Karnataka High Court
Shri.Deepak S/Oo K. Gururaj Achar vs The State Of Karnataka on 22 February, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100644/2021
C/w.CRIMINAL PETITION NO.101874/2019
CRIMINAL PETITION NO.102464/2019.
IN CRL.P.NO.100644/2021
BETWEEN
SHRI D. PRASAD BABU S/O.D. SHANKAR RAO,
AGE: 50 YEARS, OCC. BUSINESS,
R/O. VEERUPAPUR GADDI,
TAL. GANGAVATHI, DIST. KOPPAL.
...PETITIONER
(BY SRI JAGADISH PATIL, SRI SAJID I. GOODWALA,
ADVOCATES)
AND
1. THE STATE OF KARNATAKA
THROUGH GANGAVATHI RURAL POLICE STATION,
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
AT. DHARWAD.
2. THE DEPUTY COMMISSIONER
AND DISTRICT MAGISTRATE
DISTRICT MAGISTRATE,
D. C. OFFICE COMPLEX,
KOPPAL 583231.
2
3. THE ASSISTANT COMMISSIONER,
KOPPAL 583231.
4. THE TAHSILDAR
SH-130, KANAKAGIRI,
MUNIRABAD ROAD,
GANGAVATHI, KOPPAL 583227.
...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NOS.1-4)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE FIR CRIME NO.185/2019 DATED
16/08/2019 REGISTERED BY THE GANGAVATHI RURAL POLICE
STATION PRODUCED VIDE ANNEXURE-B AGAINST THE
PETITIONER (ARRAYED AS ACCUSED NO.18) FOR THE
OFFENCES PUNISHABLE UNDER SECTION 420, 336, 338, 339
AND 188 OF THE INDIAN PENAL CODE 1860 AND SECTION
51(B) OF THE DISASTER ANAGEMENT ACT 2005 AS AGAINST
THE PETITIONER.
IN CRL.P.NO.101874/2019
BETWEEN
SHRI DEEPAK S/O. K. GURURAJ ACHAR,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: TALUK: GANGAVATHI,
DIST: KOPPAL-583227,
KARNATAKA. ...PETITIONER
(BY SRI PRASHANT F. GOUDAR, ADVOCATE)
3
AND :
1. THE STATE OF KARNATAKA
THROUGH GANGAVATHI RURAL P.S.,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580001.
2. THE DEPUTY COMMISSIONER
AND DISTRICT MAGISTRATE,
D.C. OFFICE COMPLEX,
KOPPAL-583231,
KARNATAKA.
3. THE TAHSILDAR
SH-130, KANAKAGIRI,
MUNIRABAD ROAD,
GANGAVATHI, KOPPAL-583227,
KARNATAKA.
..RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NOS.1 - 3)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASHING THE ORDER BEARING NO.
REVENUE/NAIVI/17596/01/2019 DATED 16.08.2019 PRODUCED
AND MARKED AS ANNEXURE-A PASSED BY THE RESPONDENT
NO.2, DIRECTING THE RESPONDENT NO.3 TO LODGE A
COMPLAINT AGAINST THE PETITIONER (ARRAYED AS ACCUSED
NO.21) FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
4
420, 336, 338, 339 & 188 OF IPC, 1860 R/W SEC. 51(B) OF THE
DISASTER MANAGEMENT ACT, 2005, AS AGAINST THE
PETITIONER AND QUASHING THE FIR BEARING GANGAVATHI
RURAL P.S. CRIME NO.185/2019 DATED 16.08.2019
REGISTERED WITH THE GANGAVATHI RURAL POLICE STATION,
PRODUCED VIDE ANNEXURE-C, AGAINST THE PETITIONER
(ARRAYED AS ACCUSED NO.21) FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 420, 336, 338, 339 & 188 OF
IPC, 1860 R/W SEC. 51(B) OF THE DISASTER MANAGEMENT
ACT, 2005, AS AGAINST THE PETITIONER.
IN CRL.P.NO.102464/2019
BETWEEN
MOHAMMED IQBAL,
S/O.MOHAMMED ABDUL KHALEEL,
AGED ABOUT 51 YEARS,
R/O: BUILDING NO. 49,
ALCOVE APARTMENT,
FLAT NO. 501, 5TH FLOOR,
KENCHAPPA ROAD, FRAZER TOWN,
BENGALURU-560 005.
...PETITIONER
(BY SRI K.RAGHAVENDRA RAO, AND
SMT. V.VIDYA, ADVOCATES)
AND
1. THE STATE OF KARNATAKA,
REP. BY STATE PUBLIC PROSECUTOR,
5
HIGH COURT OF KARNATAKA,
DHARWAD BENCH
BY THE SUB-INSPECTOR OF POLICE
GANGAVATHI RURAL POLICE
STATION, KOPPAL - 583 227.
2. THE TAHSILDAR, GANGAVATHI,
KOPPAL DISTRICT - 583 227.
...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C.
SEEKING TO QUASH THE IMPUGNED COMPUTERIZED
COMPLAINT FILED BY RESPONDENT NO.2 BEFORE RESPONDENT
NO.1 IN NO.SUM:KUM:NAIVI/2019-20 DATED 16.08.2019
FOUND AT ANNEXURE-C AND IMPUGNED FIRST INFORMATION
REPORT IN FIR NO.628/2019 FILED BY RESPONDENT NO.1 IN
CRIME NO.185/2019 DATED 16.08.2019 FOUND AT ANNEXURE-
D ALLEGING OFFENCES U/S. 420, 336, 338, 339, 188 OF IPC
AND SEC. 51(B) OF THE DISASTER MANAGEMENT ACT 2005,
INSOFAR AS THE PETITIONER IS CONCERNED, ALLOW THIS
CRIMINAL PETITION.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
6
ORDER
The petitioners in these petitions call in question one and the same proceedings instituted against them for offences punishable under the Disaster Management Act,2005 ('the Act' for short) and other provisions of the IPC, they are taken up together and disposed of by this common order.
2. Heard learned counsel appearing for the petitioners and learned HCGP appearing for the respondents. Criminal Petition No.101874 of 2019:
3. Brief facts in this petition are that the petitioner calls in question the order passed by the Deputy Commissioner/2nd respondent directing the 3rd respondent to institute criminal proceedings against the petitioner for offences punishable under Section 420, 336, 338, 339 and 188 of the Indian Penal Code read Section 51(b) of the Act.
4. On 11-08-2019 for protection of visitors and general public and under instructions by the 2nd respondent, by beating drums the residents of the villages surrounding Tungabhadra River and also Reservoir were warned not to go near the River Banks. It appears that on 10-08-2019 the Tungabhadra 7 Reservoir overflew which added to the volume of river water resulting in disconnecting of pathway to Virupapurgaddi village from the main stream and visitors were struck in the said place. On 11-08-2019 a general rescue operation was initiated for rescuing 66 people who were rescued by boat and due to further increase in river water, the rescue operation was put on hold till National Disaster Response Force ('NDRF') was called. The NDRF arrived and rescued 66 people who were stranded and 5 people who fell into the river were also saved by the local people and three helicopters were called for rescue operations. It is the case of the petitioners that totally about 592 people were rescued. The matter ended on 13-08-2019.
5. On 13-08-2018 an article appeared in two daily newspapers - one Vijayavani and the other Vijaya Karnataka - bringing out the news that resort and restaurant owners who were surrounding the area had kept the visitors in dark with regard to the information of overflow of the river and misguided them. It is also reported in the newspaper that one visitor Smt. Suma had given a similar statement before the media. On 14.08.2019 the Deputy Commissioner passed an order directing 8 the Tahsildar, Koppal to register a complaint against resort and restaurant owners of Virupapurgaddi Village for offences punishable under the aforementioned provisions of law. The reason quoted in the order of the Deputy Commissioner is reporting of the incident in Vijayavani and Vijaya Karnataka newspapers. There is no complaint registered and no information was received other than what was reported in the newspapers. Based upon the directive dated 16-08-2019, the Tahsildar lodges a complaint alleging that the restaurant and resort owners have shown apathy towards the visitors by keeping them in dark without informing overflowing of river. Based upon the said complaint, FIR came to be registered in Crime No.185 of 2019 for offences punishable under sections as quoted hereinabove. Several proceedings were instituted against several resort owners. It is these proceedings that are called in question by the petitioner who runs a restaurant in the vicinity of Virupapurgaddi.
Criminal Petition Nos. 102464 of 2019 & 100644 of 2021:
6. All the facts narrated in the companion petition No.101874 of 2019 are the same in these petitions as well, as 9 the petitioners are also restaurant owners who call in question the proceedings in the very Crime No.185 of 2019 registered for the same offences.
7. The learned counsel appearing for the petitioner in Criminal Petition No.101874 of 2019 Sri Prashant F.Goudar, Sri K.Ravendra Rao in Criminal Petition No.102464 of 20019 and Sri Jagadish Patil in Criminal Petition No.100644 of 2021 would in unison urge that the Deputy Commissioner could not have delegated the power of directing registration of the offence under the IPC to the Tahsildar as it was the power that he never possessed. There is no complaint registered by any person affected in the rescue operation. Criminal law is set in motion only on the news reporting in the newspapers. It is their submission that the Act lays down only coordinate mechanism for effective disaster management but the State Government has not framed any Rules for implementation of Act as required under Section 75 of the Act and, therefore, it cannot result in offences becoming punishable under Section 51(b) of the Act.
The IPC offences that are alleged cannot even remotely connect to the incident as the offences alleged are under Sections 420, 10 336, 338, 339 and 188 of the IPC and Section 51(b) of the Act. It is their further submission that the Act also would not become applicable in the case at hand.
7.1. The learned High Court Government Pleader would vehemently refute the submissions made and contends that these petitioners are owners of restaurants or resorts in the surrounding area and have lured expressly the visitors and the villagers to come to their resorts or restaurants notwithstanding beating of drums. If the petitioners had not entertained any guests there need not have been any rescue operations. Casualties or otherwise is immaterial. He would submit that it is a matter for trial in which the petitioners have to come out clean.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
9. The afore-narrated facts with regard to overflowing of the river, the people getting stranded, totally about 592 people were rescued in the rescue operations, all the 592 people were not the guests of the petitioners, there is no complaint 11 registered by any individual against the petitioners or any of the resort owners are all not in dispute. What triggered these proceedings is the newspaper item that surfaced on 13-08-2019 depicting that the resort and restaurant owners have misled the guests and it was the reason for the problem. Based on the news item, the Deputy Commissioner directs the Tahsildar to register criminal cases against the petitioners and the like. The relevant portion of the order directing registration of criminal cases reads as follows:
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The Tahsildar registers the afore-quoted complaint which becomes an FIR against several of the owners of resorts/ restaurants. The petitioners are accused 21, 16 and 18 in Criminal petitions Nos. 101874 of 2019, 102464 of 2019 and 100644 of 2021 respectively. Since the offences registered became punishable under the aforesaid provisions of law, they 15 are required to be noticed at the outset. I deem it appropriate to notice Section 51 of the Act which reads as follows:
"51. Punishment for obstruction, etc. - (1) Whoever, without reasonable cause -
(a) obstructs any officer or employee of the Central Government or the State Government, of a person authorized 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 with may extent to two years."
Section 51(b) which is invoked in the case at hand mandates that whoever 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 the Act shall on conviction be punishable with imprisonment for a term which may extend up to one year or fine or with both and such 16 obstruction or refusal to comply with directions results in loss of lives or imminent danger the conviction would be extendable up to 2 years. Section 60 deals with cognizance of 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 authorized 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 authorized as aforesaid."
Section 60 mandates that no Court shall take cognizance of an offence under the Act except on a complaint made by the National Authority, the State Authority, the Central Government, the State Government, District Authority or any other authority authorized in this behalf by that authority or Government as the case may be. It is this provision that is pressed in to service to contend that registration of the 17 complaint by the Tahsildar on a direction of the Deputy Commissioner was without jurisdiction as every authority is defined under the Act. Section 2 is the definition section and provisions relevant to this case are extracted hereunder for ready reference:
"2. Definitions. - In this Act, unless the context otherwise requires -
... ... ... ...
(c) "Central Government" means the Ministry or Department of the Government of India having administrative control of disaster management.
... ... ... ...
(f) "District Authority" means the District Disaster Management Authority constituted under sub-section (1) of Section 25;
... ... ... ...
(h) "local authority" includes panchayati raj institutions, municipalities, a district board, cantonment board, town planning authority or Zilla Parishad or any other body or authority, by whatever name called, for the time being invested by law, for rendering essential services or, with the control and management of civic services, within a specified local area;
... ... ... ...
(j) "National Authority" means the National Disaster Management Authority established under sub-section (1) of Section 3;
(k) "National Executive Committee" means the Executive Committee of the National Authority constituted under sub-section (1) of Section 8;18
... ... ... ...
(q) "State Authority" means the State Disaster Management Authority established under sub-
section (1) of Section 14 and includes the Disaster Management Authority for the Union Territory constituted under that section;
(r) "State Executive Committee" means the Executive Committee of a State Authority constituted under sub-section (1) of Section 20;
(s) "State Government" means the Department of Government of the State having administrative control of disaster management and includes Administrator of the Union territory appointed by the President under Article 239 of the Constitution."
Section 2(j) defines National Authority; Section 2(k) defines National Executive Committee; Section 2(q) defines State Authority; Section 2(r) defines State Executive Committee; Section 2(c) defines Central Government and Section 2(s) defines State Government. The case at hand requires noticing of District Authority. Section 2(f) defines District Authority extracted supra. The District Authority to mean District Disaster Management Authority constituted under sub-section (1) of Section 25. Section 25 of the Act mandates constitution of District Disaster Management Authority. Section 25(1) specifies constitution and publication of such constitution by way of a 19 notification published in the Official Gazette. Section 25(1) reads as follows:
"25. Constitution of District Disaster Management Authority - (1) Every State Government shall, as soon as may be after issue of notification under sub-section (1) of Section 14, by notification in the Official Gazette, establish a District Disaster Management Authority for every district in the State with such name as may be specified in that notification."
A Division Bench of this Court considered this very aspect whether the Authority has been constituted in terms of the Act or otherwise in a public interest petition in Writ Petition No.18628 of 2019. The Division has passed orders on two dates
- one on 22-07-2019 and the others on 13-09-2019. Since they are germane to be noticed, they are extracted hereunder for the purpose of quick reference:
"DATED 26/08/2019 ORDER IN W.P.NO.18628/2019 IN W.P.NO.19054/2019 The learned Additional Advocate General seeks time to address the Court on Clause (6) of the letter dated 8th April 2015 (Annexure-A).
2. Earlier order notes that this Court will also consider the issue of implementation of the 20 Disaster Management Act, 2005 (for short 'the said Act'). When we made a query to the learned Additional Advocate General about the constitution of the State Disaster Management Authority (for short 'State Authority'), he states that the same was constituted on 16th May 2008 and the first and only meeting of the State Authority was held on 2nd August 2019. This shows that the State Authority is hardly functioning and it exists only on paper. As far as the State Executive Committee is concerned. it was constituted on 16th May 2008 and was reconstituted on 19th April 2013. Vast functions and duties have been entrusted to the State Executive Committee under Section 22 of the said Act including the responsibility of preparing the State Disaster Management Plan (for short 'the State Plan'). Unfortunately, during the last more than eleven years, the Committee has met only twelve times.
3. Paragraph 8 of the statement of objections filed today shows that between the years 2008 to 2010, not a single meeting of the State Executive Committee was held and all meetings were held starting from 31st October 2011.
4. Under Section 24 of the said Act, the State Executive Committee is under an obligation to assist and protect the community affected by disaster, providing relief to such community, preventing or combating disruption or dealing with the effects of any threatening disaster situation. Vast powers are conferred to the State Executive Committee to deal with such situations.
5. In December 2018, it was declared that 156 taluks were affected by the drought. The State Executive Committee after 17th November 2015 held a meeting on 12th December 2018 thereafter, the next meeting was held on 12th March 2019 and the last meeting was held on 9th August 2019. There were so many disasters within the meaning of clause (d) of Section 2 of the said Act as such drought conditions and floods. But, notwithstanding all that, the State Executive Committee has met only on two occasions in the year 2019.21
6. Section 23 of the said Act contemplates that preparation of the State Plan. Though it is claimed that the State Plan has been prepared by the State Executive Committee, admittedly, there is no approval of the State Plan by the State Authority. Therefore, the State Plan does not exist at all. In fact sub-section (5) of Section 23 provided that the State Plan shall be reviewed and updated annually. Section 23 came into force on Ist August 2007. Hence, for a period of 12 years, the State plan has not been prepared. Thus, the State Plan for disaster management does not exist at all.
7. The learned Additional Advocate General on instructions states that the District Disaster Management Authorities have been constituted in each District. We direct the State to produce a copies of the notifications regarding the constitution of the District Authorities in every District along with additional objections. The additional objections will include the figures of the meetings held in the District Committees in all Districts. Section 31 contemplates preparation of Disaster Management Plan for every District. Such plan must be approved by the State Authority. No such plan has been approved by the State Authority in the only meeting held on 2nd August 2019. Therefore, the District Plans do not exist. This is a very sorry state of affairs.
8. The State Government must also place on record whether measures as provided in Sections 38 and 39 have been taken. The State Government will also specify in the additional objections whether Disaster Management Plans of departments of the State exist as provided in Section 40. As far as Section 48 is concerned, in the additional objections filed today, it is admitted that after 2014-15, subsequent allocations have not been made in the State budget for the State Disaster Mitigation Fund. Therefore, the State Disaster Mitigation Fund as contemplated on sub- section (1)(c) of Section 48 exists only on paper. The learned Additional Advocate General has not received any instructions on the question whether 22 the State Government exercised the rule making power under the said Act."
The Division Bench of this Court has clearly held that the State Government has not framed any disaster management plan as mandated under Section 38 of the Act. Without any plan in place proceeding further under the Disaster Management Act would be erroneous. In the light of the observations of the Division Bench, if Section 51(b) is noticed, it becomes unmistakably clear that without bringing out what amounts to obstruction under Section 51, the offences cannot be made punishable under Section 51(b) of the Act and since Rules are not framed, the Deputy Commissioner had no authority to direct the Tahsildar registration of the aforesaid offences as he is not the District Authority as defined under Section 25 of the Act. As contended by the learned counsel appearing for the petitioners, the very order passed by the Deputy Commissioner directing the Tahsildar to register the complaint runs counter to law. The other offences alleged against the petitioners under the provisions of the IPC would also fail in the light of the very authority exercising power which is held to be without 23 jurisdiction. Even otherwise there is no act of the petitioners for offences punishable under Section 420 of the IPC or any other provisions that are invoked.
10. For the aforesaid reasons, I pass the following:
ORDER
(i) These criminal petitions are allowed.
(ii) Order bearing No.Kandaya/NyVi/17596/01/2019 dated 16-08-2019 passed by the 2nd respondent and proceedings in Crime No.185 of 2019 registered before the Gangavathi Rural Police Station stand quashed.
SD JUDGE CKK