Karnataka High Court
Sri. Krishnappa. M. T vs State Of Karnataka on 6 October, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:36349
CRL.P No. 7702 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7702 OF 2023
BETWEEN:
1. SRI. KRISHNAPPA M. T. S/O SRI. THIMMAIAH,
AGED ABOUT 65 YEARS, R/AT. VIDYANAGARA,
TURUVEKERE TOWN, TURUVEKERE TALUK,
TUMKUR DISTRICT-572227.
2. SRI. JAFRULLA S/O BUDEN SAB,
AGED MAJOR,
R/AT SUBRAMANYA NAGAR,
TURUVEKERE TOWN & TALUK,
TUMKUR DISTRICT-572227.
3. SRI. MANJAPPA S/O VENKATAPPA,
AGED MAJOR,
HARIKARANA HOBLI,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572227.
Digitally 4. SRI. SURESHA S/O KANJUS RAMANNA,
signed by
VISHAL
VISHAL
NINGAPPA AGED ABOUT MAJOR,
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.10.11
TURUVEKERE TOWN & TALUK,
11:25:46
+0530 TUMKUR DISTRICT-572227.
5. SRI. SURESHA S/O HONNAPPA,
AGED MAJOR,
CHIEF SECRETARY,
TURUVEKERE TOWN,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572227.
... PETITIONERS
(BY SRI. BHARGAV G., ADVOCATE)
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NC: 2023:KHC:36349
CRL.P No. 7702 of 2023
AND:
1. STATE OF KARNATAKA,
BY TURUVEKERE POLICE,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560001.
2. SRI. PRITHAM,
POLICE SUB-INSPECTOR,
TURUVEKERE POLICE STATION,
TURUVEKERE TALUK,
TUMKUR DISTRICT-572227.
... RESPONDENTS
(BY SMT. YASHODHA K.P., HCGP)
THIS CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE
PETITIONER PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED
26.04.2021 PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND
JMFC TURUVEKERE IN C.C.NO.795/2021 TAKING COGNIZANCE AND
ISSUING PROCESS AGAINST THE PETITIONER FOR THE OFFENCE
P/U/S.51(b) OF DISASTER MANAGEMENT ACT 2005 AND SEC.269 OF
IPC THEN TRANSFERRED TO SPECIAL COURT FOR CRIMINAL CASES
RELATED TO ELECTED MPs AND MLAs VIDE SPL.C.C.NO.1360/2021
AND THEREAFTER TRANSFER OF THE SAME AND NOW PENDING ON
THE FILE OF THE 42nd ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE BENGALURU VIDE C.C.NO.30805/2021 (ARISING OUT
OF NIL PCR NO. /2021 AND VIDE GSC NO.PO1102210600239).
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court calling in question an order dated 26.04.2021 passed in C.C.No.795/2021, whereby, the learned Magistrate takes cognizance of the offence punishable under Section 51(b) of the Disaster Management Act, 2005 ('Act' for short) against -3- NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 the petitioners and registers a case and transferred to Special Court in Special CC No.1360/2021 and now pending on the file of the learned XLII Additional Chief Metropolitan Magistrate, Bengaluru in CC No.30805/2021. It is the act of taking cognizance is what drives the petitioners to this Court in the subject petition.
2. Heard Sri. Bhargav G., learned counsel appearing for the petitioners, learned HCGP Smt. Yashodha K.P. appearing for the respondents.
3. A crime comes to be registered on 23.04.2021 against the petitioners and others, alleging that they have held a Dharana in front of the office of the Circle Inspector, Turuvekere, which according to the complainant was unlawful. A complaint comes to be registered on the same day invoking Section 51 of the Act and the learned Magistrate on 26.04.2021 takes cognizance of the offence and registers C.C.No.795/2021 for the offence punishable under Section 51(b) of the Act. It is the order of taking of cognizance is what drives the petitioners to this Court in the subject petition.
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4. The learned counsel appearing for the petitioners would contend that the cognizance could not have been taken by the learned Magistrate of the offence, as it is contrary to Section 60 of the Act, which is mandatory for cognizance to be taken for the offence punishable under Section 51(b) of the Act. He would seek quashment of the proceedings.
5. The learned High Court Government Pleader on the other hand would seek to refute the submissions to contend that the charge sheet has already been filed and therefore, the further proceedings must be permitted to be continued, as the petitioners are guilty of violating the Act.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material available on record.
7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass, as to whether the learned Magistrate could have taken cognizance of the offence under Section 51(b) of the Act. To consider the said issue, it is -5- NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 germane to notice the said provisions. Section 51 of the Act deals with punishment for obstruction and read as follows:
"51. Punishment for obstruction, etc.--(1) Whoever, without reasonable cause-- --(1) Whoever, without reasonable cause--" (a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or (b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences.-6-
NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 Section 51(b) of the Act directs that whoever would refuse to comply with any direction given by or on behalf of the Government, as the case would be, become an offence under the Act. Section 60 of the Act deals with cognizance for the offences and reads as follows:
"60. Cognizance of offences.--No court shall take cognizance of an offence under this Act except on a complaint made by--
(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or
(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid."
(Emphasis supplied) Section 60(b) mandates that if cognizance has to be taken for an offence punishable under Section 51 of the Act, -7- NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 a person who is arrayed as accused should be given a notice of not less than 30 days, in the manner prescribed. The prescription is in terms of the Rules. Rules, i.e. the Disaster Management (notice of alleged offence) Rules, 2007. Rule 3 of the said Rules, reads as follows:
"3. Notice of alleged offence and intention to make a complaint .--A notice under clause (b) of section 60 of the Act by a person, of the alleged offence and his intention to make a complaint shall be delivered to, or left at, the office of one of the following--
(a) in the case of the Central Government, except where the complaint relates to a railway, the Secretary incharge of the concerned Ministry or the Department in that Government; -
b) in the case of the Central Government where the complaint relates to a railway, the General Manager of that railway;
(c) in the case of State Government, the Secretary incharge of the concerned Department in that Government;
(d) in the case of the National Authority, the Secretary or, if there is no Secretary, the Additional Secretary, of the National Authority;
(e) in the case of a State Authority, the Chief Executive Officer of the State Authority;-8-
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(f) in the case of a District Authority, the Chief Executive Officer of the State Authority." The Rule mandates that a notice under Section 51(b) of the Act by any person should be alleged and his intention to make a complaint shall be delivered too or left at the office or one of the following. The ingredients are narrated from (a) to (f). Therefore, there is prescription under the Rules for what action should be taken under Section 60(b) of the Act.
8. On the bedrock of the aforesaid principals, the case at hand requires to be noticed. The incident takes place on 12.04.2021 and the crime is registered on 23.04.2021 for the offence punishable under Section 51(b) of the Act. The learned Magistrate takes cognizance of the offence on 26.04.202. The order of the learned Magistrate taking cognizance reads as follows:
"The present private complaint is filed U/s 200 of CRPC R/w Sec.60(a) of DM Act of 2005, by the PSI of Turuvekere Police Station. The complainant is present.
The complainant is the public servant who is filed the present complaint u/s 200 of CRPC for the offence -9- NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 Punishable Under Sec.51(b) of DM Act of 2005 and Sec.269 of IPC.
In view of the present declaration of Covid-19 guideline, the PSI of concerned police station is authorized to file a private complaint for disobedience of provisions of DM Act of 2005. Therefore, the present complaint is filed by the PSI of complainant police as provided under Sec.60(a) of DM Act 2005.
Perused the same and having satisfied with the material to proceed, cognizance is taken for the offence punishable Under Sec. 51(b) of DM Act of 2005 and Sec.269 of IPC.
The present complaint is in writing and made by the public servant. So as provided Under Sec.200(a) of CRPC the sworn statement of the public servant is to be dispensed.
In view of the same recording of sworn statement of the complainant is hereby dispensed in this case.
Office to register as CC and issue summons to the accused r/by:17-07-2021."
The learned Magistrate prior to taking cognizance ought to have noticed the rigor of Section 60(b) as to whether a notice has been issued to the accused in terms of Rule 3 of the said rules, ostensibly the said procedure is not followed
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NC: 2023:KHC:36349 CRL.P No. 7702 of 2023 by the learned Magistrate, which is in contravention of provisions of law i.e. Section 60 of the Act and Rule 3 of the said Rules.
9. In the light of it being contrary to law, it is rendered unsustainable. The unsustainability of it would lead to its obliteration.
10. For the aforesaid reasons, following ORDER i. Criminal petition is allowed.
ii. The order dated 26.04.2021 passed in C.C.No.795/2021 on the file of learned Senior Civil Judge and JMFC, Turuvekere, transferred and now pending on the file of the learned XLII Additional Chief Metropolitan Magistrate, Bengaluru in CC No.30805/2021 stands quashed qua the petitioners.
Sd/-
JUDGE kmv ct:bck