1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2ND DAY OF AUGUST, 2021

R
BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

CRIMINAL PETITION NO.4133/2012

C/W.
CRIMINAL PETITION NO.4134/2012
CRIMINAL PETITION NO.4135/2012

IN CRIMINAL PETITION NO.4133/2012:

BETWEEN:

SRI PURUSHOTHAMANANDANATHA SWAMIJI

AGED ABOUT 64 YEARS
SRI ADICHUNCHANAGIRI
MAHASAMSTHANA MUTT
BRANCH MUTT, MANDYA DISTRICT. … PETITIONER

[BY SRI G.KRISHNA MURTHY, SENIOR COUNSEL FOR

SMT.BHAVANA G.K., ADVOCATE (THROUGH V.C)]
AND:

1. SRI C.LAKSHMINARAYANA
S/O LATE CHOWDAPPA
AGED ABOUT 45 YEARS
R/O HULIMAVU VILLAGE
BANNERGHATTA ROAD
BENGALURU-560076

2. THE STATE
BY LOKAYUKTA POLICE
MULTI-STORIED BUILDING
DR.B.R.AMBEDKAR ROAD
BENGALURU-560001 … RESPONDENTS

[BY SRI M.R.VIJAY, ADVOCATE FOR R1;

SRI VENKATESH S. ARABATTI, SPECIAL PUBLIC
PROSECUTOR FOR R2]
 2

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE
ENTIRE PROCEEDINGS IN PCR NO.30/2012 AND
CONSEQUENTLY QUASH FIR IN CRIME NO.57/2012 FILED BY
THE 2ND RESPONDENT IN PCR NO.30/2012 ON THE FILE OF THE
XXIII ADDITIONAL CITY CIVIL AND SPECIAL JUDGE,
PREVENTION OF CORRUPTION ACT, BENGALURU.

IN CRIMINAL PETITION NO.4134/2012:

BETWEEN:

SRI PRAKASHNATHA SWAMIJI

SRI ADICHUNCHANAGIRI
MAHASAMSTANA MUTT
CA.17, 1ST ‘B’ MAIN, VIJAYANAGAR
BENGALURU-560 040. … PETITIONER

[BY SRI G.KRISHNA MURTHY, SENIOR COUNSEL FOR

SMT.BHAVANA G.K., ADVOCATE (THROUGH V.C)]
AND:

1. SRI C.LAKSHMINARAYANA
S/O LATE CHOWDAPPA
AGED ABOUT 45 YEARS
R/O HULIMAVU VILLAGE
BANNERGHATTA ROAD
BENGALURU-560076

2. THE STATE
BY LOKAYUKTA POLICE
MULTI-STORIED BUILDING
DR.B.R.AMBEDKAR ROAD
BENGALURU-560001 … RESPONDENTS

[BY SRI M.R.VIJAY, ADVOCATE FOR R1;

SRI B.S.PRASAD, SPECIAL PUBLIC PROSECUTOR FOR R2
(THROUGH V.C.)]

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE
ENTIRE PROCEEDINGS IN PCR NO.30/2012 AND
 3

CONSEQUENTLY QUASH FIR IN CRIME NO.57/2012 FILED BY

THE 2ND RESPONDENT IN PCR NO.30/2012 ON THE FILE OF THE
XXIII ADDITIONAL CITY CIVIL AND SPECIAL JUDGE,
PREVENTION OF CORRUPTION ACT, BENGALURU.

IN CRIMINAL PETITION NO.4135/2012:

BETWEEN:

DR.SUNIL BABU
AGED ABOUT 49 YEARS
S/O MALLESHWARA
NO.90, NEELA NIVAS
MAGADI CHORD ROAD
VIJAYANAGAR, BENGALURU. … PETITIONER

[BY SRI G.KRISHNA MURTHY, SENIOR COUNSEL FOR

SMT.BHAVANA G.K., ADVOCATE (THROUGH V.C)]
AND:

1. SRI C.LAKSHMINARAYANA
S/O LATE CHOWDAPPA
AGED ABOUT 45 YEARS
R/O HULIMAVU VILLAGE
BANNERGHATTA ROAD
BENGALURU-560076

2. THE STATE BY LOKAYUKTA POLICE

MULTI-STORIED BUILDING
DR.B.R.AMBEDKAR ROAD
BENGALURU-560001 … RESPONDENTS

[BY SRI M.R.VIJAY, ADVOCATE FOR R1;

SRI B.S.PRASAD, SPECIAL PUBLIC PROSECUTOR FOR R2]

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE
ENTIRE PROCEEDINGS IN PCR NO.30/2012 AND
CONSEQUENTLY QUASH FIR IN CRIME NO.57/2012 FILED BY
THE 2ND RESPONDENT IN PCR NO.30/2012 ON THE FILE OF THE
XXIII ADDITIONAL CITY CIVIL AND SPECIAL JUDGE,
PREVENTION OF CORRUPTION ACT, BENGALURU.
 4

THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 02.07.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

ORDER

These petitions are filed by accused Nos.2 to 4 in PCR

No.30/2012 praying this Court to quash the complaint and the

proceedings in PCR No.30/2012 and consequently quash the FIR

in Crime No.57/2012 filed by the second

respondent/complainant on the file of XXIII Additional City Civil

@ Special Judge for Prevention of Corruption Act, Bengaluru.

2. The factual matrix of the case is that the petitioner in

Crl.P.No.4133/2012 took Sanyasa Deeksha during the year 1971

and has been managing branch mutt of Shree.

Adhichunchanagiri Mahasamsthana Mutt at Mandya. He has

been assisting the Peetadhipathi in the matters relating to

religious activities. The Swamiji residing at Adhichunchanagiri

Mutt taking care of the mutt affairs. The other petitioner in

Crl.P.No.4134/2012 is residing at Mutt and helping Peetadhipathi

and the petitioner in Crl.P.No.4135/2012 is a resident of

Vijayanagar, Bengaluru and the devotee of the Mutt. These

petitioners have nothing to do with the management or

 5

administration of the trust properties and no specific allegations

have been made against them in the complaint and only general

and casual remarks have been made against them in the

complaint tagging their names in the complaint along with

accused No.1.

3. The petitioner in Crl.P.No.4134/2012 is the Managing

Trustee of Shri. BGS Education Trust, Bengaluru. He being the

disciple of Sri. Sri. Sri. Balagangadhranatha Swamji, is assisting

the Peethadhipathi in the matters relating to establishing,

maintenance and administration of educational institutions and

other religious activities.

4. The petitioner in Crl.P.No.4135/2012 is a Doctor,

who has been appointed as a trustee of BGS Health & Education

Trust on 18.01.2011 in view of his vast knowledge and

experience in the field of health and medicine. He was also not

involved in any of the transaction alleged by the complainant

except health and medicine field.

5. The first respondent/complainant is an Ex-Councilor

of Hulimavu Village, Bannerghatta road for Bommanahalli City

 6

Municipal Council. He has filed a complaint before the XXIII

Additional City Civil @ Special Judge for Prevention of Corruption

Act, Bengaluru, against the Peethadhipathi and also against the

petitioners including other 23 public servants found in different

posts. The specific allegation made against them in the

complaint that the complainant being Ex-Councilor, a social

worker and a responsible citizen and he is concerned with the

rise of corruption in the State. It is alleged that the public

servants in the State are least bothered about the law of the

land. But he claims that he deeply interested to uphold the rule

of law in society at large. It is also claimed that he is one of the

trustees of Sri Ramalingeshwara Swamy Temple Jeernodhaara

Trust. Shri. Ramalingeshwara Swamy Temple is situated at

Hulimavu village from an immemorial period having devotees

throughout the State.

6. It is his case that the Government of Karnataka has

granted 15 acres and 31 guntas of land in Sy.No.89 and re-

numbered as Sy.No.92 of Hulimavu Village, Begur Hobli,

Bengaluru South Taluk under two grant orders bearing No.LND-

SR(S)13/86-87 dated 09.03.1981 and No.LND 3(S)CR246/84-85

 7

dated 28.05.1985 in favour of Sri Ramalingeshwara Swamy

Temple Trust on certain terms and conditions.

7. The Government of Karnataka has also granted an

additional land of 10 guntas in Sy.No.63, the same is re-

numbered as Re-Sy.No.98 of Hulimavu village vide No.LND(S)

CR-20/88-89 dated 07.09.1990. It is alleged in the complaint

that without taking any confidence of the devotees and local

residents in and around the temple, against the interest of the

Temple with Adichunchanagiri Mahasamsthana headed by Sri Sri

Bala Gangadharanatha Swamiji, accused No.1 had created a

document alleged to be entrusted the trust property without

there being any sanctity in the eye of law or proceedings of the

general body to accept such resolution. The allegation against

other accused, particularly, accused No.5 allowed accused Nos.1

to 4 to get transfer the above stated land by creating the

documents.

8. It is also an allegation that one Late Mariyappa

Swamiji who proclaimed to be the President of Sri

Ramalingeshwara Swamy Temple Trust and created the records

in collusion with accused Nos.1 to 4 and 5, transferring the

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above granted land to accused No.1. The Revenue authorities

had mutated the property based on the said fabricated

documents. The complainant also would contend in the

complaint that there is no Government sanction for transfer of

the said land and transfer order dated 02.04.1997 in favour of

accused No.1 is a bogus and there is no such order or record.

9. It is alleged that accused No.1 knowing fully well

that the land granted belonging to ‘Sri Ramalingeshwara Swamy

Temple Trust’ sold the granted land and the concerned officials

also acted on the behest of the first accused. The specific

allegation is that it is a fraudulent act and obtained an order to

run the School, wherein, education is inserted without there

being any such permission granted by the Government while

granting. It is alleged that permission is granted to establish

Jnanakendra and the said permission was given following the

procedure under the Karnataka Land Revenue Act. But now they

are mis-using the said land for the purpose of education and the

very object in granting the land in favour of Sri

Ramalingeshwara Swamy Temple has been deviated and they

have obtained concocted plan in violation of Section 321(1) & (2)

 9

of Karnataka Municipal Corporation Act. The learned Judge after

having considered the averments made in the complaint referred

the matter for investigation under Section 156(3) of Cr.P.C., and

to submit the report.

10. The main contention of the petitioners in all these

petitions is that the nature of involvement of each of the

petitioner have not been disclosed in the complaint and the very

complaint is totally motivated and malafide complaint filed with

the sole objective of sullying the image and reputation of the

petitioner herein and to harass and wreck vengeance against the

petitioner to coerce him into terms. The Trial Court has not

applied its mind to the allegations made in the complaint and as

to whether the complaint discloses offences which require

investigation by the police. In the absence of such a clear

finding by the Trial Court, the Trial Court could not have directed

investigation by the police. The Trial Court wholly erred in not

noticing that a perusal of the very complaint indicates that the

complainant/respondent No.2 herein, falsely claims to be a

trustee and Secretary of Sri Ramalingeshwara Swamy Temple

Trust, though infact he is the trustee of a new trust under the

 10

name and style of Sri Ramalingeshwara Swamy Temple

Jeernodhaara Trust. The complaint further reveals that the

respondent is laying claim on the property in question, even

though he has absolutely no right whatsoever thereto. The mala

fides is writ large on the very face of the complaint. Though the

Trial Court in the course of the lengthy order has not applied its

mind to the various averments except to the verbatim re-

producing the complaint and the statement made by the counsel

for the complainant.

11. The Trial Court wholly erred in not noticing that no

sanction has been obtained for filing the complaint or launching

the prosecution in question. The allegations made in the

complaint regarding the various offences alleged are inseparable

amongst the public servant and others.

12. The Trial Court wholly erred in entertaining the

complaint against the petitioner. It is contended that the

allegation found in the complaint against these petitioners that

they got transferred the granted land in collusion with accused

No.5 vide Government Order No.RD 234/LGB dated 2.4.1997

and there was a typographical mistake in referring the

 11

Government Order No.RD 234 instead of 284 and taking the

advantage of the mistake, the complainant with the mala fide

intention had approached the Trial Court. The transfer made by

Sri Ramalingeshwara Swamy Temple in favour of accused No.1

is after obtaining the sanction from the concerned Government

and the Government after approving only, the same has been

transferred.

13. The learned counsel appearing for the petitioners

would vehemently contend that it is not in dispute that the

property was granted in favour of Sri Ramalingeshwara Swamy

Temple in between 1981 to 1990 to the extent of 16 acres 1

gunta. The Trust was formed in the year 1991. Subsequently,

resolution was passed on 28.10.1995 to transfer the property in

favour of accused No.1. Thereafter, obtained the approval from

the Government and sanction was given by the then Hon'ble

Chief Minister vide Annexure ‘J’. The Government order is in

terms of Annexure ‘H’. The property after transferred to accused

No.1 constructed the School, Mediation Centre, Ayurvedic Centre

and the permission was obtained in terms of Annexure ‘N’ to

establish the School. The complainant made the request for a

seat and the said seat was not given to him and his request was
 12

rejected. Hence, the complainant was having the ill-will against

respondent No.1 formed a Trust on 09.11.2011 terming the

same as Sri Ramalingeshwara Swamy Temple Jeernodhaara

Trust in terms of Annexure ‘Q’. The complaint was given on

21.02.2012 immediately after forming the said alleged trust in

terms of Annexure ‘R’ and reply was given in terms of Annexure

‘S’ and no action was taken. Hence, a complaint was given to

the Corporation and the Corporation has passed an order and

the same was questioned before the KAT. The Complainant has

not produced the Government Order knowing fully well while

filing the private complaint since there was a specific order by

the Government giving the sanction to transfer the property. He

also got amended the complaint deleting the name

‘Jeernodhaara’ since he made the correction in the complaint

stating the said Trust as Sri Ramalingeshwara Swamy Temple

Jeernodhaara Trust earlier. Earlier he claims that he was a

trustee of Sri Ramalingeshwara Swamy Temple Trust, but he

was not the trustee of Sri Ramalingeshwara Temple Trust.

14. Having considered all these aspects into

consideration, it clearly discloses that with the mala fide

 13

intention a complaint is filed and all the procedures have been

followed while transferring the property in favour of accused

No.1. It is nothing but an abuse of process of law invoking the

criminal jurisdiction and none of the allegation constitutes an

offence, which have been narrated in the complaint. Hence, it

requires an interference of this Court.

15. The learned Senior Counsel Sri G. Krishnamurthy for

the petitioners in support of his arguments, he relied upon the

following judgments:

(i) in the case of Maksud Saiyed v. State of Gujarat and

others reported in (2008) 5 SCC 668, wherein, the Apex

Court observed that, where a jurisdiction is exercised on a

compliant petition filed in terms of Section 156(3) or

Section 200 Cr.P.C., the Magistrate is required to apply his

mind and brought to the notice of this Court paragraph

No.13 of the judgment, wherein, the Apex Court held that,

summoning of an accused in a criminal case is a serious

matter. Criminal law cannot be set into motion as a matter

of course. The Magistrate has to carefully scrutinize the

evidence brought on record and the same is observed in

paragraph No.15 of the Judgment.

 14

(ii) in the case of Guruduth Prabhu and others v.

M.S.Krishna Bhat and others reported in 1999 SCC

OnLine Kar 606: 1999 Cri LJ 3909, wherein, the

Division Bench held that, If every complaint filed under

Section 200, Cr.P.C. is referred to the police under Section

156(3) without application of mind about the disclosure of

an offence, there is every likelihood of unscrupulous

complainants in order to harass the alleged accused

named by them in their complaints making bald allegations

just to see that the alleged accused are harassed by the

police who have no other go except to investigate as

ordered by the Magistrate. The Division Bench further

observed in paragraph No.11 that, it is mandatory for the

Magistrate to apply his mind to the allegations made in the

complaint and only in cases which disclose an offence, the

Magistrate gets jurisdiction to order an investigation by the

police.

(iii) in the case of Baijnath Jha v. Sita Ram and another

reported in (2008) 8 SCC 77, wherein, the Apex Court in

paragraph No.8 particularly referring to the judgment in

 15

the case State of Haryana v. Bhajan Lal reported in 1992

SCC (Cri) 426, held that, the background clearly shows

that the proceedings instituted were mala fide, based on

vague assertions and were initiated with mala fide intents

and constitute sheer abuse of process of law. Further

observed that the cases at hand fit in with Category (7) of

Bhajan Lal case.

(iv) in the case of Rukmini Narvekar v. Vijaya Satardekar

and others reported in (2008) 14 SCC 1, wherein, the

Apex Court invoking Section 482 of Cr.P.C., held that the

Court is free to consider material that may be produced on

behalf of the accused to arrive at a decision whether the

charge as framed could be maintained and brought to the

notice of this Court particularly in paragraph No.38 of the

judgment.

16. Shri. B.S.Prasad, learned Special Public Prosecutor

for respondent No.2 in Crl.P.No.4134/2012 and

Crl.P.No.4135/2012 would vehemently contend that the

documents have to be produced before the Court during the trial

and those documents cannot be considered in these

 16

proceedings. The learned Spl.PP also would submit that in

paragraph Nos.16 and 25, a categorical allegation is made in the

complaint that the order is obtained for providing education and

grant is made for otherwise. The learned Spl.PP also would

submit that in terms of Annexure ‘E’, permission was taken

afterwards and there is a violation of condition No.5 to transfer

the property.

17. The learned Spl. PP would submit that the grant is

not made for continuing the religious activities. The officials

have joined with accused Nos.1 to 4 in transferring of the land.

The grant is in favour of Temple and the same is transferred in

favour of Mutt and the same is not permissible.

18. The complaint averments are specific and it attracts

the ingredients of the offences, which have been invoked against

them and whether the ingredients of the offence attract or not, it

is a matter of trial. The trial Judge while referring the matter

under Section 156(3) Cr.P.C., given the reasons and those

reasons are also well-reasoned. The petitioners can produce

these documents before the Investigating Officer during the

course of investigation and the same cannot be looked into at

 17

the stage of referring the matter under Section 156(3) of Cr.P.C.

The complaint discloses several allegations not only against

accused Nos.1 to 4 and also other officials, who have joined with

the hands of accused Nos.1 to 4.

19. Shri. Venkatesh S. Arabatti, learned Special Public

Prosecutor for respondent No.2 in Crl.P.No.4133/2012 would

vehemently contend that the grant was made in between 1981

to 1990. In spite of the grant was made for particular purpose,

the same has been deviated in transferring the land in favour of

the petitioners herein. The State also not taken any action with

regard to the violation of the original grant conditions. Though

they claim that they have established Ayurvedic Centre and it is

clear that they are running educational institution. The

complainant has not filed any objections in these proceedings

and specific allegations are made against the petitioners herein.

The contention is that there is no allegation against the

petitioners, cannot be accepted and the specific allegations are

made that these petitioners are assisting the Peethadhipathi and

they are indulged in transfer of property in favour of accused

No.1.
 18

20. Learned Spl.PP would submit that they have not filed

any objection since the matter is under investigation and the

matter has to be investigated and report is to be filed by the

Investigating Officer.

21. The learned Special Public Prosecutor for respondent

No.2 in support of his arguments, he relied upon the following

judgments:

(i) in the case of State of Haryana v. Bhajan Lal reported

in AIR 1992 SC 604 and referred the instances for

quashing of FIR where the allegations made in the FIR or

complaint, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any

offence or make out a case against the accused; where the

uncontraverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not

disclose the commission of any offence and make out a

case against the accused; and where there is an express

legal bar engrafted in any of the provisions of the Code of

Criminal Procedure or the concerned Act to the institution

and continuance of the proceedings. But this power has to

 19

be exercised in a rare case and with great circumspection.

Learned counsel also brought to the notice of this Court,

para No.109 of the said decision, wherein it is observed

with regard to the note of caution to the effect that the

power of quashing a criminal proceeding should be

exercised very sparingly and with circumspection and that

too in the rarest of rare cases; that the Court will not be

justified in embarking upon an enquiry as to the reliability

or genuineness or otherwise of the allegations made in the

FIR or the complaint and that the extraordinary or inherent

powers do not confer an arbitrary jurisdiction on the Court

to act according to its whim or caprice.

(ii) in the case of Vinod Raghuvanshi v. Ajay Arora

reported in AIR SCW 6660, wherein the Apex Court has

observed in para No.19 that it is settled legal proposition

that while considering the case for quashing of the criminal

proceedings, the Court should not ‘kill a still born child’,

and appropriate prosecution should not be stifled unless

there are compelling circumstances to do so. An

 20

investigation should not be shut out at the threshold, if the

allegations have some substance.

(iii) in the case of State of Orissa v. Ujjal Kumar Burdhan

reported in (2012) 4 SCC 547, wherein it is observed

with regard to exercising the powers under Section 482 of

Cr.P.C. Learned counsel also brought to the notice of this

Court para No.11 of the said decision, wherein it is

observed that commencement and completion of an

investigation is necessary to test the veracity of the

alleged commission of an offence. Any kind of hindrance

or obstruction of the process of law from taking normal

course, without any supervening circumstances, in a

casual manner, merely on the whims and fancy of the

Court tantamount to miscarriage of justice.

(iv) in the case of Smt. Mona Panwar v. Hon'ble High Court

Judicature Allahabad reported in 2011 AIR SCW 1185,

wherein it is observed that the discretion exercised by the

Court to order for investigation under Section 156(3) of

the Cr.P.C. cannot be interfered with even if another view

 21

is possible. Learned counsel also brought to the notice of

this Court para No.10 of the said judgment.

(v) in the case of Madhao and Another v. State of

Maharashtra reported in (2013) 5 SCC 615 and brought

to the notice of this Court para Nos.14, 17 to 19 with

regard to exercising the powers under Section 156(3) of

Cr.P.C., wherein it is observed that before passing the

direction for investigation under Section 156(3), he heard

the counsel for the complainant, perused the allegations

made against the accused in the complaint and the

documents annexed therewith. It also shows that taking

note of the fact that some of the accused are public

officers and after observing that it needs proper

investigation prior to the issue of process against the

accused under Section 156(3) of the Code and further

observed that it is satisfied that the Magistrate has not

exceeded his power nor violated any of the provisions

contained in the Code.

(vi) in the case of Rajesh Bajaj v. State NCT of Delhi and

Another reported in (1999) 3 SCC 259 and brought to

 22

the notice of this Court para No.9, wherein it is observed

that it is not necessary that a complainant should verbatim

reproduce in the body of his complaint all the ingredients

of the offence he is alleging. Nor is it necessary that the

complainant should state in so many words that the

intention of the accused was dishonest or fraudulent.

Splitting up of the definition into different components of

the offence to make a meticulous scrutiny, whether all the

ingredients have been precisely spelled out in the

complaint, is not the need at this stage. If factual

foundation for the offence has been laid in the complaint,

the Court should not hasten to quash criminal proceedings

during investigation stage merely on the premise that one

or two ingredients have not been stated with details.

(vii) in the case of Rajiv Thapar and Others v. Madan Lal

Kapoor reported in (2013) 3 SCC 330 and brought to

the notice of this Court para No.29 of the judgment,

wherein the Apex Court has held that to invoke its inherent

jurisdiction under Section 482 of Cr.P.C., the High Court

has to be fully satisfied that the material produced by the

 23

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

charge 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

leveled by the prosecution/complainant.

(viii) in the case of S.R.Sukumar v S.Sunaad Raghuram

reported in (2015) 9 SCC 609 in relation to the

amendment made in the PCR. Learned counsel also

brought to the notice of this Court para Nos.17, 18 and 19

of the said decision, wherein it is observed that insofar as

merits of the contention regarding allowing of amendment

application, it is true that there is no specific provision in

the Code to amend either a complaint or a petition filed

under the provisions of the Code, but the Courts have held

that the petitions seeking such amendment to correct

curable infirmities can be allowed even in respect of

complaints.
 24

22. Learned counsel referring to these judgments would

vehemently contend that the principles laid down in the

judgments referred supra is clear that if sufficient material is

found in the complaint, the investigation is to be conducted and

the Court cannot exercise the powers under Section 482 of

Cr.P.C. unless the Court finds existence of abuse of process in

order to harass the accused.

23. Having heard the learned counsel for the petitioners

and learned counsel appearing for the respondent No.1 and

learned Spl.P.P. for respondent No.2, the points that would arise

for the consideration of this Court are:-

1. Whether the Trial Court has committed an

error in referring the matter under Section
156(3) of Cr.P.C. as contended in the Criminal
Petitions and whether it requires interference
of this Court ?

2. What Order?

Points Nos.1 and 2:-

24. Having heard the submissions of the learned counsel

for the respective counsel and also on perusal of the material, it

 25

is not in dispute that the property measuring an extent of 16

acres 1 gunta was allotted in favour of Sri Ramalingeswara

Swamy Temple Trust from the year 1981 to 1990 and the major

portion was allotted in the year 1981. It is also not in dispute

that the Sri Ramalingeswara Swamy Temple Trust took a

decision to transfer the property in favour of accused No.1. It is

also not in dispute that the petitioners herein are helping

accused No.1-Mutt and looking after its affairs. Accused No.3,

who is the petitioner herein is also one of the trustees of accused

No.1. The records also disclose that before transferring the

property to accused No.1, the Government has accorded

sanction on the request of Sri Ramalingeswara Swamy Temple

Trust. The main contention of the complainant in the complaint

is that the Temple’s Trust Property is transferred and all the

accused persons had engaged in getting the Trust property.

There is a discrepancy in mentioning the number of the

Government Order No.RD 284 LGB 96 Bengaluru dated

2.4.1997, which has been wrongly referred as No.RD 234 and

the same has been mainly attributed in the complaint stating

that these petitioners have indulged in creating the said

document though there is no such Government order. It is also

 26

the very contention of the complainant before the Trial Court

that the grant was made in favour of the Sri Ramalingeswara

Swamy Temple Trust for specific purpose and in violation of the

grant conditions, the property has been transferred in favour of

accused No.1.

25. Having perused the materials available on record,

accused No.1 is no more and the case as against

accused No.1 has been abated. The petitioners, in two

criminal petitions are helping accused No.1 in looking after

the affairs of the said Mutt and another petitioner is also

one of the trustees of the said Mutt. The main contention of the

complainant is that he is the Social Worker and also the

Ex-Councilor of Hulimavu Village, Bannerghatta Road for

Bommanahalli City Municipal Council, which is also not in

dispute. The complainant is not the trustee of Sri

Ramalingeswara Swamy Temple Trust, which took a decision

and passed the resolution to transfer the property in

favour of accused No.1 and thus, approached the Government

seeking prior approval for transfer and after obtaining the

sanction, the property has been transferred. The sanction was

 27

accorded in the year 1997. No doubt, the complainant formed a

Trust in the name and style of ’Sri Ramalingeswara Swamy

Temple Jeernodhara Trust’ in the year 2011, almost after 4

years of transfer of the said property. The process of

transferring the property was initiated and completed from the

year 1995 to 1997 and the Government accorded sanction in the

year 1997 itself. The petitioners have also produced the

photographs along with the petition stating that the complainant

had participated in the function of accused No.1-Institution. The

petitioners have also placed Annexure-P-the letter written by the

complainant to the Principal, B.G.S.N.P.S. School, requesting to

accommodate a seat to the candidate in the School and the

same has not been considered by accused No.1 and thereafter,

the disputes started. It is clear that the said letter was

addressed on 29.10.2011 and whereas the new Trust was

formulated by the complainant in the year 2011 after 1 month of

the said communication and rejection of the request of the

complainant. Hence, the petitioners have contended that this

complaint is the offshoot of the rejection of the request made to

accommodate a seat to the candidate in the School and

 28

complaint is filed with mala fide intention and to wreck

vengeance.

26. Having perused these materials available on record,

first of all, the complainant is not a trustee of Sri

Ramalingeswara Swamy Temple Trust and the said trust took a

decision to transfer the property in favour of accused No.1. Only

after obtaining the sanction from the Government, the procedure

has been followed in transferring the property. If the

complainant is having any grievance with regard to the transfer

of the property and violation of any conditions of the grant, the

same would constitute a dispute of civil in nature. The civil

dispute has been given the colour of criminal offence and thus,

filed a private complaint. The Trial Judge ought to have taken

note of the contents of the complaint while exercising the powers

under Section 156(3) of Cr.P.C. No doubt, it is settled law that

while exercising the powers under Section 156(3) of Cr.P.C., the

Court has to apply its judicious mind whether the allegations

found in the complaint sufficient to attract the ingredients of the

criminal offence which have been invoked against them.

 29

27. On perusal of the private complaint, the offences

invoked in the complaint are for the offences punishable under

Sections 9 and 13(1)(b) and (d) and Section 13(2) of Prevention

of Corruption Act and those offences are relating to only the

Government officials but these petitioners are not the

Government officials. The other offences invoked against these

petitioners are for the offence punishable under Sections 114,

119, 120B, 167, 218, 420, 464, 465, 468, 470, 471 of IPC. The

transferring of the property in favour of accused No.1 took place

in accordance with law and prior approval was also sought from

the Government. Only after obtaining the sanction from the

Government, the procedure of transferring the property was

made. After completion of the due procedure, the property was

transferred in favour of accused No.1. The only discrepancy is

with regard to the number mentioned in the Government Order

as No.RD 234, but the Government Order as per Annexure-H is

clear that the order number is 284 dated 2.04.1997 and that

typographical error in the office proceedings cannot be

considered as a criminal offence of fabrication of documents.

 30

28. In view of the principles laid down in the judgments

referred supra by the respective counsel, no doubt, the Court

cannot interfere at the threshold unless the very process is

abuse of law. There is a substance in the contention of

respondent No.2 counsel that the Court cannot invoke the

powers under Section 482 of Cr.P.C. if the materials are found to

proceed with the investigation, which is also the settled law as

held by the Apex Court in Maksud Saiyed’s case (supra), but at

the time of referring the matter under Section 156(3) of Cr.P.C.,

the learned Judge has to apply his judicious mind.

29. On perusal of the order impugned referring the

matter under Section 156(3) of Cr.P.C., though the order runs

into pages, as it is rightly brought to the notice of this Court by

the learned counsel appearing for the petitioners in para No.56,

except mentioning that on careful perusal of the materials on

record and hearing the complainant, there is no any application

of mind by the Magistrate with regard to the contents of the

complaint and also the documents to hold that the matter

requires to be referred for investigation and also there is no

discussion with regard to how the ingredients of the offences

 31

which have been invoked in the complaint attracts against the

petitioners with regard to the allegations made in the complaint.

First the allegations are made against accused No.1 and insofar

as these petitioners are concerned, except referring to the act of

accused Nos.1 to 4, no specific averments are made against

these petitioners as to how they have indulged in the said act of

transferring the property, which is nothing but a clear abuse of

process in invoking Section 156(3) of Cr.P.C. as held by the

Apex Court in Bhajan Lal’s case referred to by the learned

counsel appearing for the respondent No.2 himself.

30. The Apex Court, in para No.108 of the said judgment

has given the instances under what circumstances, the Court can

invoke Section 482 of Cr.P.C. If the complaint does not discloses

any offence as invoked and if it is an abuse of process, which

leads to miscarriage of justice, the Court can invoke Section 482

of Cr.P.C. This Court would like to extract para No.108 of the

said judgment hereunder:-

108. In the backdrop of the interpretation of the

various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
 32

categories of cases by way of illustration wherein such

power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.

(1) Where the allegations made in the first

information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.

(2) Where the allegations in the first information

report and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not

constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or

complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal bar engrafted

in any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
 33

concerned Act, providing efficacious redress for the

grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly

attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.

31. Having considered the principles laid down in the

judgment referred supra and going through the circumstances

under which the Court can invoke Section 482 of Cr.P.C. for

quashing of the complaint and criminal proceedings, it is clear

that when the averments made in the complaint/FIR do not

constitute an offence, particularly, when the allegations made in

the complaint are so absurd and inherently improbable on the

basis of which, no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding against

the accused. It is also observed in formulation of point No.7,

wherein it is categorically held that where a criminal proceeding

is manifestly attended with mala fide and/or where the

proceeding is maliciously instituted with an ulterior motive for

wrecking vengeance on the accused and with a view to spite him

due to private and personal grudge, the Court can exercise the

powers under Section 482 of Cr.P.C.

 34

32. In the case on hand also, as I have already pointed

out the complainant had sought a seat for the candidate in the

Institution run by accused No.1 and same was rejected in the

year 2011, from where the vengeance started and thus, with a

mala fide intention and also with malicious intention instituted a

complaint with an ulterior motive for wrecking vengeance on the

accused.

33. The Apex Court also in the judgment of Maksud

Saiyed’s case has categorically held that summoning of an

accused in a criminal case is a serious matter and the criminal

law cannot be set into motion as a matter of course and the

Magistrate has to carefully scrutinize the materials produced on

record and then invoke Section 156(3) of Cr.P.C. While

exercising the power under Section 156(3) of Cr.P.C., the

Magistrate is required to apply his judicious mind.

34. The Apex Court also in Dineshbhai Chandubhai

Patel v. State of Gujarat and Others reported in (2018) 3

SCC 104, held that the Court can exercise the powers under

Section 482 of Cr.P.C and examine the question involved in the

 35

matter and contents of the complaint/FIR has to be looked into.

If the prima facie material is not disclosed and if it amounts to

an abuse of process, which leads to miscarriage of justice, then

the Court can invoke Section 482 of Cr.P.C.

35. The Apex Court also in the judgment reported in

1977(2) SCC 699 in the case of State of Karnataka v.

L.Muniswamy and others with regard to exercising the powers

under Section 482 of Cr.P.C. held that in exercise of wholesome

power, the High Court is entitled to quash a proceedings if it

comes to the conclusion that allowing the proceeding to continue

would be an abuse of process of the Court or that the ends of

justice require that the proceedings ought to be quashed. It is

also observed that while exercising the jurisdiction under Section

482 of Cr.P.C. the powers ought not to be encased within the

strait-jacket of a rigid formula. It is the duty of the Court to

consider the judicially whether the material warrants the

prosecution of a person.

36. The Apex Court also in the judgment reported in

(2015) 6 SCC 287 in the case of Priyanka Srivastava and

Another v. State of Uttar Pradesh and Others, particularly

 36

with regard to exercise of powers under Section 156(3) of

Cr.P.C., has categorically held that the remedy available under

Section 156(3) of Cr.P.C. is not a routine nature. Exercise of

power thereunder requires application of judicious mind. The

Magistrate exercising the said power must remain vigilant with

regard to nature of allegations made in application and not to

issue directions without proper application of mind. It is also

further held that while exercising the powers under Section 482

of Cr.P.C. in respect of quashing the FIR where the powers under

Section 156(3) has been exercised, the Court has to take note of

the abuse of process of Court and also miscarriage of justice.

37. The Apex Court also in the decisions in Criminal

Appeal No.161/2020 arising out of S.L.P. (Crl.) No.3627/2018

between Sardar Ali Khan v. The State of Uttar Pradesh and

another reported in 2020 (12) SCC 51, taking note of the civil

dispute between the parties and also the private complaint held

that there is no allegation of impersonation and forgery of the

signatures in the suit filed by respondent No.2 and hence, the

respondent No.2 cannot pursue his complaint in criminal

proceedings by improving his case. It is further observed that

 37

having regard to serious factual disputes which are of civil

nature, for which civil suits are pending, allowing the respondent

No.2 to pursue his complaint in the criminal proceedings is

nothing but abuse of process of law. It is further held that for

the aforesaid reasons, we are of the considered view that the

criminal proceedings are fit to be quashed by allowing this

appeal. In the case on hand, no civil suit is pending, but the

factual aspects found in the complaint are mainly the allegations

that the property has been transferred in violation of the grant

conditions. Hence, it is nothing but giving a criminal colour to the

civil dispute of violation of grant conditions and also the

allegation that the property was transferred in favour of the Mutt

i.e., accused No.1 deviating from the purpose for which the land

was granted was transferred, which constitute a dispute of civil

in nature and records reveal that after obtaining sanction from

the Government, the property has been transferred.

38. Having considered the principles laid down in the

judgments referred supra and as I have already pointed out that

the Court cannot exercise the powers under Section 482 of

Cr.P.C. if the materials are found to proceed against the accused

 38

persons. In the case on hand, no such materials are found in the

complaint and also there is a non-application of mind by the

Magistrate while referring the matter under Section 156(3) of

Cr.P.C. for investigation, which amounts to an abuse of process

and miscarriage of justice.

39. Having perused the materials available on record and

also the order of the learned Magistrate, except in para No.56,

nothing has been discussed with regard to the material to comes

to a conclusion that the Court can invoke Section 156(3) of

Cr.P.C. and not formed an opinion that the contents of the

complaint requires an investigation. Insofar as the allegations

made against these petitioners are concerned, except tagging

their names along with accused No.1, no specific allegations are

made. The sum and substance of the complaint is that the

granted land is transferred in violation of grant condition and

how the same attracts the criminal offence, shows the non-

application of mind by the learned Magistrate. At the most, the

said contention can be urged in civil proceedings and not in

criminal proceedings. The typographical error in mentioning the

number of the Government Order also not attracts the criminal

offence and the same is also not disputed by the State. It is not
 39

the case of the State that the order has been fabricated. The

State also not questioned the transfer of the land. Apart from

that the complainant, who filed the complaint, though

represented through the counsel not appeared and contested in

this proceedings but only the counsel, who represented the I.O.,

have contested the matter. Under the circumstances, there

cannot be a criminal prosecution against the petitioners herein,

which leads to an abuse of process and miscarriage of justice. If

the Court fails to exercise the jurisdiction under Section 482 of

Cr.P.C. in a case, where the complaint is lodged with a mala fide

intention and to wreck vengeance against the petitioners, it

defeats the very purpose of Section 482 of Cr.P.C.

40. It is also the settled law that initiation of the criminal

proceedings against the persons is a serious matter and criminal

law cannot be set into motion as a matter of course and the

Magistrate has to carefully scrutinize the materials brought on

record. On going through the entire averments of the complaint

and the materials available on record, it is nothing but an

allegation of violation of grant conditions. Hence, it is clear that

a criminal colour is given to a civil dispute which is related to any

 40

violation of grant conditions and the same has to be agitated at

the most in civil side in a civil proceeding and not converting the

same as a criminal prosecution. In the case on hand also, the

property was transferred after getting prior approval from the

Government in the year 1997 itself and only because of the

typographical error found in the correspondence of office

proceedings in referring the Government Order, which has been

maginified in the complaint and not in Government Order and

the same is in order. The very initiation of the criminal

proceedings is made with mala fide intention to wreck

vengeance. Hence, it is a fit case to exercise the powers under

Section 482 of Cr.P.C. or otherwise, it amounts to an abuse of

process which leads to miscarriage of justice.

41. In view of the discussions made above, I pass the

following:-

ORDER

(i) The petitions are hereby allowed.

(ii) The order referring the complaint under

Section 156(3) of Cr.P.C. for investigation
against these petitioners is hereby quashed.
 41

In view of allowing the main petitions, I.As. if any, do not

survive for consideration and the same stands disposed of.

Sd/-
JUDGE

CP/PYR