Bangalore District Court
Hagari Bommanahalli Ps vs Nemiraj Naik on 27 February, 2024
1 CC.No.30670/2022
KABC030764892022
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 27th day of February, 2024.
:Present:
Smt. PREETH. J., B.A.L., LLB.,
XLII Addl.CMM Judge,
(Spl. Court for trial of cases filed against sitting as
well as former MPs/MLAs,
triable by Magistrate in the State of Karnataka)
CC.No.30670/2022.
(Old CC.No.408/2022)
Complainant: State by the Hagaribommanahalli Police
Station, Hagaribommanahalli Circle,
Vijayanagara.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: 01. Namiraja Naik K.,
S/o.Late.Kashya Naik, 50 Years,
R/o.Ex.MLA, Cart Street, 18 th Ward,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
02. Pawadi Manjunatha B.,
S/o.Sanna Hanumanthappa, 22 Years,
R/o.Aralihalli, Ramanagar, Hagari
Bommanahalli,Vijayanagara.
03. Pawadi Hanumanthappa B.,
S/o.B.Baalappa, 51 Years,
R/o. Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
2 CC.No.30670/2022
04. Byati Nagaraja,
S/o.Ramappa, 32 Years,
R/o.Kadalebalu Village, Hagari
Bommanahalli, Vijayanagara.
05. Rehaman,
S/o.Mabu Sab, 32 Years,
R/o.Near Padmavathi Rice Mill,
Kodligi Road, Hagari
Bommanahalli, Vijayanagara.
06. Jagadhish G.M.,
S/o.Pampaiah G.M., 34 Years,
R/o.Vivekanda Nagara, Old Hagari
Bommanahalli, Vijayanagara.
07. Mruthyunjaya Badami,
S/o.C.M.Badami, 51 Years,
R/o.Opposite Laxmi Lodge,
Nethaji Road, Hagari
Bommanahalli, Vijayanagara.
08. Pakkirappa M,
S/o.M.Nagappa, 34 Years,
R/o.Near Padmavathi Rice Mill,
Aralihalli, Hagari Bommanahalli,
Vijayanagara.
09. Kiran,
S/o.Parashurama, 22 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
10. Prakash H.,
S/o.H.Kotresh, 22 Years,
R/o.Soniagandhi Nagara, Hagari
Bommanahalli, Vijayanagara.
3 CC.No.30670/2022
11. Kolli Prakash,
S/o.Kolli Govindappa, 29 Years,
R/o.Beside Padamavathi Rice Mill,
Janatha Colony, Hagari Bommanahalli,
Vijayanagara.
12. Kolli Govindappa,
S/o.Mari Hanumanthappa, 55 Years,
R/o.Beside Padamavathi Rice Mill,
Arahalli, Hagari Bommanahalli,
Vijayanagara.
(The case against A.12 is abated vide order dated:13-09-2023)
13. Kolli Ramesha,
38 Years, R/o.Beside Mazid,
Arahalli, Hagari Bommanahalli,
Vijayanagara.
14. Hulugappa B.,
24 Years, R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
15. Mareppa,
38 Years, R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
16. Doddamane Mahammad Rafi,
S/o.Ibraim Sab, 31 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
17. Kariyappa C.,
S/o.C.Goneppa, 33 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
18. Karim Sab,
S/o.Ismail Sab, 47 Years,
R/o.Ballahunise Village, Hagari
Bommanahalli, Vijayanagara.
4 CC.No.30670/2022
19. Akbhar Bhasha H.,
S/o.H.Alla Bhakshi, 29 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
20. Imthiyaz,
S/o.Rajabhakshi, 22 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
21. Keerti Nayak K.,
S/o.K.Sannappa, 28 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
22. Mahammad Riyaz,
S/o.Dada Sab, 35 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
23. Nasurulla B.,
S/o.B.Dada Sab, 32 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
24. Sanna Hanumanthappa,
S/o.Late.Kariyappa, 46 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
25. Abhishek D.,
S/o.D.Venkatesh, 25 Years,
R/o.Aralihalli, Ward No.22,
Ramanagar, Hagari Bommanahalli,
Vijayanagara.
5 CC.No.30670/2022
26. Rahul Kumar,
S/o.Ratna Naik S.R., 25 Years,
R/o.KVOR Colony Someshwara
Nagar, Hagari Bommanahalli,
Vijayanagara.
(By A.1, 2, 4 to 13, 24,25, 26 Sri.SBM & A.3, 14 to 23 Sri.NBG Advocates)
1. Date of commission of offence : 27.12.2021.
2. Date of report of offence : 28.12.2021.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 21.10.2022.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Sri.Srikanta N.
5. The date of recording of evidence : 05.07.2023.
6. The date of closing of evidence : 17.02.2024.
7. Offences complained of : U/s.143,147,171(c)
188, 353, 504, R/w.
S.149 of IPC & S.131
& 132 of RP Act.
8. Opinion of the Judge : Accused found
not guilty.
=============
JUDGMENT
01. That the Police Sub-Inspector, Hagaribommanahalli Police Station, Hagaribommanahalli Circle, Vijayanagara has filed charge sheet against the Accused No.1 to 26 for the offences punishable under section 143, 147, 171(c), 188, 353 and 504, R/w section 149 of IPC and section 131 and 132 of Representation of 6 CC.No.30670/2022 People Act, 1950, 1951, 1989, (Herein after referred as the 'R.P. Act').
02. The case of the prosecution in brief is as follows:
On 27.12.2021 at 03-10 p.m., at Booth No.22 which is set-
up at Urdu Primary School, Haralihalli, the Accused No.1 to 26 formed an unlawful assembly with common object of committing the offences and entered the Prohibited Area where white chalk mark was drawn on the Public Road within 100 meters of Polling Booth No.22, with an intention of attracting the voters and influence them in voting Accused No.2 who is contesting for the Election from BJP. It is alleged that the Accused have obstructed CW-11 and 12, who were on duty in the said Polling Booth by man handling them and by disobeying their advisory instructions.
It is alleged that the Accused have abused CW-11 and 12 in filthy language and then tress-passed into the Polling Booth and with an intention of obstructing CW-6 to 8 from performing their Election Duty, they were attacked by acting in a way that made them afraid and restrained them from performing their duty. It is also alleged that by doing so the Accused have violated the By -
Election Model Code of Conduct and thereby committed the 7 CC.No.30670/2022 offences punishable under section 143, 147, 171(C), 188, 353 and 504, R/w section 149 of IPC and section 131 and 132 of R.P.Act.
03. On the basis of the complaint of CW-1, the case has been registered under Cr.No.238/2021 against the Accused No.1 to 26 for the offences punishable under section 143, 147, 171(C), 188, 353 and 504, R/w section 149 of IPC and section 131 and 132 of R.P.Act. Thereafter, on completion of the investigation charge sheet has been filed against the Accused Persons. On receipt of charge sheet, the court took cognizance of the said offences.
04. On appearance of the Accused Persons, they were enlarged on bail. The copies of the prosecution papers were furnished to the Accused Persons as contemplated under section 207 of Cr.P.C. Thereafter, heard evidence before charge and framed charges, read over and explained to the Accused Persons in the language known to them for the above said offences. They have not pleaded guilty and claimed to be tried. Hence, the matter was posted for evidence. During the trial, Accused No.12 is reported to be dead. Hence, the case against him is abated vide order dated:13-09-2023.
8 CC.No.30670/2022
05. In order to bring home the guilt of the Accused Persons, the prosecution has examined 17 Witnesses as PW-01 to 17 and got marked 27 documents as Ex.P.01 to Ex.P.27. After closure of the prosecution evidence, the Accused Persons were examined under section 313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The Accused Persons have denied their involvement in the crime and did not choose to lead any defence evidence on their behalf.
06. I have heard the arguments addressed by the learned Sr. Assistant Public Prosecutor and the learned counsel for the Accused.
07. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 27.12.2021 at 03-10 p.m., at Booth No.22, the Accused No.1 to 26 being the members of unlawful assembly have entered the Prohibited Area with a common object of committing the offence and thereby committed the offence punishable under section 143 R/w. section 149 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common 9 CC.No.30670/2022 object of committing the offence have committed rioting and thereby committed the offence punishable under section 147, R/w. section 149 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with a common object of committing the offence have tried to attract the voters and influence them in voting Accused No.2 who is contesting for the Election from BJP and thereby committed the offence punishable under section 171(c), R/w. section 149 of IPC?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common object of committing the offence have disobeyed the Promulgation Order of Election Committee and violated the Election Model Code of Conduct and thereby committed the offence punishable under section 188, R/w. section 149 of IPC?
5. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common object of committing the offence have obstructed CW-11 and 12, by man handling them and by disobeying their advisory instructions and then tress-passed into the Polling Booth with an intention of obstructing CW-6 to 8 from performing their public duty and thereby committed the offence 10 CC.No.30670/2022 punishable under section 353, R/w. section 149 of IPC? ......
6. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common object of committing the offence, entered the Prohibited Area and insulted and abused CW-11 and 12 in filthy language and thereby gave provocation to them, knowing that such provocation would cause others to break public peace and thereby committed the offence punishable under section 504, R/w. section 149 of IPC?
7. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common object of committing the offence entered in the restricted and prevented CW-11 and 12 from discharging their Public Duty and violated the Election Model Code of Conduct and thereby committed the offence punishable under section 131 of R.P. Act?
8. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 26 being the members of unlawfully assembly with common object of committing the offence have tress-
passed into the restricted area and misconducted themselves and thereby committed the offence punishable under section 132 of R.P. Act?
9. What Order?
11 CC.No.30670/2022
08. The findings of this court on the above points are:
Points No.1 to 8 : In the Negative, Point No.9 : As per final order for the following:
REASONS
09. Points No.1 to 8: As these points are interlinked, they are taken up together to avoid repetition of facts and circumstances of the case.
10. In order to bring home the guilt of the Accused Persons, the prosecution has examined the complainant as PW-3. And, the eye-witnesses are examined as PW-4 to PW-9, 11 to 14 and 17. The offences alleged are Section 143 of IPC, which punishes, whoever is a member of an unlawful assembly, Section 147 of IPC, which punishes, the persons for committing the offence of rioting, Section 171(C) of IPC, punishes whoever voluntarily interferes or attempts to interfere with the free exercise of any Electoral Right, Section 188 of IPC, criminalizes any deliberate disobedience of an order that is duly promulgated by a Public Servant empowered by law to do so, Section 353 of IPC punishes whoever assault or use criminal force to deter public servant from discharge of his duty, Section 504 of IPC punishes intentional 12 CC.No.30670/2022 insult with intent to provoke breach of the peace, Section 131 of R.P. Act penalizes for disorderly conduct in or near Polling Station and Section 132 of R.P. Act, penalizes for misconduct at the Polling Station.
11. PW-3 has deposed that based on the information, he went to the spot at about 03.45 p.m., but no fight was taking place at that time. He has deposed that the police who were at the spot showed him the video which they had shot when the galata took place. He has deposed that the galata was between the Accused and the police stating that double voting is going on and the people from some other place are coming to the booth and casting their votes and the galata took place within 100 meters from the Polling Booth. He has deposed about lodging the compliant on the next day and also about the I.O drawing the spot mahazar in the presence of the panchas. The complaint is marked as Ex.P6, the mahazar is marked as Ex.P7 and the photo is marked as Ex.P8. The DVD is marked as Ex.P4.
12. PW-4 who is said to be one of the eye-witnesses, he was on Election Duty and he was sitting near the door of the Polling Booth. He has deposed that some people who were 13 CC.No.30670/2022 standing in the Que and few of them from outside came inside the booth and asked him, if he is verifying the address of the voters and then allowing them to cast the votes and then, they left the spot. He has deposed that after few minutes, he heard he noise of some galata out side the booth, but he did not go outside to see as to what was happening. He has deposed that the voting process went on smoothly without any disturbances nor they have obstructed him from discharging his public duty. He has deposed that later, in the Police Station, he came to know that the Accused No.1 and some others had come to the booth. He has deposed that he did not give any statement to the police stating that the people who had come to the booth obstructed him from discharging his duties nor he has stated that they have created fear in his mind.
13. At the request of Lrd. Sr.APP., he is treated as hostile and permission was accorded to cross-examine him. Even, in the cross-examination, he has not supported the case of the prosecution alleging that the Accused have obstruct him from discharging duties nor he has supported in respect of other allegations made against the Accused Persons. Even, in the cross-examination, he has deposed that the Accused have just 14 CC.No.30670/2022 come inside the booth and verified about the voting process and went out of the booth.
14. In the cross-examination done by the counsel for the Accused Persons, PW-4 has admitted that after 03-00 p.m., the voters had come in the Que to cast their votes and the voting went on smoothly. He has admitted that some one else told him that the Accused No.1 had come to the spot.
15. PW-5 to 7 who were also on Election duty inside the Polling Booth have deposed that on the alleged date of incident three persons came inside the booth and were asking for some information with PW-4/CW-6 and they were also discussing something with PW-4 and then, they went out of the room. They have deposed that they do not know if any galata took place outside the Polling Booth. But, there was no interference or obstruction from anyone to do their Public Duty. They have also deposed that the police have not shown them any Video.
16. At the request of Lrd. Sr.APP., they were treated as hostile and permission was accorded to cross-examine them. Even, in the cross-examination, they have not supported the case of the prosecution alleging that the Accused have obstruct them 15 CC.No.30670/2022 from discharging duties nor they have supported in respect of other allegations made against the Accused persons. Even, in the cross-examination, they have deposed that the Accused have just come inside the booth and verified about the voting process with PW-4 and went out of the booth.
17. PW-8 and 9, 11 to 14 who are Police Officials/Officers have deposed that they were on Election Duty in the Polling Booth and they along with others have drawn white lines around the Polling Booth within the radius of 100 meters so as to prevent the general public from entering the Polling Booth. They have deposed that the Accused No.1, 2 and their followers have entered the Polling Booth in order to influence the voters who were present in the booth. They have deposed that they along with CW-11 informed them about the Prohibitory Orders imposed by the Election Officer and asked them to go out. They have deposed that the Accused Persons without heeding to their request told that they want to talk to CW-6 and pushed them and entered the Polling Booth and started arguing with CW-6. They have deposed that by that time, the Accused No.3 along with his followers came to the spot and told that even, they have to talk to PRO and they pushed them and went inside the booth and spoke 16 CC.No.30670/2022 to CW-6 in loud voice and then came out of the booth. They have deposed that after coming out of the booth, the Accused No.1, 2 and their followers and the Accused No.3 and his followers started fighting with each other and they were also abusing each other using filthy words.
18. PW-17 who is the photo/video-grapher has deposed that he was entrusted with the duty of video-graphing the election process at Booth No.22 and 22-A. He has deposed that on the alleged date, at about 01.30 p.m., some people from the Opposition Party came to the Polling Booth and told them that some people are casting fake votes and they have expressed their objection. He has deposed that the police who were on duty came to the spot and scattered the group and sent all those the people outside. And, later the voting process took place smoothly. He has deposed that he has handed over the CD to the President of their Association. And, the police have obtained his signature on one document for having prepared the C.D., but he do not know the contents of the said document. The certificate under Section 65-B of Evidence Act, is marked as Ex.P25.
19. Finally, the Police Officer who registered the case and investigated the crime is examined as PW-16. She has deposed 17 CC.No.30670/2022 accordingly. In the cross-examination, it was elicited from her mouth that she had registered 6 Cases in total during the said Election. She has deposed that in all the 6 Cases, prior to the respective complainants of those cases lodged the complaint, she had knowledge about the occurrence of the respective incidents, but, she had not know that the crimes are going to be registered. She has deposed that she had not published to the general public about the Prohibitory Orders passed by the Election Officer. She has also deposed that there was no written intimation to the public near the 100 meters line that was drawn at the spot, restraining the public entering the boarder line.
20. From the overall evidence of the prosecution witnesses, it goes to show that their evidence about the alleged incident is contradicting with each other which touches the root of the case and the same is fatal to the case of the prosecution. The alleged eye-witnesses have deposed that the Accused Persons have come inside the Polling Booth and verified some things with CW-6 and left the booth and later, the voting process took place smoothly. None of the witnesses have deposed that the Accused have come to the spot to attract the voters or to influence the voters. Even, the complaint is silent about the same. PW-3 is the 18 CC.No.30670/2022 spot mahazar witness and he has deposed about the spot mahazar drawn by the police in their presence. In view of the contradictory evidence of the material witnesses, the evidence of the spot mahazar witness is of no use for the prosecution to prove the guilt of the Accused Persons.
21. Section 171-C of the Indian Penal Code, states that anyone who voluntarily interferes or attempts to interfere with someone's free exercise of their Electoral Right commits the offence of undue influence at an Election, which includes threatening or inducing a Candidate or voter in any way that affects their voting freedom. But, none of the voters of the said Polling Booth is cited as witness by the I.O. Even, out of the witnesses examined the material witnesses have not deposed that the Accused have committed the offence of undue influence at the Election. As such, the prosecution has failed to prove that the Accused have committed the said offences.
22. Another offence alleged against the Accused Persons is that they have committed the offence punishable under section 188 of IPC, which reads as follows:
"Section.188: Disobedience to order duly promulgated by public servant.-Whoever, 19 CC.No.30670/2022 knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both: and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation.- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm".20 CC.No.30670/2022
23. Section 188 of I.P.C., is divided into Three Parts and an explanation. In the First Part, it deals with disobedience of an order promulgated by a Public Servant lawfully empowered to promulgate such order fully knowing that such order has been promulgated. It does not lay down any penal provision. The Second and Third Part deals with the consequences of such disobedience. In Bharat Raut Vs. State, it is held therein by the Hon'ble Patna High Court that under Section 188 of IPC., "mere disobedience of an order made by a public servant lawfully is not punishable and that the disobedience must lead to certain consequences narrated in second and third paragraphs of section 188 of IPC".
24. It is also so held in Bachuram Kar Vs State, wherein, it is observed as follows:
"Mere disobedience under Section 188 of I PC., of an order promulgated by a public servant is not in itself an offence unless it entails one or other of the consequences which the section itself mentions".
25. To sustain an indictment for an offence under any penal provision in law, knowledge of the Accused has always been 21 CC.No.30670/2022 considered pivotal. However, to invoke the rigor of section 188 of IPC., the "knowledge" of the Accused, of the order promulgated by the Public Servant becomes rather mandatory and a pre - requisite, failing which any indictment under the same is bad in law. A person booked under section 188 of IPC "must" have actual knowledge of the public servant's order requiring him to do or abstain from doing some act. Actual proof of the same has to be produced on record and in the absence of the same, no presumption of having acquired or gained knowledge of the said order can be raised against the Accused.
26. In the case on hand, it is no one's case that any danger to human life is caused or if any one is hurt by the alleged seeking of votes done by the Accused. In the decision between DN Ramaiah Vs. DR Aswathanraryanshetty & Ors, the Hon'ble High Court of Karnataka, went on to hold that for any disobedience to attract penal action under Para No.2 of section 188, the obstruction, injury or annoyance to "any person" would not be sufficient and the same had to be proved to have been inflicted upon a person "lawfully employed".
22 CC.No.30670/2022[ 27. In view of the aforesaid decisions and interpretations given to the provision by various courts in the country, it would be trite to state that mere disobedience of an order passed by a public servant would not attract the rigors of section 188 of IPC. The onus is upon the complainant to mandatorily establish that the accused had "knowledge" of the order promulgated by the public servant, while disobeying it and that such disobedience had caused/tended to cause obstruction, annoyance or an injury or risk of obstruction, annoyance or injury to a person "lawfully employed", and not just to any person, party to a dispute, Government Official etc. Consequently, failure to meet even one of the ingredients would go to the very root of the case. Here, in the case on hand, the none of the ingredients are met out by the prosecution. On the other hand, at the cost of repetition, it is to be stated that it is crystal clear that no obstruction, annoyance, or injury or risk of obstruction, annoyance or injury to any person lawfully employed as mentioned in the 2 nd Part of Section 188 of the Code is caused, or there is nothing on record to show that the alleged act has caused or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray as mentioned in the 3rd Part of section 188 of the Code. 23 CC.No.30670/2022
28. The prosecution is relying upon the C.D., which is produced and marked as Ex.P4 to prove that the Accused have entered the Polling Booth and influenced the voters to cast their vote infavour of their Party Candidate, in violation of the Code of Conduct. To prove the same, Certificate under section 65-B(4) of the Evidence Act, is mandatory, which is reads as follows:
"Section.65-B: Admissibility of Electronic Records.-
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of 24 CC.No.30670/2022 any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
29. In the case on hand, the prosecution has examined PW-17, who is said to have issued the Certificate under the above referred provision of law. And, the said document is marked as Ex.P25. His evidence is that he has not issued that Certificate, but, the Police have prepared the same and he signed the said document. At this stage itself, it is necessary to peruse Ex.P25, which is the Certificate under section 65-B of the Evidence Act. The above excerpted provision of law mandates certain particulars to be contained in the Certificate so issued. But, the same is not at all finding place in Ex.P25. Issuance of the Certificate under this provision is not just an empty formality to issue the same as one wishes to issue. As such, based on the discussion made above i.e., with regard to the discrepancies in the oral evidence and also for not complying with the mandatory requirements in Ex.P25, the C.D which is marked as Ex.P4 cannot be looked into for any purpose.
30. The prosecution has also alleged that the Accused have committed the offences under Section 143, 147, 353 and 25 CC.No.30670/2022 504 of IPC along with Section 131 of the R.P. Act, which punishes for disorderly conduct in or near Polling Stations and Section 132 of the R.P.Act, punishes for misconduct at the Polling Station. None of the witness have deposed about the Accused Persons forming unlawful assembly near the Polling Booth nor the material witness have deposed that the Public Duty of the Officials or the Officers is obstructed by the Accused Persons. It is also not the case of the prosecution that the Accused have abused the Officers or the Officials who were deputed in the Polling Booth. It is the case of the prosecution that the Accused No.1, 2 and their followers and the Accused No.3 and his followers were abusing each other in filthy language, but surprisingly none of them have lodged any complaint in this regard. As discussed supra, there is no evidence on record to show that the Accused have committed the offences as alleged by the prosecution. The oral and documentary evidence available on record is not suffice to hold that the Accused Persons are guilty of the offences alleged against them. As such, without any further discussion, it can be safely said that the prosecution has failed to prove the case as projected. The oral and documentary evidence placed before this court is not suffice to convict the Accused Persons for the alleged 26 CC.No.30670/2022 offences. As such, based on the discussions made above, the Accused No.1 to 11, 13 to 26 cannot be convicted for the alleged offences. Accordingly, the Points No.1 to 8 is answered in the NEGATIVE.
31. Point No.9:- In view of my findings on the above Point No.1 to 8, the Accused No.1 to 11 and 13 to 26 are entitled to be acquitted by giving benefit of doubt. Hence, I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C., the Accused No.1 to 11, 13 to 26 are acquitted of the offences punishable under section 143, 147, 171(c), 188, 353 and 504, R/w section 149 of IPC and section 131 and 132 of Representation of People Act, 1950, 1951, 1989.
The bail bonds and surety bonds of the Accused No.1 to 11, 13 to 26 stand cancelled, after the Appeal Period.
(Typed by me, directly on the computer, corrected and then pronounced by me, in open court, on this the 27 th day of February - 2024).
Digitally signed
PREETH by PREETH J Date:
J 2024.03.13
17:45:12 +0530
(Preeth. J)
XLII Addl. CMM.,
(Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka)\ 27 CC.No.30670/2022 ANNEXURES Witnesses examined for the Prosecution:
PW.01 : Y.M.Rajendra, PW.02 : T.M.Channabasaiah, PW.03 : N.Srikanta, PW.04 : Sharana Basappa Patil, PW.05 : U.M.Shivayogi, PW.06 : Sanna Tammappa, PW.07 : Mahesh Naik, PW.08 : Manjunatha, PW.09 : Smt.Bhagirathi, PW.10 : Mahesh B., PW.11 : G.K.Abbas, PW.12 : Vadakappa, PW.13 : Kotresh Poojari, PW.14 : V.Manjunath, PW.15 : Virupaksha Gaddi, PW.06 : Smt.P.Sarala. PW.17 : Govinda Naik.
Documents exhibited for the Prosecution:
Ex.P.01 : Seizure Mahazar of DVD,
Ex.P.01(a) : Signature of PW.01,
Ex.P.01(b) : Signature of PW.02,
Ex.P.01(c) : Signature of PW.15,
Ex.P.01(d) : Signature of PW.16,
Ex.P.02 : Photo,
Ex.P.03 : Copy of Police Notice,
Ex.P.04 : DVD,
Ex.P.05 : Copy of Police Notice,
Ex.P.06 : Complaint,
Ex.P.06(a) : Signature of PW.03,
Ex.P.06(b) : Signature of PW.16,
Ex.P.07 : Spot Mahazar,
Ex.P.07(a) : Signature of PW.03,
Ex.P.07(b) : Signature of PW.10,
Ex.P.07(c) : Signature of PW.16,
Ex.P.08 : Photo,
Ex.P.09 : Statement of PW.04,
28 CC.No.30670/2022
Ex.P.10 : Statement of PW.05,
Ex.P.11 : Statement of PW.06,
Ex.P.12 : Statement of PW.07,
Ex.P.13 : Notice,
Ex.P.14 : Certificate u/s.65-B,
Ex.P.14(a) : Signature of PW.15,
Ex.P.15 : FIR,
Ex.P.15(a) : Signature of PW.16,
Ex.P.16 : Requisition Letter dated:01-01-2022,
Ex.P.17 : Requisition Letter dated:01-01-2022,
Ex.P.18 : Requisition Letter dated:01-01-2022,
Ex.P.19 : Requisition Letter dated:01-01-2022,
Ex.P.20 : Requisition Letter dated:01-01-2022,
Ex.P.21 : Town Municipal Council, H.B.Halli,
Letter dated:05.01.2022,
Ex.P.22 : Order of Election Commission documents,
Ex.P.23 : Lists of Center of Polling Booth of Public
Election -2021 & Voter lists,
Ex.P.24 : Lists of Appointment order of Presiding
Officers and Polling Officers,
Ex.P.25 : Certificate u/s.65-B,
Ex.P.25(a) : Signature of PW.17,
Ex.P.26 : Rough Sketch.
Ex.P.27 : Statement of PW.17.
Material object exhibited for the Prosecution:-
- NIL -
Witnesses examined for the defence Accused:-
- NIL -
Documents exhibited for the defence Accused:-
- NIL - Digitally signed
PREETH by PREETH J
Date:
J 2024.03.13
(Preeth. J)
17:45:33 +0530
XLII Addl. CMM
(Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 29 CC.No.30670/2022