Bangalore District Court
State By Rural Police Station vs Sri Sharanaiah Rachaiah Hiremath on 31 January, 2019
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH82)
Dated: This the 31st day of January, 2019
Spl. CC No. 515 of 2018
-: Present :-
Sri B.V.PATIL, B.Com., LLB., (Spl)
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Complainant :- State by Rural Police Station, Bellary
(Represented by Public Prosecutor)
V/s
Accused:- 1. Sri Sharanaiah Rachaiah Hiremath
S/o Rachayya
Aged about 36 years
Near Kannada School, Lakshminagar
Behind APMC-II,
Hunugunda Taluk
Bagalkot
2. Sri Shivaraj Tangadai S/o Sangappa
Tangadagi, Aged about 47 years
R/at: Allampura Peta,
Ilakal Village, Hunugunda Tq.,
Bagalkot
3. Sri Pradeep A.K. S/o Kariyappa
Aged about 25 years
R/at: 1st Main, Saraswatipuram
Bengaluru By-pass Road
Chitradurga
2 Spl.CC No.515/2018
4. Ramappa S/o Mariyappa
Aged about 57 years
State Convener, SC Wing, KPCC
R/at: Neralagunta village
Challakere Tq.,
Chitradurga
Date of offence 13.08.2014
Date of report of offence 13.08.2014
Name of the complainant Sri G.B.Devaraj
Date of commencement of 27.11.2018
recording of evidence
Date of closing of evidence 07.01.2019
Offences complained of Sec. 171(H) of IPC
Opinion of the Judge Accused are found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri Amar Corea, Adv for Accused
JUDGMENT
Bellary Rural P.S., Bellary filed charge sheet against accused for the offences punishable U/s.171(H) of IPC before the II Addl.Civil Judge and JMFC, Bellary, who registered a case in CC No.669/2015.
2. The brief facts of the case of the prosecution are that;-
"During the Bye Elections held in the year 2014 for Bellary Rural Assembly Constituency, the complainant was the head of the 3 Spl.CC No.515/2018 MCC-3 team, on 13.8.2014 he received information that the workers of the Indian National Congress Party are undertaking canvass in Sanganakallu village, the complainant and other members of MCC team went to Sanganakallu village, at 11.30 a.m. accused No.2 and 4 along with Congress party workers canvassing at Harijan Colony, number of vehicles were parked, when they verified as to whether necessary permission was obtained for using said vehicles for the purpose of election by the Electoral Authority, they found that no such permission was obtained, the Accused No.1-driver of the Fortuner Car bearing KA-02-MH-468 and accused No.3 driver of Toyota Innova Car bearing No.KA-16-M-8568 on enquiry informed that they do not possess any permission issued from the Electoral Officer, the complainant found that these vehicles were illegally used for the purpose of election without obtaining necessary permission and incurred expenditure in support of the candidate contested for the election. After seizing both vehicles through panchanama, he lodged complaint before the Bellary Rural Police. On the basis of such a complaint, Bellary Rural Police registered a case in Cr.No.288/2014 under Sec.188 and 171(H) of IPC, the Investigation Officer investigated the case, filed the charge sheet against the accused for the offence punishable U/s. 171H of IPC." 4 Spl.CC No.515/2018
3. On receipt of the charge sheet, the learned II Addl. Civil Judge and JMFC, Bellary, after securing the presence of the accused, enlarged the accused on bail. Copy of charge sheet was furnished.
4. Meanwhile, in view of the notification issued by the Government of Karnataka bearing No.LAW 10 LCE 2018 dt.8.2.2018 and letter No.RSB 288/2017 dt.26.2.2018 of Hon'ble High Court of Karnataka, after establishing special court i.e., LXXXI Addl. City Civil and Sessions Judge Court, Bengaluru, exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka, as accused No.2 in the case was elected MLA, the case was transferred to this Court. On receiving the records, the case was re-numbered as Special CC No.515/2018.
5. On service of Court notice, accused appeared before this Court through their Advocate. Plea was read over and explained to the accused in the language known to them, who denied the plea and claims to be tried. In order to prove its case, the prosecution in all cited nine witnesses in the charge sheet, out of them CW1 to 4, 6 to 9 were examined as PW1 to 8 and got marked fifteen documents as Ex.P.1 to 15. The examination of CW5 was given up by PP. 5 Spl.CC No.515/2018 Prosecution side was closed. Statement of accused under Sec.313 of Cr.P.C., was recorded. The defence of the accused is one of total denial.
6. I heard the arguments of the learned Public Prosecutor for the State and learned advocate for the accused.
7. The point that arises for the consideration of this Court are:-
1. Whether the prosecution proves beyond all reasonable doubt that during the Bye Assembly Elections for Bellary Rural Constituency held in the year 2014, on 13.8.2014 at about 11.30 a.m. at Harijan Keri, in Sanganakallu village, accused No.1 and 2 in Fortuner car bearing No.KA-02-MH-468 and accused No.3 and 4 in Toyota car bearing No. KA-16-M-8568, were canvassing on behalf of Sri N.Y.Gopalakrishna, who was candidate of Congress Party, without obtaining permission from the Electoral Officer for using said vehicles and failed to account the expenses, violated the Election Code of Conduct, thereby committed an offence punishable U/s. 171H of IPC?
2. What order?6 Spl.CC No.515/2018
8. My findings on the above points are as under;
Point No.1: - In the Negative Point No.2: - As per the final order, for the following;
REASONS
9. Points No.1: Before appreciating the evidence adduced by the prosecution it is quite necessary to refer the case of prosecution in a nut shell:-
"During the Bye Elections held in the year 2014 for Bellary Rural Assembly Constituency, the complainant was the head of the MCC-3 team, on 13.8.2014 he received information that the workers of the Indian National Congress Party are undertaking canvass in Sanganakallu village, the complainant and other members of MCC team went to Sanganakallu village, at 11.30 a.m. accused No.2 and 4 along with Congress party workers canvassing at Harijan Colony, number of vehicles were parked, when they verified as to whether necessary permission was obtained for using said vehicles for the purpose of election by the Electoral Authority, they found that no such permission was obtained, the Accused No.1-driver of the Fortuner Car bearing KA-02-MH-468 and the Accused No.3-driver of 7 Spl.CC No.515/2018 Toyoto Innova Car bearing No.KA-16-M-8568 on enquiry informed that they do not possess any permission issued from the Electoral Officer, the complainant found that these vehicles were illegally used for the purpose of election without obtaining necessary permission and incurred expenditure in support of the candidate contested for the election, after seizing both vehicles through panchanama, he lodged complaint before the Bellary Rural Police. On the basis of such a complaint, Bellary Rural Police registered a case in Cr.No.288/2014 under Sec.188 and 171(H) of IPC, the Investigation Officer investigated the case, filed the charge sheet against the accused for the offence punishable U/s. 171H of IPC."
10. In order to prove its case, prosecution examined the complainant G.B.Devaraj as PW1 who deposed before this Court that in the year 2014 during the bye elections held for Bellary Rural constituency, he was appointed as a team leader of MCC Team consisting of himself, CW4 and 5, he received a credible information that on 13.8.2014 at 11.30 a.m. election canvas is undertaken at Harijan keri in Sanganakallu village, accordingly, himself and other members of the MCC team-3 went to the spot and found that accused No.1 to 4 are using one Toyota Fortuner and one Toyota 8 Spl.CC No.515/2018 Innova Cars for the purpose of canvassing in the Election, when enquiry was held with the drivers of the above said vehicles regarding the permission obtained for using the vehicles for the purpose of election, they did not produce the same. In the presence of CW2 and 3 he seized both the vehicles as per panchanama Ex.P.1, thereafter lodged the complaint Ex.P.2, the photos taken are at Ex.P.3 to 10. During the cross-examination this witness categorically admitted that accused No.1 and 3 being the drivers of the respective vehicles, stated that on receiving the information that accused No.2 and 4 are available at Sanganahallu village, they came to the village with the vehicles to meet them. Furthermore, it was also admitted that either in the complaint or in the panchanama he never stated that these vehicles are used for the purpose of election work. On perusal of the evidence of PW1 nowhere this witness deposed that the vehicles were used for the purpose of election without obtaining the permission. The contents of the panchanama and complaint clearly indicate, that when the complainant and his team members had been to Sanganakallu village, these vehicles are parked on one side of the village, the same were seized as per panchanama Ex.P.1. Therefore, the 9 Spl.CC No.515/2018 evidence of PW1 does not come to the help of the prosecution in any manner.
11. PW2 Nagappa and PW3 Ramanna are the pancha witnesses for seizure of vehicles as per panchanama Ex.P.1, both witnesses have turned hostile and did not supported the case of prosecution. Though elaborate cross-examination was made nothing has been elicited in their evidence that both the vehicles were seized in their presence as per panchanama Ex.P.1.
12. PW4 Pandurangarao deposed before this Court that in the year 2014 he was the member of MCC-3 team for the Bye Elections held at Bellary Rural Constituency. CW 1 and 5 are the other members of the team. He received information that on 13.8.2014 at 11.30 a.m. on behalf of Indian National Congress Party, canvass is being held at Harijankeri in Sanganakallu village, himself and other members came to Sanganakallu village, found that accused No.2 and 4 along with his party workers were canvassing on behalf of the candidate contested from Congress Party. When the head of MCC team, enquired about the permission letter with the drivers of the Vehicles baring No.KA-02-MH-468 and KA-16-M-8568, they did not produce permission letter issued for the purpose of 10 Spl.CC No.515/2018 using the vehicles in election, both the vehicles were seized through a panchanama in the presence of CW2 and 3, vehicles were produced before the Police. CW1 lodged the complaint against the accused. During the cross-examination this witness categorically admitted that when they had been to the spot, the vehicles were parked on one side of the village by the drivers, on enquiry with accused No.1 and 3, they informed that on receiving a message that accused No.2 and 4 had been to Sanganakallu, they brought the vehicles to meet them.
13. PW5 and 6 who are the eye witness to the incident turned hostile did not supported the case of prosecution. PW7 the owner of the Innova car bearing No.KA-16-M-8568 turned hostile did not supported the case. Though elaborate cross-examination was made, nothing has been elicited in the evidence of PW5 to 7 that these vehicles were used by the accused for the purpose of election without obtaining permission from the Electoral Officer.
14. PW8 K.Hosakerappa deposed before this Court that on 13.8.2014 evening at 5.30 p.m. CW1 came to the police station, submitted a computer typed complaint, on examination he registered a case in Cr.No.288/2014 under Sec.171H and 188 of IPC sent the 11 Spl.CC No.515/2018 FIR to the JMFC and to his superior officers. Complainant produced the pannchanama through which he seized two vehicles. On the same day he recorded further statement of the complainant and statement of CW4 and 5. On 14.8.2014 the statement of CW6 and 7 was recorded. On 19.8.2015 both the vehicles were released as per the order of Hon'ble Court, statement of CW8 was recorded, Photos Ex.P.3 to 10 were taken, the relevant records from the office of the Deputy Commissioner as per Ex.P.15 was collected, on completion of the investigation, he filed charge sheet against the accused.
15. On perusal of the prosecution papers makes it very clear that on the complaint lodged by the complainant a case was registered in Cr.No.288/2014 for the offences punishable U/s. 171H and 188 of IPC.
16. It is quite necessary to refer Sec.195 of Cr.P.C., and also Sec.171H of IPC which read as under:-
Section 195 in The Code Of Criminal Procedure, 1973
195. Prosecution for contempt of lawful authority of public servants, for offences against 12 Spl.CC No.515/2018 public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a 13 Spl.CC No.515/2018 document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term"
Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-
section (1), a Court shall be deemed to be 14 Spl.CC No.515/2018 subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
Section 171H in The Indian Penal Code 171H. Illegal payments in connection with an election.--Whoever without the general or special authority in writing of a candi-date incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publi-cation, or in any other way 15 Spl.CC No.515/2018 whatsoever for the purpose of promot-ing or procuring the election of such candidate, shall be pun-ished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were in-curred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
17. On plain reading of Sec.195 of Cr.P.C., makes it clear that there is statutory bar to the Court for taking cognizance for the offences punishable U/s. 172 to 188 of IPC, unless the complaint is filed in writing made by the public servant concerned or some other public servant to whom he is administratively subordinate. Admittedly, in this case no complaint in writing under Sec.200 of Cr.P.C., was filed by the public servant concerned or some other public servant to whom he is administratively subordinate. The documents produced by the prosecution discloses that the complainant filed complaint before the SHO, Bellary Rural Police station, on which without obtaining permission from the learned Magistrate, the Investigation Officer registered a case, investigated 16 Spl.CC No.515/2018 the same, filed charge sheet against the accused, which is clearly contradictory to Sec.195 of Cr.P.C., and also under Sec.155(2) of Cr.P.C., which also clearly bars the Police Officer from registering a case and investigating the same in non-cognizable case without the order of Magistrate having power to try such case or committing the case for trial.
18. Hon'ble Supreme Court in a decision reported in AIR 1962 SC 1206 (Daulat Ram Vs. State of Punjab) held as follows:-
"The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant, namely, the Tahasildar in this case. The trial was thus without jurisdiction ab-initio and the conviction cannot be maintained."
19. On perusal of the prosecution papers makes it very clear that the offence punishable U/s. 171H of IPC being a non- cognizable offence classified under schedule-I of the Cr.P.C., when the said offence is classified as non-cognizable offence, Sec.155(2) Cr.P.C., bars the police to investigate such a matter without valid permission from the jurisdictional Magistrate, the provisions of 17 Spl.CC No.515/2018 Sec.155(2) of Cr.P.C., clearly depicts that "information as to non- cognizable cases and investigation of such cases and sub Sec.2 specify that no police officer shall investigate a non-cognizable case without the order of a Magistrate, having power to try to such case, or commit the case for trial.
20. Hon'ble Apex Court in case of M.S.Ahlawat Vs. State of Haryana, reported in 2000 (1) SCC 278 held that the provision of Sec.195 of Cr.P.C., are mandatory, no Court shall have a jurisdiction to take cognizance of the offences mentioned therein unless there is a complaint in writing as required under the said provision.
21. Admittedly in this case, the Investigation Officer after registering the case, not taken permission from the Magistrate having a power to try such case, when the offence alleged against the accused is non-cognizable. Therefore, the very Court had no jurisdiction to take cognizance of the offence punishable U/s.171H of IPC. Secondly, the public servant has not lodged any complaint before the Jurisdictional Magistrate as contemplated under Sec.195 Cr.P.C., being mandatory for the offences alleged to have been committed, under Sec.188 of IPC. Therefore, the very taking of 18 Spl.CC No.515/2018 cognizance against those offences by the learned Magistrate, is illegal and incorrect.
22. From the allegations found in the charge sheet, it cannot be held or construed that an offence punishable U/s.171(H) of IPC would be attracted, in as much as there is absolutely no material placed by the prosecution about candidate having incurred any expenditure for the purpose of holding any meeting or had authorized any expenses to any third party to hold such meeting. In the absence of such allegations either in the complaint or in the evidence adduced by the prosecution i.e., candidate has incurred expenses and has not accounted for and no permission had been obtained to incur such expenses, it cannot be again said by the prosecution that the offence punishable U/s. 171H of IPC is attracted or could be invoked against the accused.
23. On perusal of evidence of PW1 to 7, their evidence suffers from material contradictions and discrepancies, the evidence of complainant PW1 does not corroborated with the evidence of PW4 to PW7 who have shown their total hostility towards the case of prosecution. None of the witnesses examined deposed that the accused No.2 and 4 being the leaders of Congress Party, without 19 Spl.CC No.515/2018 general or special authority in writing of a candidate, incurred expenditure for the purpose of promoting or procuring the election of the accused. None of the witnesses deposed that on that day the accused used the above said vehicles for the purpose of canvassing in the election at Sanganakallu village. The evidence of prosecution does not prove that the accused have committed the offence punishable U/s.171(H) of IPC. The evidence produced by the prosecution suffers from material contradictions and discrepancies which is insufficient to hold that the accused have committed the offences as alleged in the charge sheet. Absolutely there is no iota of evidence produced by the prosecution to prove its case. Accordingly, I answer points No.1 in the negative.
24. Point No.2: In view of my findings on points No.1, I proceed to pass the following final order:-
ORDER Accused are found not guilty of the offence alleged against them punishable U/s.171(H) of IPC. Accordingly, exercising the power under Section 255 (1) of Cr.P.C., accused are acquitted.20 Spl.CC No.515/2018
The bail bond of the accused and that of their sureties shall stand cancelled.
(Dictated to the Judgment Writer directly on computer, typed by him, same is corrected by me and then pronounced in the Open Court on this the 31st day of January, 2019) (B.V.Patil) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) ANNEXURE:
Witnesses examined by the prosecution.
PW1 G.B.Devaraj PW2 Nagappa PW3 Ramanna PW4 Pandurangarao PW5 Mustaf Ali PW6 Palakshigowda PW7 Thippeswamy PW8 Hosakere
Witnesses examined by the defence/accused. -- NIL Documents exhibited by the prosecution.
Ex.P.1 Mahazar
Ex.P.2 Complaint
Ex.P.3-10 Photos
Ex.P.11 Statement of PW5
Ex.P.12 Statement of PW6
Ex.P.13 Statement of PW7
Ex.P.14 FIR
Ex.P.15 Copy of order of formation of surveillance teams
21 Spl.CC No.515/2018
Documents exhibited by the defence/accused. - NIL List of Material Objects marked by the prosecution - Nil LXXXI ACC & SJ, Bengaluru City (CCH-82) Rrk.