- 1 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 888 OF 2022 BETWEEN: SRI. DEVARAJU, S/O LATE SRI. BASAVALINGAIAH, AGED ABOUT 50 YEARS, R/O KALNAYAKANHALLI VILLAGE, HUTRIDURGA HOBLI, KUNIGAL TALUK, TUMKURU DISTRICT - 572 130. …PETITIONER (BY SRI. SIDDESHWAR PRASAD S. KABBUR, ADVOCATE FOR SRI. KABBUR SIDDESHWAR PRASAD SADASHIVAPPA, ADVOCATE) AND: 1. THE STATE BY KUNIGAL POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU - 560 001. 2. SRI. PRASAD K.G @ BABU S/O SRI GANGADHARAIAH AGED ABOUT 36 YEARS, R/O KALNAYAKANHALI VILLAGE, HUTRIDURGA HOBLI, KUNIGAL TALUK TUMKURU DISTRICT - 572 130. 3. SRI. MALLESHA H S S/O SRI. SHIVANNA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 AGED ABOUT 32 YEARS, R/O ALKERE HOSAHALLI VILLAGE, HUTRIDURGA HOBLI, KUNIGAL TALUK TUMKURU DISTRICT - 572 130. …RESPONDENTS (BY SRI. M. DIVAKAR MADDUR, HCGP FOR R1; SRI. M.N. MADHUSUDHAN, ADVOCATE FOR R2; SRI. SUNIL KUMAR PATEL, ADVOCATE FOR R3) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO A. SET ASIDE THE ORDER DATED 04.03.2022 AND 12.05.2022 PASSED IN C.C.NO.70/2022 (VIDE ANNEXURE-A AND B) BY THE HONBLE PRINCIPAL CIVIL JUDGE AND JMFC KUNIGAL. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel appearing for the petitioner; learned High Court Government Pleader appearing for respondent No.1 and learned counsel appearing for respondents No.2 and 3. 2. The challenge made in this revision petition is discharging the accused persons by allowing the application filed under Section 239 of the Cr.P.C. for the offences - 3 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 punishable under Sections 448, 427, 504 and 506 of the Indian Penal Code, 1860 ('the IPC' for short). 3. The factual matrix of the case of the prosecution is that old tiled roofed house existing in old Kaneshumari No.94, new katha No.101, which is alleged to be belongs to the first informant and the same is allotted to the share of his father and on 15.10.2021, at about 5.30 p.m., the accused person illegally trespassed into the said house and demolished the said tiled roof house with the JCB and the same is witnessed by his father-in-law. When the first informant questioned the same, the accused persons started to quarrel and scolded him and his wife with filthy language and threatened his life. Based on the said allegation made in the complaint, case was registered and investigated the matter and filed the charge sheet invoking Section 173 of the Cr.P.C. The accused persons have filed the application seeking for discharge contending that there is no prima facie case made out against the petitioner. He further contended that prior to this complaint, the first informant himself lodged another complaint narrating different story on 17.10.2021, after due verification the complainant PS closed the complaint by issuing NCR. The allegation made in the - 4 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 complaint dated 17.10.2021 and the present complaint dated 19.10.2021 are totally different. According to the report filed by the panchayath officials the alleged property, which is said to be demolished by the accused persons does not belong to the complainant i.e. first informant. Such being the case, the question of offence invoking Sections 448 and 427 does not arise at all. This application was registered by the State by filing objections wherein it is stated that after completion of investigation, the complainant - PS leveled charge sheet against the accused persons as there is a counter case by the accused persons against CW-1 to CW4 and the accused persons are not entitled for discharge from the alleged offences. Hence, prayed the Court for dismissal of the application. 4. The Trial Court having considered the grounds urged in the application and the documents produced by the accused and also considering the material collected by the Investigating Officer has come to a conclusion that the I.O. did not verify the records properly and prima facie it appears that without verifying the records, the complainant - PS leveled charge sheet against the accused persons and also taken note of the document produced by the accused i.e. copy of the letter - 5 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 moved by the accused to the PDO - Yeliyur Grama Panchayath wherein it was requested to identify and verify the property with regard to ownership of the property. In turn, the PDO has filed his report on 20.11.2021 stating that after due verification by the Panchayath officials along with police staff it is found that the property katha No.101 is the property of complainant, where he is residing and the boundaries to the said property is certified. The boundaries mentioned to the alleged demolished property in the mahazar report differs from each other. Being aggrieved by the order considering the documents, allowing the application and discharging the petitioner, the present revision petition is filed before this Court. 5. The main contention of the learned counsel appearing for the petitioner is that while considering the discharge application, the trial Court ought not to have considered the documents which have been produced by the accused. He submits that those documents could be considered at the time of trial and defence cannot be considered at the time of considering the discharge application. The trial Court ought to have taken note of the statement of - 6 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 witnesses particularly the statement made by CW-1 and CW-2 regarding threat and also 161(3) statement which was recorded in respect of CW-1 to CW-3 and copy of which are produced at Annexure -J1 to J3 along with the spot mahazar at Annexure - K and property extract and demand registering in respect of the property 101 are produced at Annexure -L and M. The learned counsel also contended that the damage caused to the house property is assessed at Annexure -N, N1 and N2 and when such materials are available before the Court, trial Court ought to have taken note of the said material and instead of considering the documents produced by the accused, the trial Court ought not have considered the documents produced by the accused at the time of discharge and hence, committed an error. The learned counsel also brought to the notice of this Court the statement of JCB driver, who himself made the statement in terms of Annexure - J3 that respondent No.2 only called him to demolish the building claiming that the share belongs to him and as per his instructions only he demolished the building. The fact that building is demolished is not in dispute. The only consideration whether the demolished property belongs to the complainant or accused has to be - 7 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 considered at the time of trial and not at the time of discharge application and hence, trial Court committed an error. 6. Per contra, learned counsel for respondents No.2 and 3 would contend that the trial Court having considered the material on record comes to the conclusion that the complainant - PS erroneously filed the charge sheet without looking into the material on record and also did not verify whether the property which was subjected for demolition belongs to the complainant or not and hence, rightly taken note of the same and comes to the conclusion that trial Court committed an error, particularly in paragraph 17 of the order and hence, it does not requires any interference. 7. The learned counsel appearing for the State would contend that the I.O. collected the material and recorded the statement of witnesses. The statement of eye witnesses also categorically stated that they demolished the building, which was in existence and mahazar with regard to the demolishing of the building was also conducted. It is also brought to the notice of this Court that documents at Annexures-Q to Q4, which are produced by the petitioner evidence the fact that - 8 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 building was demolished, and trial Court committed an error in discharging the same. 8. Having heard the learned counsel appearing for the petitioner and learned counsel appearing for the respondents, the point that would arise for consideration by this Court are: 1. Whether trial Court committed an error in discharging the accused? 2. Whether the order of the trial Court referring the documents of the accused and discharging the accused persons suffers from illegality and correctness ? 3. What order? 9. Having heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondents and also on perusing the material on record, the I.O. registered the case based on the complaint and investigated the matter and filed the charge sheet for the offence punishable under Sections 448, 427, 504 and 506 of the IPC. The records also disclose that I.O. during the course of investigation recorded the statement of witnesses, particularly the witnesses who made the statement i.e. complainant - CW-1 and other witnesses CW-2 and CW-3. The same is placed before the Court as Annexure - J series - 9 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 including statement of the driver of the JCB, who involved in demolishing the building as Annexure -J3. The spot panchanama and copy of the property extract are produced as Annexure -K, L and M. The documents evidencing the fact that building was demolished are produced as Annexures Q to Q4. 10. The learned counsel appearing for the petitioner brought to notice of this Court that while discharging the accused persons, the trial Court committed an error by considering the document produced by the accused at paragraph No.16 and reference was made that on keen perusal of the documents furnished by the accused and prosecution it is found that the disputed property Khaneshumari No.94, new No.101 is originally belongs to father of complainant i.e. one Devaraju. The accused without having any right over the same, illegally trespassed and demolished the same. By that, the accused has committed irreparable loss to the complainant. 11. On perusal of the prosecution material it is noted that without verifying the ownership over the property, the Police Sub-Inspector leveled the charge sheet and also on - 10 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 perusal of discussion with regard to the document furnished by the accused at paragraph No.17 i.e. the letter issued by the PDO and having perused the observation made by the trial Court, it is very clear that fundamental error was committed by the trial Court while looking into the documents produced by the accused at the time of discharge. It is settled principle of law that at the time of considering the discharge application, the Court has to consider the material collected by the I.O. and not any other material and defence documents of the accused and those defence documents could be considered only at the time of trial and hence, the trial Court committed fundamental error in considering the documents, which are produced by the accused and also reference was made in paragraph Nos.16 and 17 wherein it has come to the conclusion that the charge sheet filed by the I.O. prima facie appears that without verifying the records, the charge sheet is filed and the said observation is erroneous and discharging the accused considering the documents, which have been produced by the accused is also erroneous and hence, the order passed by the Trial Court suffers from legality and correctness and hence it requires - 11 - NC: 2025:KHC:8339 CRL.RP No. 888 of 2022 interference by exercising the powers and hence, I answer the point as affirmative. 12. In view of the discussions made, I pass the following ORDER: i) Criminal revision petition is allowed. ii) Impugned order passed by the trial Court in discharging accused No.1 is hereby set aside. Sd/- (H.P.SANDESH) JUDGE JY List No.: 1 Sl No.: 42 CT: BHK