to access his or her apartment, such person is required to essentially go through the common passages, common lifts, common staircase, etc. By a person using the common lift, electricity would be consuming, if a person were to use common passage in the night time, the same would have to be well lit, the other amenities like Water Treatment Plants, Rain Water Harvesting also consume electricity. These are all assets which are shared by community of owners in the apartment complex.-. 83 - WP No.13059 of 2019 C/W WP No.27468 OF20199.8. Thus not only would an apartment owner be required to make payment of the electricity charges for the apartment but also would be liable to make payment of all expenses incurred towards maintenance of common areas and amenities including electricity charges that may be required to be borne in relation thereto, the salaries to staff engaged to maintain the common passages, garden, etc, the salaries to staff engaged to operate Water Treatment Plant, Rain Water Harvesting, etc. 9.9. In the event of said payments not being made, the community as a whole would suffer, on account of maintenance of these common amenities and/or areas suffering. Thus, it is for this reason that Deed of Declaration contemplates disconnection of electricity power or disqualification of a - 84 - WP No.13059 of 2019 C/W WP No.27468 OF2019member of the community in the event of maintenance charges not being paid. 9.10. I answer Point No.2 by holding that Management Committee of the Association would be entitled to disconnect electricity supply to an apartment in the event of non- payment of charges towards common amenities by that Apartment owner i.e., that apartment owner becoming a defaulter.
10. ANSWER TO POINT NO.3 : Whether merely because the apartments have been developed by BDA, could the apartments be not subject to the provisions of Karnataka Apartment Ownership Act, 1972?. 10.1. As aforesaid in CRP No.96/2021 in (Shantharam Prabhu Vs. Mr K Dayanand) this court has held that any apartment complex could be subjected to the provisions of the KAOA by executing a Deed of Declaration and submitting the same to the - 85 - WP No.13059 of 2019 C/W WP No.27468 OF2019concerned/jurisdictional officer. There is no restriction under the KAOA as claimed by Sri.Ravikumar-complainant as regards an apartment complex being developed by the BDA, not being capable of being subjected to the provisions of KAOA, the KAOA regulates the inter-se rights and obligation on part of the apartment owners and has nothing to do with the developer. 10.2. Once the development is completed, it is for the owners of the apartment who are living in the apartment complex as a community to regulate their affairs and in this regard they could subject the apartment complex to KAOA. All the owners including the complainant’s wife (who is the actual owner, the complainant not being the owner) having subjected themselves to the KAOA and subjected the apartment complex to KAOA, - 86 - WP No.13059 of 2019 C/W WP No.27468 OF2019whether the developer is BDA or otherwise would have no bearing. The Development being sold it is for the apartment owners to decide as to by what rules they would be governed. KAOA is an enactment specifically enacted to govern the inter se relation between the apartment owners. In the present case, the apartment owners have subjected themselves to KAOA. It is therefore for all apartment owners to abide by the Deed of Declaration and Byelaws once made applicable to the apartment complex. A lone apartment owner or a group of apartment owners not contributing the majority cannot contend otherwise without suitable amendment having been made to the Deed of Declaration and/or Byelaws. 10.3. Sri.Ravikumar, party-in-person has repeatedly submitted that BDA being a government - 87 - WP No.13059 of 2019 C/W WP No.27468 OF2019organization, the apartment is in the nature of government and/or the State and as such it is the State or the BDA who can take action, if any, against Sri.Ravikumar and not the Association or the Managing Committee. Such a submission on part of a lay person also would not be acceptable. In this case Sri.Ravikumar claims to be an advocate by profession but has chosen to appear in the matter as party-in-person has sought to mislead this Court and to make false submission, he has also tried to brow-beat the Association. This conduct on part of the complainant is deprecated. 10.4. I answer point No.3 by holding that even though the apartments may be developed by the BDA, the apartment owners can subject the apartment and the apartment complex to the KAOA. For the said purpose, it does not matter - 88 - WP No.13059 of 2019 C/W WP No.27468 OF2019as to who has developed the apartment complex.
11. ANSWER TO POINT NO.4: Whether on the basis of the complaint it could be said that any offences punishable under Section 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va), 3(2)(va), 4 and 4(2)(b) of the POA Act have been made out?. 11.1. Initially when a complaint was made, reference was made to Section 3(1)(x) of POA Act which is reproduced hereunder for easy reference: “3(1)(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
11.2. Subsequently, a supplementary complaint came to be filed wherein allegations were made that offences under Section 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va), 4 and 4(2)(b) of POA Act have been committed. 11.2.1. Section 3(1)(g) of POA Act is reproduced hereunder for easy reference: - 89 - WP No.13059 of 2019 C/W WP No.27468 OF2019“3(1) xxx (g) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom. Explanation.--For the purposes of clause (f) and this clause, the expression "wrongfully" includes- (A) against the person's will; (B) without the person's consent; (C) with the person's consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested in fear of death or of hurt; or (D) fabricating records of such land; 11.2.2. The offence under Section 3(1)(g) can only be committed if a member belonging to SC/ST is wrongfully dispossessed from his land or premises or interference with the enjoyment of his rights. The contention of Sri.Ravi Kumar is that disconnection of electricity is interference - 90 - WP No.13059 of 2019 C/W WP No.27468 OF2019with the enjoyment of his rights and therefore, offence under Section 3(1)(g) is committed. 11.2.3. The contention of Sri.Ravikumar- complainant is that it is on account of him being a member of the schedule caste, his enjoyment of the right over any land, premises or water is interfered with and that he has been insulted and/or humiliated in public view because of him being a member of scheduled caste. 11.2.4. A reading of the complaint would indicate that it is on account of maintenance charges not having been paid the electricity connection has been disconnected. It is this disconnection of electricity which is sought to be termed as interference with the enjoyment of the - 91 - WP No.13059 of 2019 C/W WP No.27468 OF2019property. Section 3(1)(g) begins with the words “wrongfully”, thus for a person to interfere with the enjoyment of any land, premises or water, such interference has to be wrongful in order to become an offence under Section 3(1)(g) of the POA Act. In the present case, as held above, it is on account of non-payment of maintenance charges towards common areas after giving several opportunities, the Management committee of the Association was required to disconnect the electricity supply, the same in my considered opinion cannot be said to be wrongful attracting the offence under Section 3(1)(g) of the POA Act, more so when the complainant himself has admitted the dues and agreed to make payment of the same if given time.-. 92 - WP No.13059 of 2019 C/W WP No.27468 OF201911.2.5. Having come to a conclusion that the complainant was required to make payment of the dues towards common amenity charges and that disconnection of electricity due to non payment is permitted under the Deed of Declaration, I am of the considered opinion that disconnection of electricity cannot be said to be wrongful interference with the enjoyment of the rights of the complainant. Hence, no offence under Section 3(1)(g) is made out. 11.2.6. Section 3(1)(p) of POA Act is reproduced hereunder for easy reference: “3(1)(p) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe; 11.2.7. For the offence under Section 3(1)(p) can only said to have been occurred if a false, - 93 - WP No.13059 of 2019 C/W WP No.27468 OF2019malicious or vexatious suit or other legal proceedings is initiated against a member of the Scheduled Caste or Scheduled Tribe. In the present case, no suit or criminal proceedings have been initiated let alone false, malicious or vexatious. Hence, the question of any offence under Section 3 (1)(p) of POA Act being committed does not arise. 11.2.8. Section 3(1)(q) of POA Act is reproduced hereunder for easy reference: (q) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe; 11.2.9. Section 3(1)(q) relates to wrongful information being given to any public servant in order to enable him to use his lawful power to injure or cause annoyance to a member of a Scheduled caste or - 94 - WP No.13059 of 2019 C/W WP No.27468 OF2019scheduled tribe. In the present case, the information which has been given by the Association or its members to the officers of the electricity department is as regards the powers and rights vested with the Association on non payment of electricity dues. Therefore, same cannot be said to be false or frivolous. Hence, no offence under Section 3(1)(q) is made out. 11.2.10. Section 3(1)(u) of POA Act is reproduced hereunder for easy reference:
3. 1)(u) by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes; 11.2.11. An offence under Section 3(1)(u) could be made out if a person were to promote feelings of enmity, hatred or ill will against members of the Scheduled Caste or the - 95 - WP No.13059 of 2019 C/W WP No.27468 OF2019Scheduled Tribe. The only person involved in this case is the complainant. There are no other members of Scheduled Caste or the Scheduled Tribe involved in the present matter. There are no particular allegations in the complaint which would make out such an offence. There is no usage of the caste of the complainant so as to promote any ill will against him in the capacity of him being a member of the schedule caste. The only allegation is that he has been called hooligan, uncivilized, filthy, unruly person, the same is not with reference to his caste, therefore no offence under Section 3(1)(u) is made out. 11.2.12. Section 3(1)(z) of POA Act is reproduced hereunder for easy reference: - 96 - WP No.13059 of 2019 C/W WP No.27468 OF2019(z) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence: Provided that nothing contained in this clause shall apply to any action taken in discharge of a public duty; 11.2.13. An offence under Section 3(1)(z) would apply if a member of a scheduled caste or scheduled tribe is forced to leave his house, village or place of residence. Admittedly, in the present case, the complainant continues to reside in his flat and he has not left his place of residence, as such no offence under Section 3(1)(z) is made out. 11.2.14. Section 3(1)(zc) of POA Act is reproduced hereunder for easy reference: (zc) imposes or threatens a social or economic boycott of any person or a family or a group belonging to a Scheduled Caste or a Scheduled Tribe, - 97 - WP No.13059 of 2019 C/W WP No.27468 OF201911.2.15. An offence under Section 3(1)(zc) can be made out if social or economic boycott of a person or family or a group belonging to scheduled caste or scheduled tribe. There is no such allegation which has been made in the complaint. The complainant has admittedly participated in the meetings of the association , as such no offence can be made out under the said provision. 11.2.16. Section 3(2)(va) of POA Act is reproduced hereunder for easy reference:
3. 2)(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine; 11.2.17. A reading of the above makes it clear that an offence under Section 3(2)(va) is made out commits any offence specified in the - 98 - WP No.13059 of 2019 C/W WP No.27468 OF2019schedule knowing that the such person is a member of Scheduled Caste or Scheduled Tribe. 11.2.18. In the present case, no offence specified in the schedule has….. been committed, let alone knowing that the complainant belongs to Scheduled Caste. Hence, no offence under Section 3(2)(va) is made out. 11.3. The provision of POA Act have been brought out to remedy injustice that has been caused to members belonging to Scheduled Caste and Schedule Tribe Community and to see to it that they are not further discriminated and that offences as contained in the said Act are not committed against the members of the Schedule Caste and Schedule Tribe Community. This is a beneficial legislation which has been - 99 - WP No.13059 of 2019 C/W WP No.27468 OF2019brought about for the protection of persons belonging to the Schedule Caste and Schedule Tribe who may be discriminated, ostracized and/or offences committed against them. 11.4. The said provision being salutary, the respondent-complainant merely because he belongs to Scheduled Caste community has sought to abuse and misuse the provisions of the said Act which is not the purpose of enactment. It would be further required to be observed that when such beneficial legislations are abused, then the persons who are rightfully entitled to the benefits thereof, some times also would get deprived of such benefits. The complainant has sought to make use of beneficial legislation viz., POA Act to not make payment of due amounts required to be made by him which is deprecated.-. 100 - WP No.13059 of 2019 C/W WP No.27468 OF201912. Thus exfacie in my considered opinion that no offence under Section 3(1)(g), 3(1)(p), 3(1)(q), 3(1)(u), 3(1)(z), 3(1)(zc), 3(2)(va), 3(2)(va), 4 and 4(2)(b) of the POA Act have been made out.
13. ANSWER TO POINT No.5: Whether the complaint filed is in compliance with the decision of the Hon’ble Apex Court in Priyanka Srivastava v. State of U.P., [(2015) 6 SCC287?. 13.1. The contention of Sri.Ravikumar that there is verifying affidavit enclosed to the complaint, the same is in compliance with the requirement of Priyanka Srivatsava’s case (supra). Relevant portion of the above decision has been reproduced hereinabove. A perusal of the entire complaint does not indicate any reference to any complaint made by the petitioner and/or his wife to the jurisdictional police. It is only after the said issue was pointed out, that the petitioner has produced certain letters to contend that he had approached the jurisdictional police station for - 101 - WP No.13059 of 2019 C/W WP No.27468 OF2019registration of a complaint and that he had filed complaint with BESCOM authorities. The complaints to the BESCOM authorities are irrelevant insofar as the decision of Priyanka Srivatsava’s case is concerned. Complaint in PCR No.68/2018 being completely silent as regards the efforts made by the petitioner to file a complaint, denial of acceptance thereof by the Station House Officer, the escalation by the complainant to superior officers and production of details thereto, along with affidavit in support thereof would in my considered opinion fall within the mischief of the decision of Priyanka Srivatsava’s case. As such, I am of the considered opinion that the complaint as filed falls foul of the decision Priyanka Srivatsava’s case and on that ground itself, the order of cognizance is required to be quashed.-. 102 - WP No.13059 of 2019 C/W WP No.27468 OF201914. ANSWER TO POINT NO.6: Whether the order of the learned Magistrate referring the matter for investigation is required to be interfered with?. AND ANSWER TO POINT NO.7: Whether this Court ought to exercise powers under Section 482 of Cr.P.C and quash the complaint or investigation is required?. 14.1. The contention of Sri.Ravikumar, party-in- person by relying on the decision in Neeharika’s case (supra) is that this Court ought not to intercede with the order of investigation and this court ought to permit investigation to go on. 14.2. The decision of the Hon’ble Apex Court in Neeharika’s case (supra) though has stated that normally this Court should not come in the way of investigation, but has also has observed that in appropriate cases this Court ought to exercise its jurisdiction under Section 482 of Cr.P.C. to quash any complaint which may be an abuse of process of Court.-. 103 - WP No.13059 of 2019 C/W WP No.27468 OF201914.3. The Magistrate in the order of cognizance and direction for investigation has held as under; “Complainant present. I head on side of complainant and perused the complaint and documents and also perused the application filed for restoration of power supply. Register the case This case is referred under section 156(3) CrPC to ACP Kengeri Sub Division for investigation. I perused the interlocutory application for restoration of power supply. Complainant submitted from past________ day he is living in dark without electricity; drinking water. His wife pursuing Ph.D. could not study due to disconnection of electricity. Hence it is hereby directed to concerned ACP to see that electricity connection is restored to the house of Complainant will next date. Issue intimation to the IO accordingly.
14.4. A perusal of the above, the order of reference does not indicate any application of mind made by the Magistrate as regards the offences alleged against the petitioners. The order passed by the Magistrate is completely laconic and not in accordance with law of the dicta laid down by this Court in various matters, as also that by the Hon’ble Apex Court. It is but - 104 - WP No.13059 of 2019 C/W WP No.27468 OF2019required of the Magistrate while ordering investigation to have applied his mind which application is required to be shown from the order passed by him/her. The order does not even refer to the provision with which the allegations have been made, there is no reference to how an offence has been committed, more so when there are allegations made as regards a provision which did not even exist as on that date. If there is no application of mind in setting the criminal law in motion, such an order is required to be set-aside. The order passed by the Magistrate in the present matter qualifies for being set-aside. 14.5. As already I have come to a conclusion that complaint is an abuse of process of court and filed with sole intention of availing of all benefits and common amenities etc., without making payment for the same, a reading of the entire complaint as a whole does not exfacie - 105 - WP No.13059 of 2019 C/W WP No.27468 OF2019indicate any offence requiring investigation. The complaint being an abuse of process of Court is required to be quashed and the order of cognizance passed by the Magistrate is required to be set-aside. 14.6. In view of the above finding, the complaint itself being an abuse of process of court, there would be no purpose served by further investigation and subjecting the petitioners to such investigation on the basis of false complaint.
15. ANSWER TO POINT NO.8: What Order?. 15.1. In view of the answers above, I pass the following;
ORDERi. The order dated 27.12.2018 in PCR No.68/2018 for investigation under Section 156(3) of Cr.P.C. is hereby quashed. ii. The order dated 29.12.2018 referring the supplementary complaint for investigation - 106 - WP No.13059 of 2019 C/W WP No.27468 OF2019under Section 156(3) of Cr.P.C. is hereby quashed. Consequently, the FIR in Cr. No.82/2019 registered by the Kengeri Police Station, Bangalore is quashed. iii. Private complaint and PCR No.68/2018 is hereby quashed. iv. W.P. Nos.13059/2019 and 27468/2019 are allowed. v. Considering the nature of the matter, I am of the considered opinion that costs would also have to be imposed on the respondent- complainant/party-in-person. As such costs is quantified at Rs.25,000/-, payable to the Association of Apartment Owners within a period of four weeks from the date of receipt of a copy of this order. vi. All pending IA’s are consigned to file. Sd/- JUDGE ln List No.:
1. Sl No.:
6.