IN THE HIOR COURT OF KARNATAKA AT BANGAI)R! Dated this the 26t. ay cf av, i’98 BFORF THE HON’BLF MR,JUSTICF V,P,MOHAN JMAR / ITIONNo,3384 0717 BETWEEN: Mr.M.V.Krishna Murthy, S/o Late R,Varadarajan, major, Rio No.227, I Floor, 53rd Cross, VI Main, IV Block, Rajajinagar, Bangalo56O 010 ,,PETITIONFR (Sri .L.M ,Pandurangaswamy, Advocate, for the petitioner) AND: 1, Sri,S,V,Hadimani, Circle Inspector of Police, Rajajinagar Police Station, Bangalore, 2, Smt,Shakuntalamna, wio Late R,Varadarajar 1 , major, R/o No.227, 1 Floor, 53rd Cross, VI Main, IV Block, Rajajinagar, Bangalore-560 010 3 • Smt ,P ,Prabhavathi, W/o R • Kumar, maj or, R/o No.615, 75 ‘A’ Cross, VI Block, Rajajinagar, Bangal ore, 4, Cile Inspector of Police, Rajajinagar Police Station, Bargalore. 5 Shivararn, Advocate, Ground Floor, 53rd Cross, 5th Main, 4th Block, Rajajinagar, Bangalore-1O •.. RESPONDENTS (M/s,M,T,Nanaiab. & Associates for respondents Nos,2 and 3) (Sri.N.K.Ramesh, HOGA, for respon dent No.4) (Sri.M.R.Rajagopal, Adv.for respon dent No.5) (R—1 — Ack,not received) Writ Petition filed under Articles 226 & 227 of the Constitution of India, praying to (a) issue a writ in the nature of mandamus directing the Circle Inspector of Police, Rajajinagar Police Station, Bangalore — the let respondent herein to deliver the house-hold articles enumerated in the Schedule annexured to this petition; and (b) to review the order passed by this Hon’ble Court in W,P,No.2645/97 dated 26—91997, etc. Pbis Writ Petition having been beard and reserved for orders and coming on this day for pronouncement of orders, the Court pronounced the following: OR_D_E_R A domestic dispute involving the mother and children, which should have been ttled amicably, reached first the portals of the Court, then travel led through to the look up in the Police Station and Sub-Jail and has now reached this Court, 2, The —3— 2. The petitioner is the son of the 2nd respon dent and the brother of the 3rd respondent. He resides, according to him, along with his wife and three cbildren,the eldest being 20 years, in the building at No.227, 1 Floor, 53rd Cross, VI Main, IV Block, Raajinagar, Bangalore, Admittedly, the 2nd respondent also resides in the same premises along with her mentally retarded child, The 3rd respondent is a married daughter and has taken up residence along with the 2nd respondent, which, according to the 3rd respondent, is intended”to lend mar al support” to her. 3. The petitioner alleges that on 31—8—1997, the petitioner, his wife and two of his eons were summoned the Police Station the 4th respon dent by deputing two plain clothes Police men at about 10 A.M. The third child, a minor daughter was left behind in the house, It was represented to them that there was complaint filed by the 2nd respondent against them (who along with the 3rd respondent and two other strangers were present in the Police Station) alleging the commission of offence of trespass, intimidation, attempt to commit uirder by pouring kerosene oil, poisoning the drink ing water eto,eto, The petitioner alleged that they were detained in the Police Station till 4—30 P,N —4— wherea.fter, th.ey were produced before the Magistrate, who, in the absence of sureties to release them on bail, remared them to judicial custody and sent to sub—jail. They were produced before the Court at 1 P.M on 1-9-1997, whereafter they were released on bail, They allege that they were out of Police custody by 5-30 P.M. 4. The petitioner alleges that after they ‘re brought to the Police Station on 31—8—1997, the petitioner was not informed of the arrest. The peti tioner came to know of the arrest from the residence of the Magistrate alone whereupon, with leave, he contacted his daughter and asked her to contact the Lawyer Sri.S,V,Naik and intimate him the development, 5, When the pet.. tioner came back, the petitioner was confronted with a strange situation, It was informed by his daughter that after the 2nd respon dent came back, she vs forced out of the house where she was staying. Thereafter, in the presence of the respondent ani two other Police Constables, the house—hold antioles of the petitioner were thrown out, The daughter who was driven out was given shelter by the 5th respondent. It is further alleged that at about 11 P.M that night, the respondent brought a middle aged woman n an auto— —5— autorick.shaw, who was carrying a bedding and few house—hold articles and he put her in possession of the emises occupied by the petitior, There after, on his instruction, the 3rd respondent closed the passage leading to the first floor 6. The petItioner pleads the following background to the case, The property be longed to the father of the petitioner SrI.Varadarajan, On his death, on 22—5—1995, it devolved on his wife and children, The petitiorr claims that he dihged the debt incurred by the fatb on account of the construc tion of the building where they are residing and alleges further that be renovated the building. He alleges that the 3rd respondent used to visit the house frequently wIth an eye to siphon the property and she caused rift between the mother and son, She claimed partition of the property, but the petItioner declined the requests This led the 2nd respondent lodging a complaint against the petitioner with the Police, The petitioner also lodged a counter cornplaint Later the 2nd respon dent filed O,S,No,9074/96, a suit for partition of the residential building. The petitioner also filed O,S,No.4745/97 against respondents Nos,2 and 3 for permanent injunction, Interim orders have been made made in both the suits. The culmination of these disitee, according to the petitioner, is the last complaint and the arrest of the petitioner and the mbers of the family, When the petitioner came back, he discovered that the 2nd respondent h got control of the premises occupied by him arid several of the movables were lying strewn outside. They were stacked in front of the ground floor occupied by the 5th respoMent, wM•eh .le:d. . the to St.. re spondent 1 file. W.P , .26451 /97 for a direc tion to the authorit . , namely, the 4th respondent, to remove these unclaimed articles. On 2691997, this Court ordered removal of the articles in Anne31reD1Judgment. The petitioner alleges that this order was obtained behind his back, and. be vas not made a party to the said proceedings. The articles listed in Anneire—G were in his premises, occupied by him and the 4th respondent is liable to make od the same. The petitioner has filed the Writ Petition seeking the following reliefs: (a) issue a it in the naire of maMais directing the Circle inspe tor of Police, Ra3a3inagar Police Station, Ban.galore the let Respondent herein to deliver the house hold articles enumerated in the Schedule Annexed to thIs Petition, (b) to ‘4/ e7a (b) to review the order passed by this Eou’ble Court in WJ.No.2645/97 dated 2691997. (a) issee such other nit or order or direotion as this Eon’ble Court deems fit to cant under the circumstances of this ease including the order as to oosts in the interest of Justice and equity. 7. !roept the 4th respondent, who was to nfl available the records, filed a stateant of objec tions anseering the faobtal details at detailing. the incidentS that transpired. Io of the, other respondents han chosen to deny the allegations made by the petitioner by filing a statement of objections. The incumbent of the Office of the 4th respondent the 1st respotent 4 against whoa certain mala tide conduct has been attributed, has not even thosen to deny the averments. On respon dents 2 and 5, emergent notice was ordered on 2a121997, and the petitioner was permitted to serve notice by hand delivery. These respondents, it is alleged, at first refused to receive notice. Later, process was paid for service of notice on these respondents. On 11-12-1997, Vr.Ltjanaiah, learned counsel entered appearance on behalf of the t 2nd and 3rd respondents, Though they entered appearance, t1y did not file etateme nt of ob3eo— tions in rebuttal of the allegations mie in the Writ Petition, The Writ Petition was bead on 1O12—1997, 12—12—1997, 15—12—1997, 16—12—1997 and on 1812—1997. 8, in the statement of objectioi.. filed by e 4th respondent, it is briefly stad that the complaint filed by 2nd respondent was received at 11—30 A.M on 31—8—1997, that the said complaint was roorded in the General Diary The case Crime No.345/97 of Rajajinagar Police Station, involving the commission of offence punishable under Sections 448, 506(2) i.P.C read with Seo.125 of the Criminal Procedure Code, was registered, it is alleged that t1 petitioner, his wife and hs children, who were summoned, carne 13-30 hours, that th were produced befo the jurisdictional Magistrate at 3-45 P,M, that as there were no — V sureties to release them on bail, therefore, they were manded to Police custody. Again, it is rred that a telephone call was received from one Mr,S,V,Nalk on 31—8—1997 at 5—45 P.M informing that some persons ha broken open the lock put to the house bearing Door No.27, 6th Main, 53rd Cross, Rajajnagar, where the petitioner was residIng and and the caller requested the 4th respondent to go over there and enquire. Thereupon the 4th reeponnt went there and discovered that certain house—hold articles were lying in the passage. He then directed the 2nd respondent not to keep the articles ifl the passage, whereupon the 2nd respondent kept the same inside the house, At about 5-45 P.M, a tele!•honic call was also received from the Office of the Commissioner of Police from P.S,I (Crime), Raja3inagar Police Station, enquiring about the call made by Sri,S,V,Naik and he informed the Commissioner of Police about the arrest of the petitiozr on the complaint of the 2nd respondent, It is alleged that later at about 83O P.M, Sri.S,V Naik, Advocate, lodged a complaint that the 2nd respondent has trespassed into the premises of the petitior. This was registered as Crime No.436/97. It was further submitted that the compint of the 2nd responnt was registered as Crime No.345/97 was investigated by the P.5,1 (1 & 0) and after due investigations chge-sheet has been prepared. Likewise, 0 rime No.346/97 filed by Sri.S,V,Naik was also under investigation. But,on 291997, the 4th respond.ent states t.t 1 notice s issued to all coierned informing that the interim order i— — passed in the suit fIled by the petitioner,in O,S,No,4245/97 should be abided by all concerned, -jo lt is alec averred that the petitioner hac filed O,No,7285 97 seeking injuxiction lief against the 4th respondent and Coirmissioner of Police and had moved T,A,No,T thprpir for interim re 1sf, On 3 —7—197, the Civil Court bee ordered maintain— in of staie quo, making it however clear t?at the order will not prevent taking action for breach of peace. Therefore the present *frit Petiti 11 made, rrakirp reckless al epation is ott of place. The 4th respondent submits thet be las complied with the order cated 2 —9— 997 in W,No,2o45177 under a aha7ar which the respondent Aiil make availle and they are now in Police custody and the same has been thlv odered by the VT Addl,Chief Metr politen apietrate, Panpalore, The 4th respondent liepas LLi tLiC articles alloge. in AnnerArex sche4 1 e were never taken noseession of, The allegations made in this beha f are intended to p ejt dice this ourt. Tb allegations made again . t e th reepo — dent we e 1 deiied He a ages t it the tb AC ne 0 nI ‘wn t e pe imp 1 tigati n at e n the eli tonei and the n respondent, The respo dent seek ha cii ,iniss 1 of the Writ Pc citi n 9, 1 have h ard Mr,Pandt rangaewaniy, earn m counsel for the netitioner, and VrJ ,K,hamesh, earned ote slant Government Advocate appearing on behalf of the 4th respondeiit, I did not have the benefit of the arguments of the other counsel. 10. 1 had directed the learned Government Advocate ‘r,Ramesh to make available to this Court the General Diary maintained by the Ra3ajinagar Police Station for the relevant period and he had been exceptionally helpful to this Court and h assisted the Court displaying a eater amount of responsibility and fainess. 11, To begin with, I will advert to the plaint in. 0.S,No,9074/96. That is, admittedly a suit filed by the 2nd respondent against the petitioner for partition and separate possession of her share. The petitioner is shown as residing at: “No.227, 53rd Cross, 4th Block, Rajajinagar,” T’e plaint makes the following avermenta regarding the possession of the petitioners “ 6, That durIng the li tive of the hisband of rhe plaintiff, tb husband of the plaintiff allowed the son Sri,M.V Krishnamurthy to resile in the round floor and the plaintiff Is residing in the upatair portion along wIth her mentally retaroed aon Sri V,V.Chandra— she kar.” The —12— The 2nd sporent proceeds as if, as on the dete of the siit, the petItionsr is occupying the ‘ou floor and is attempting to induct stranger who is the 5th respondent herein and that appro priate interim orders may also be gTanted In this behalf, the following averments in the plaint ay also be adrted to: “That the plaintiff submi if the defendant iS allowed to lease or mort gage the properly without having any right and without giving the shais of the plaintiff and other family members it will not only affect the right of the plaintiff but also other family members, If he is allowed to do so, The plaintiff and other family members wiil be put to greater hardship, mental agony and further which cannot be oompensad any manner,” xx xx xx xx xx That the plaintiff submits that the order of permanent njunctioa is necessary restraining the defendant from the creating third party interest, under the circumstances stated abo,” This suit was filed on 23—12—1996 On 27—12—96, an ex parts temporary thjunotion was also canted againat the petitionsr restraining him from alienat in the property In the statement of objections filed by the petitioner In the I .A, for temporary injunction, 1. —13 injurtion on 112—1997, i’ find the following avernienis: “This defendant submits that the plaintiff is in occupation of a larger portion of the first floor, comprising of a hall, two rooms and kitchen whereas this detendant along with his wi and three College going children are resid ing in a room in the first floor and enjoying the common toilet,” xx xx xx xx “This defendant submits that while the round floor house is in the occupa tion of one Sri,H.C,Shivaramu and his family, the outcome o f tbe round floor which has been converted to a godown and an adjoining room are in occupation of other tenants, Tbe rents from the godowu and the room e being realised and appro priated by the plaintiff...” It is seen that the interim order passed on 261219:6 was modified as on 11—2—1997 callingupon the parties to maintain the status quo. The next averment to be ferred in this behalf is the complaint flied by the 2nd respondent before the Sub-Inseotor of Police, Rajajinagar, alleging trespass of the portion of upetair by the petitioner on 10—2—1997 and occupying the sam, This complaint is —14— is made as early as on 13—2—1997, It stated tbu: “,,My son family memrs now trepaed into my house yesterday evening and oooupia3. the let room of the let floor premises and they are now giving all sorts of ouble and further t1eaten- ingme and my son with dire conseqzences to kill and at any time they m do li1 414 t • a4 Apain an I,A,is seen filed in 9 ,S,!To,9O74/96 under Order 39 Rule 2A of the CP,C before the Civil Court to tale action against the petitioner for violation of the interim order, It is averred therein as under: “That, the defendant herein served with the notice and eutered appeararce so far they are have not filed any objeotion, now at the instance of one ri,Shivaramu, Advocate, they have es passed into the first floor and occupied let room and they e giving all sorts of trouble to me and also to my daugbtr Prabhavathi wno 2s now svayiiig with me for givin; moral spport.” This I,A,was filed only on 11—3—1997 Now, it is thus stated that the ,etitioner was in. occupa tion of a Room in the upstairs along wita the 2nd respondent and that the 5th i’sponaent is in ooeu pation of the ground floor, This state of affairs is broight about, according to the 2nd respondent, by trespass. Thereafter, alleging that the Police authorities are not taking any action on her complaint, the 2nd respondent filed a priva complaint before the VII Addl,Chtef Metropolitan Magistrate at Bangalore as P,C,R,No,133/97 complaining the incidents set—forth abo and referred to in the complaint made to the Police on 13—2—1997 and alleged commission of offence punishable under Sections 448, 307, 506B and 34 of I,P,C, The complaint was ordered to be investigated into by the Police, The Police registered the me as Crime No.90/97 and investtgated . In that investi gation, the 5th respondent gave a statement and produced the copy of the mortgage deed executed by him to the petitioner. The same is dated 12—12—1996, and is )ong prior to the institution of the partition suit tse1f. There was also a complaint me by the wi of the petitioner on 20—2-197 apainet the husband of the 3rd responden regarding certain incIdent and. though it s ac1owledged as having ieeeived by the Police, no action Is seen taken theeon, ThereIn also she alleges as residing along— with t 2nd respondent in the upstair portion, The private compli t filed o t 2n1 respondnt !aS also referred, on the Police filing a ‘B’ report to te effect tht th ubje t—mate is urely a 0 iiril —16— civil aispute pending in C, t ,o,9O74/96, This was in 4 iwsted to fre 2nd respondent by conidation dated 18—3—1997, The 2nC respondent accapted the report and took no steps to challenge the same, It is to be noted th the complaint specifioally alleged trespass by the petitioner and commission of en offence punishable under Section 448 of I .2,0, 12, Thus, as on 18—3—19 , the position was tha petitioner was in occupati n of a portion f the ewiees in Vi ‘pstai potir of the Iilii% in cues 4 ior al r with the °nd respondents The oind floor was mortgaged to the th respondent under a document aated 12—12—1996, long before the insti tution of the ptition iit by tbe 2nd respoient and obtaining any interim order, The questions whether the petitioner gained entry by trespass etc., ase ow to be adjudiocted ard within the rnrvi f i estipatiot bj th Civil Court, and, the • re t i Court o la o touch ip that iss e Ic t ud r di he pa ie 13, T e t itioner has r d cc the do ri ity bifls dated 3—2—1997, 3—— ggc, 3—7—1q97, 3— —1997, *h 4 nterview card received by hi i son at tha adress shown as at ?,2 27 , 3ru ros, 4th nooK, \ / Rejajinag, Ration Cd, etc., to show that he is residing in the premises s claimed by him, 4 ow, -A ella 14. Now, prima facie, it is shown that the peti tioner is in occupation of the premises in 227, I Floor, 53rd Cross Road, 4th Block, Rajajinagar. It is also conceded that he is a coeowner of tim property along with 2nd respondent. Admittedly, the 3rd respondent is not staying there permanently, and even according to the 2nd respondent, she resides there along with her. “to lend moral support” (vide pleadings in the civil proceedings) 15. There is one other developsent to be noticed before proceeding. The petitioner, apparently not to be outbeaten his mother, the 2nd respondent, has also filed O.S.Ilo.4245/97 on 3e6e1997 against respondents Nos.2 and 3 seeking permstmnt injunotion restraining aliention of the property. Therein he states as under: “The plaintiff along with his wife and three college going children is residing in a portion of the first floor oomçprising a room and ccaon toilet. The first defendant along with a plaintiff’ e brother MJ.Chandrasekhsr who is mentally disabled are also living in the first floor, though the said area under their occupation oomprises a hail, two rooms and kitchen. The ground floor w in 4 t I 0 .1 4. — r 4, 1 a 4* S. 4 e • r e . ‘ •c : ‘3 a 4’ a a) $ • $ 4 1 • dl, S 4 5.. — I $ $ U 5. c 4, u’ in? q ‘ott H 44C I U .Ii . + • , £ eta) 4 .P • • ...0 4 10 C V I I’ (cc 4 7 q + + r 5.4 5. r V g : ‘ ‘ L $ c • 1• + 4 a3S + + 4. 4 5. 1 4 4) 4 k $ 4 5)) V 4 .4 4 • a 4. b • 1 •1r + • r 7 4 1 — 4 itt’’ + 4’ 5. Li’? 4, + 4 4 41 4’ 4 N V .t 7) ) ) ‘1 441 t a + •rIl +‘L T * 11 ‘ 1) a t • I. 4 a ‘‘b’ ID S t1 rat U / .4 9 a . S ‘H ‘ $ . S I . ,1 + t 1 + 1 I •a 5 at It .1 oi ‘-4 .4.4. 4’ 0 a 4. 8 • o a *0 a; IC .4+ * • t44$ H o 04.41, ,0 a a • ‘I $ o 4’ WV 0 ‘a.., es3 - - Vt ID 4. *0 2. a 0 21 a W • • • 4. V .4 ta m a,-’ a g a o 4. . fl 0’ We * i-. maw, a. i : o t o a °it I • 10.4 + 0 • m . ij 1, a j 4. a •4’ r a .i a .. a a a o .a 1.4 4. .4 8 $ —‘ a tic • UI ci • r4 • 4, • 0 a 4i a oa 1: * 0 q4 4 14 — $ status quo 4 The status quo was that the petitioner was already in possession of the upatair. After perusing the complaint, a crime s registered as offences punishable under Sections 188, 448 and 506(2) T,P,0, 17. The petitioner and his family were summoned to the Police Station and they came at 1330 hours as per records, it looks very strange that after questioning the petitioner from 13—30 hours onwards, the 4th respondent c uld not fjnu out the ie1evant facts. It is stil strange that the petitioner might not have produced any documents to vindicate his posHion and that be would have simply held back these details so tt the 4th respondent could proceed an arrest him, I am also at a loss to understa how the 4th respondent could rest the petitioner and the entire family (excluding the minor daughter) When e1ier in Februy, 1997, with respect to similar dispute, the complaint of + 2d respondef refprv to s a civil dispIfA 18, The allegatIon in the complaint of 31—8—1997 shows an attempt by the petitioner and the members of his family to commit the offences by trespassing and to murder the 2nd respondent, The question of arrest of the offenders therein would arise only after —21— after the investigation under Section 157 of the Criminal Procedure Code, reveals materials to do so, The material averment in the statement of objections filed by the 4th respondent states as follows: 11 ..phe said complaint s recorded in the General Diary of the Raj aj iriagar Police Station on the very day and the same is