Karnataka High Court
Basamma And Anr vs The State Of Karnataka on 22 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200970/2022
BETWEEN:
01. BASAMMA W/O PARAMESH
AGE: 44 YEARS OCC: SHOPKEEPER
R/O: HUTTI VILLAGE, TQ: LINGASUGUR
DIST: RAICHUR-586 106.
02. MANAPPA S/O DEVAPPA VAJJAL
AGE: 60 YEARS OCC: CONTRACTOR
R/O: LINGASUGUR TQ: LINGASUGUR
DIST: RAICHUR-586 101.
...PETITIONERS
(BY SHRI. SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 107.
(THROUGH LINGASUGUR P.S.,
DIST. RAICHUR - 586106). ...RESPONDENT
(BY SRI. VEERANAGOUDA MALIPATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE COMPLAINT, FIR AND FILING OF CHARGE SHEET IN HUTTI
P.S. CRIME NO.194/2018 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 171B AND 188 OF IPC AND SECTION 130 OF
REPRESENTATION OF PEOPLE ACT, 1951 AND 1988, PENDING
ON THE FILE OF PRL. CIVIL JUDGE (JR. DN) AND JMFC, AT
LINGASUGUR, DIST: RAICHUR.
THIS PETITION COMNG ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
2
ORDER
This petition is filed under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') praying to quash the complaint, FIR and filing of charge sheet in Hutti Police Station in Crime No.194/2018 for the offences punishable under Sections 171B and 188 of Indian Penal Code (fort short 'IPC') and Section 130 of the Representation of People Act-1951 and 1988, pending on the file of Prl. Civil Judge (Jr. Dn) and JMFC at Lingasugur, Dist: Raichur.
02. It is alleged that on the basis of complaint lodged by one Sri. R. Manasayya, the Election Officer, the FIR came to be registered. It is alleged in the complaint that on 12.05.2018 at 11.10 a.m. at Hutti Chinnad Gani Villaeg Area on Raichur main road, in front of shops, the petitioner No.1 - Basamma on behalf of petitioner No.2 - Manappa collected 60 to 70 peoples and forcefully took them near to the polling station by paying the amount. At that time complainant after seeing petitioner No.1 advised her not to violate election code of conduct. At that time petitioner No.1 moved towards the polling station with a lot 3 of peoples. It is further contended that the petitioners have violated the code of conduct by holding a meeting during the election thereby committed the aforesaid offences. Thereafter, the police after investigation have filed the charge sheet. Aggrieved by the same, the petitioner has filed this petition.
03. The learned Magistrate has taken cognizance and issued summons to the accused, which is challenged in this petition.
04. Heard Sri. Shivanand V. Pattanashetti, learned counsel for the petitioner and Sri. Veeranagouda Malipatil, the learned High Court Government Pleader for the respondent - State.
05. The learned counsel for the petitioner argued that the charge sheet is required to be quashed. The alleged offences punishable under Sections 171B of IPC is non-cognizable offences. Absolutely, there is no material to attract the provisions of Section 130 of Representation of Peoples Act. It is further contended that in view of Section 4 195 of Cr.P.C. the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. Therefore, filing of charge sheet by the police is illegal. In view of the above, the said provision takes away the general power of the Magistrate under Section 190 of Cr.P.C. Section 171B of IPC is non-cognizable offence. The police cannot investigate without permission of the jurisdictional Magistrate under Section 155 (2) of Cr.P.C. Therefore, initiation of proceedings is against the abuse of process of law. Hence, the learned counsel for the petitioners prays to allow the petition.
06. Against this, the learned High Court Government Pleader argued that the Magistrate has properly issued summons and there are materials to show that the petitioners have committed offences as stated above. Hence, he prays to dismiss the petition.
07. I have perused the complaint lodged by the said Election Officer. It is stated that when he heard that election meeting was going on, he went to at Hutti Gold Mine Area on Raichur main road, in front of shops and 5 found that petitioners collected 60 to 70 peoples and forcefully took them near to the polling station by paying the amount.. Therefore, he lodged the complaint. I have perused the statements of the witnesses, which do not indicate anything against the petitioners. The statements of witnesses are all hearsay statements. The statements does not show where they were present, how they have seen any such meeting and why they are giving statement on hearsay facts is also not forthcoming.
08. It is evident that there is no whisper about any such meeting held by the petitioners at the said spot. There is no material to show that these petitioners have solicited any such meeting.
09. The Coordinate Bench of this Court in Crl.P.No.2077/2019 dated 22.04.2019 in the case of Devananda s/o Pulasinga Chowhan and another vs. State of Karnataka and another, has discussed the said aspect, wherein there was a meeting in a Mahalaxmi Temple and some persons solicited votes from the members who had gathered at the Temple. But here in this 6 case there is no such allegation of soliciting any vote for anybody an on party or making propaganda in respect of any political party. It is relevant to refer Para No.5 of Crl.P.No.2077/2019 dated 22.04.2019 in the case of Devananda s/o Pulasinga Chowhan and another vs. State of Karnataka and another which reads as under :-
"5. At the outset it requires to be noticed the very invoking of Section 7 of Religious Institutions (Prevention of Misuse) Act, 1988, by prosecution was not called for, inasmuch as bare reading of Section 7 of the Act would clearly disclose that for contravention of Sections 3, 4, 5 and 6 of the Act, it is the manager and every person connected with such Religious institution who would be liable to be punished with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. It is not the case of prosecution that petitioners herein were persons incharge of religious institution or inotherwords connected to religious institution. Hence, continuation of proceedings for the said offence against petitioners would definitely be contrary to the provisions of the Act. Insofar as invoking of 7 Section 171F of IPC against petitioners is concerned, when read with conjunction with allegation made in the complaint, same would disclose that petitioners had not solicited the votes but on the other hand it is alleged that a third party had announced one mike seeking vote on behalf of first petitioner and said person is said to have one Sri. Lakkur Wodeyar, who has not been cited as witness in charge sheet or as an accused. Hence, continuation of proceedings against petitioners for the alleged offence punishable under Section 171F of IPC would not be justifiable and even if prosecution is taken to its logical end it would not end in conviction of the accused and thereby directing the petitioners undergone the ordeal of trial would definitely be abuse of process of law."
10. Further, the Coordinate Bench of this Court in Crl.P.No.15853/2013 dated 09.07.2019 in the case of Shivangouda Naik s/o Hanmanthraya vs. The State of Karnataka, discussed the applicability of provisions of Section 188 of IPC and Section 130 of Representation of People Act, at Para Nos.13 and 14 which reads as under:- 8
"13. In the case of Dr.K.P.Gopal Krishna (supra), this Court observed as under:
"In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court 9 cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the Court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India."
"14. In the case on hand, the records disclose that on the basis of the complaint filed by the Government official who was present at the polling booth, the respondent police have registered the FIR. But, the same is not in accordance with law. Admittedly, the complainant being a public servant has lodged a complaint before the police instead of filing it before the jurisdictional Magistrate. The allegations made in the complaint do not attract the 10 ingredients of Section 130 of Representation of People Act, 1951, as there are no specific allegations about canvassing nearing the polling station. Therefore, initiation of proceedings on the basis of the complaint filed before the police by the election officer is contrary to law and procedure prescribed."
11. Admittedly, in this case the charge-sheet has been filed by the Hutti Police Station, which is not permissible in view of Bar under Section 195 (1) of Cr.P.C. Therefore, taking such cognizance is bad in law. Apart from that absolutely, there is no material to show that there is contravention of Section 130 of Representation of People Act-1951 and 1988, against these petitioners. In view of the decision referred above and material placed before the Court, at this stage there is nothing to show that the said Section is applicable to the petitioners.
12. It is the duty of the Magistrate to put date and signature and time as to when the charge sheet is received before direction to Chief Ministerial Officer to verify and put up. In this regard the Rules 10 and 11 of the Karnataka Criminal Rules of Practice, 1968 reads as under:- 11
"10. Charge Sheet :- (1) As soon as a charge sheet is received by a Magistrate, he shall put his initials on the same together with the date of its receipt. The same shall be entered in Register No. I. The entries in the said Register shall show the number and names of the accused persons and the offences mentioned in the charge sheet. It shall be the responsibility of the Chief Ministerial Officer of the Court to see that such entries are made immediately after the charge sheet is initialled by the Magistrate.
(2) The charge sheet shall be examined and the Magistrate shall ascertain and take steps to secure, if not already produced:-
(i) the documents referred to in the charge sheet or certified extracts thereof in
the case of books or Registers in the custody of Public Officers;
(ii) the property seized in the case; and
(iii) the report under Section 154 of the Code.
12
(3) When the Magistrate sees sufficient
grounds to proceed with the case and
issues process to the accused the charge
sheet shall be entered in the Register of Criminal Cases (Register No. III).
11. On receipt of a complaint, the Magistrate shall have the same entered in Register No.II and shall have it entered in Register No.III, if he sees sufficient grounds to proceed and orders issue of process to the accused."
13. Further it is settled principle of law that if offence is non-cognizable one, then the Investigating Officer has to take permission from the Magistrate for investigation. The Coordinate Bench of this Court in Criminal Petition No.101997/2019 dated 10.12.2019 in the case of Vaggeppa Gurulinga Jangaligi vs. The State of Karnataka, has referred the Criminal Procedure Code and in Paras Nos.18 and 19 has observed as under:-
18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our judicial Magistrates as to how they have to approach and pass orders when requisition 13 is submitted by the SHO of police station seeking permission to investigate into the non-cognizable offence. The provision of Section 155 (1) and (2) of Cr.P.C. referred above make it very much clear that the SHO of the police station on receiving the information regarding the commission of non-cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155 (1) of Cr.P.C. Once the requisition is submitted to the Magistrate, it is for the jurisdictional Magistrate to consider the requisition submitted by the SHO of police station and pass necessary order either permitting the police officer to take up the investigation or reject the requisition. Section 155 (2) of Cr.P.C.
specifically provides that no police officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an "order" by the Magistrate permitting the police officer to investigate the non-cognizable offence is an important factor. The word without the 14 order of the Magistrate appearing in Subsection (2) of Section 155 of Cr.P.C.
makes it clear that the Magistrate has to pass an 'order' which means supported by reasons. On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word 'permitted' on the requisition submitted by the police itself which does not satisfy the requirement of Section 155 (2) of Cr.P.C. such an endorsement cannot be equated with the word 'Orde'.
19. Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:-
"INVESTIGATION AND PROSECUTION" 1. Report under Section 154 - (1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.15
2. (1) When a Magistrate directs an investigation of a case under Sections 155 (2), 156 (3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted."
14. I have also perused the order sheet filed by the learned counsel for the petitioner which does not discloses that for what offence the cognizance has taken and for which offence the summons is issued. There is a format of order sheet wherein the name of police station and name of accused is shown and the criminal case for the offence punishable under Section 171B of IPC and 130 of Representation of People Act-1951 and 1988 are shown. There is nothing on record to show that whether charge sheet is filed, if so when it is filed and 10.01.2019 straightaway summons came to be issued. Therefore, it shows that the learned JMFC has not at all applied its mind to the nature of allegations and the complaint filed. 16
15. It is the duty of the Court when any charge sheet is filed before the Court, the Magistrate directs the Sherestedar to verify, check and put up. Thereafter, on perusing the police report and material, if it discloses any cognizable offence then the Court has to take cognizance and then issue summons. There is no noting in this regard as to what the Magistrate has done. There is also no record to show that any permission was sought by the police for investigation.
16. Therefore, as the statement of complaint itself discloses that it is not certain as to whether any such meeting was held or not and place of incident is a public place. The statements of witnesses do not disclose conditions of the offences. It is a non-cognizable offence and police have not at all taken permission to investigate the matter. Therefore, the continuation of the proceedings against the petitioner for the alleged offence as stated above is not justifiable. Therefore, instead of directing the petitioners to face trial, which is nothing but abuse of process of law.
17
17. Further keeping in view the decision of the Hon'ble Supreme Court in the case of Neeharika Infrastructure Private Limited Vs. State of Maharashtra and others, reported in (2020) 10 SCC 118, the petitioner has made out grounds for allowing the petition. Accordingly, I proceed to p ass the following:
ORDER The petition filed under Section 482 of Cr.P.C. is allowed.
The proceedings of complaint, FIR and charge sheet in Hutti Police Station Crime No.194/2018 for the offences punishable under Section 171B and 188 of Indian Penal Code and Section 130 of Representation of People Act-1951 and 1988, pending on the file of Prl. Civil Judge (Jr. Dn) and JMFC at, Lingasugur is hereby quashed.
Sd/-
JUDGE KJJ