-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO.13/2010 1 Shri Devendra Vassudev Karparukar, of Major age, Businessman, r/o. H. No. 257/1, Sirsaim, Tivim, Bardez, Goa. 2 Shri Umakanat Gajanan Kudnekar, of major age, Businessman, r/o. H. No. 267, Sirsaim, Tivim, Bardez, Goa. 3 Shri Madhukar Ganesh Kalangutkar, of major age, Businessman, r/o. H. No. 280/1, Sirsaim, Tivim, Bardez, Goa. 4 Shri Hanumant Rupi Chodankar, of major age, Businessman, r/o. H. No. 141, Sirsaim, Tivim, Bardez, Goa. 5 Shri Dilip Anant Kandolkar, of major age, Service, r/o. H. No. 177/1, Sirsaim, Tivim, Bardez, Goa. 6 Shri Narayan Fondu Kudnekar, of major age, -2- Businessman, r/o. H. No. 172, Sirsaim, Tivim, Bardez, Goa. …...... Petitioner. Versus 1 The State of Goa, Through the Police Inspector, Mapusa Police Station, Mapusa, Bardez, Goa. 2 Mr. U. D. Gawade, PSI, Mapusa Police Station, Mapusa, Bardez Goa. 3 Mr. Gurudas @ Krishnaji Kelkar, of major age, Priest, r/o. H. No. 81, Sirgao, Bicholim Goa. …...... Respondents. Mr. S. Walwaikar, Advocate for the petitioners. Mr. C. A. Ferreira, Public Prosecutor for respondent no.1. Mr. A. Bhobe, Advocate for the respondent no. 3. CORAM :- U. D. SALVI, J. DATE :14th June, 2010. ORAL JUDGMENT Heard. Perused petition and the annexures therewith. -3- 2. Rule, made returnable forthwith. By mutual consent taken up for hearing. 3. Members of the Executive Committee of a Devasthan Shri Mahalaxmi of Sirsaim are seeking quashing of FIR no.15/2009 dated 21.1.2009 under section 341, 447, 448, 427 read with section 34 of Indian Penal Code, 1860 registered with Mapusa police station, Mapusa, North Goa. 4. The respondent no. 3 Mr. Gurudas Kelkar lodged complaint dated 21.1.2009 against the petitioners herein on the allegations that on 21.1.2009 at about 11.00hours when he returned back to his house at Sirsaim, he saw the lock of the main door replaced and substituted by other lock and some plastic chairs kept inside his house. He made reference to previous complaint lodged by him against petitioner no.1 Devendra Karapurkar and his associates at crime no. 255/2008 dated 17.12.2008 under section 143, 147, 447, 448, 427, 380, 341 read with section 149 of Indian Penal Code. In the said complaint he further alleged that the persons responsible for the -4- crime lodged on 17.8.2009 were often trying to take forceful possession of his house and therefore suspected their involvement in the crime complained of. 5. Learned Advocate Mr. Walwaikar, for the petitioners, submitted that for the crime of the kind alleged by the respondent no. 3 there ought to be primafacie revelation of the fact of possession of the house/residential premises in the hands of the complainant/ respondent no. 3 Gurudas Kelkar and myth of this fact is clearly exposed by the suit for possession of the said premises bearing RCS no.45/05/B instituted by the respondent no. 3 and his wife in the Court of Civil Judge Senior Division, Bicholim against one Mukund @ Ramesh Bhaskar Tatkar. He clarified that the complainant was the priest in employment of the Devasthan and as such was allotted the residential premises in relation to which criminal trespass has been alleged. He further clarified that as a result of the employment of the complainant coming to an end within short time in the year 1995, he had to give up the said premises and he did handover the possession of the said premises to the Devasthan committee and thereupon other -5- priest Mr. Mukund Tatkar, defendant no.1 in the said suit was inducted in the said premises. Learned Advocate Mr. Walwaikar, pointed out from the copy of the letter dated 12.11.2008 of Mukund Tatkar, defendant no.1 in the said suit that the possession of the said premises was surrendered by Mukund Tatkar to the Devasthan Committee. He further submitted that all these facts were brought to the notice of Investigating Officer and yet Investigating officer had lodged the chargesheet in the said case. In these circumstances he further submitted that there has been abuse of the process of law particularly when no case of criminal trespass as alleged in the said complaint can be prosecuted any further. 6. Learned Public Prosecutor Mr. C. A. Ferreira, for the State submitted that the Investigating Officer did take into consideration the said suit and after recording the statements of the concerned witnesses had discovered that exclusive possession of the said premises was not handed over to Mr. Mukund Tatkar, and the ingredients necessary for sustaining the case under section 341, 447, 448, 427 read with section 34 of Indian Penal Code, was made out in -6- the complaint dated 21.1.2009. He invited the attention of the Court to para no. 19 of the plaint in the said suit. 7. Complaint dated 21.1.2009 reveals clear assertion of the facts that on 18.1.2009 respondent no. 3 had closed the main door of his house and put lock on the door and on returning he had seen the lock substituted on the main door and some plastic chairs kept inside his house. Para 19 of the plaint speaks of the fact that the plaintiff and his family members used to reside in the said house alongwith defendants every year on the eve of Dussera day, Laxmipoojan, Balipoojan and on the birthday of Devi Mahalaxmi. Complaint dated 17.12.2008 lodged by respondent no. 3 Gurudas Kelkar reveals a fact that on 16.12.2008 the complainant and his wife had left the said house after keeping his maid servant Mrs. Shantabai Shankar Gawas back, and on returning had found that his house was ransacked and the maid servant had left the said premises. 8. Now the chargesheet has been lodged. The complaint in question discloses the ingredients of the offences alleged therein. In -7- view of the allegation and counter allegations it will not be proper to jump to any conclusion that there has been abuse of process of law. No interference is therefore called for. However the trial Court may not be influenced by any of the observations made herein and shall proceed to conduct the proceedings in relation to crime no. 15/2009 in accordance with law. 9 Rule is discharged with no order as to costs. U. D. Salvi, J. vn*