Karnataka High Court
Sri P C Mohan vs Station House Officer on 15 December, 2018
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.896 OF 2012
BETWEEN:
SRI P.C. MOHAN,
S/O P. CHIKKAMUNISWAMAPPA,
AGED MAJOR, R/AT # 64,
MISSION ROAD, BANGALORE.
... PETITIONER
(BY SMT. M.D. ANURADHA URS, ADVOCATE
FOR SRI C.V. SUDHINDRA, ADVOCATE)
AND:
STATION HOUSE OFFICER,
REPRESENTED BY SRIRAMPURA
POLICE STATION.
... RESPONDENT
(BY SRI S. CHANDRASHEKARAIAH, H.C.G.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 04.08.2012 AS PER ANNEXURE-A PASSED IN
C.C.NO.11574/2009 ON THE FILE OF THE VII A.C.M.M.,
BANGALORE AND ALLOW THE APPLICATION FILED BY THE
ACCUSED NO.3 UNDER SECTION 258 OF CODE OF CRIMINAL
PROCEDURE.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This Revision petition is filed by the petitioner, who is said to be accused No.3 in C.C.No.11574/2009 for offences punishable under Section 171-C of IPC read with Section 127-A of the Representation of People Act (hereinafter referred to as 'Act', for brevity). The application filed by the petitioner under Section 258 of Cr.P.C. has been dismissed by the Court below dated 4.8.2012. Aggrieved by the same, the petitioner is before this Court.
2. The factual matrix of the case of the prosecution is that the squad attached to Srirampura Police station while on patrolling during election time, on 22.4.2009 at about 10.15 p.m. intercepted a Qualis car bearing registration No.KA-03/MB-5223 and on verification they found accused Nos.1, 2 and 4 (not the petitioner) were possessing cash of Rs.1,000/-, 3 handbills and plastic badges relating to the petitioner. The same has been sized under panchanama and after the investigation, filed charge sheet against this petitioner, who is said to be the beneficiary of election. The accused Nos. 2 and 4 said to be pleaded guilty and paid fine. Accused No.3, the petitioner filed application to stop the proceedings under Section 258 of Cr.P.C. and to discharge him from the charges. Learned Magistrate rejected the application. Hence, this petition.
3. Learned counsel for the petitioner contended that there is no allegation against this petitioner in respect of attracting Section 127 of the R.P.Act or Section 171 of the IPC. The name of the printers or publishers were not at all forthcoming in the complaint or panchanama. There is chances of getting the handbills printed by the opposition parties to implicate 4 the petitioner is not ruled out and without recording the statement of the printer and publisher, the charges framed against the petitioner/accused cannot be accepted as there is no prima facie material to frame charges or record the plea of the petitioner. This petitioner is not at all committed the offence. If the co- accused are belongs to this petitioner ought not to have pleaded guilty to implicate this petitioner. Hence, prays for quashing the order of the Court below.
4. Per contra, learned HCGP Sri.S.Chandrashekariah, contended that there is prima facie case made out to record the plea against the petitioner. The plastic badges contain the name of the petitioner and he is the beneficiary. Hence, he supported the order of the Magistrate and prays for dismissal of the revision petition.
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5. Heard both counsels.
6. It is not in dispute that the police seized the vehicle bearing No. No.KA-03/MB-5223 on the date of alleged offence and they also seized handbills and plastic badges. The contention of the petitioner is that the petitioner cannot be held responsible to the badges and handbills that were carried by some persons. The FIR and panchanama prepared by the police goes to show that accused Nos.1, 2 and 4 were carrying the handbills and plastic badges without the permission of the Election Commission and not even a whisper about the absence of name of the printer and publisher. Copy of the handbill produced by the learned HCGP shows apart from the photograph of the petitioner herein, there is another person, who is said to be Secretary of the BJP and some other photographs of leaders also found in the handbills, but names of 6 other persons not at all mentioned in the complaint and panchanamas. Complaint refers only the photo of the petitioner was present. But the handbills produced by the HCGP shows there are many persons' photos were found. It may be, the petitioner could be the beneficiary of the election, but that itself is not sufficient to hold that he has committed offence under Section 127-A of the Act. For better understanding, Section 127-A of the Act is extracted below:
" Section 127A in The Representation of the People Act, 1951 "127A. Restrictions on the printing of pamphlets, posters, etc.--
(1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.
(2) No person shall print or cause to be printed any election pamphlet or poster--
(a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and 7
(b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document,--
(i) where it is printed in the capital of the State, to the Chief Electoral Officer; and
(ii) in any other case, to the district magistrate of the district in which it is printed.
(3) For the purposes of this section,--
(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression "printer" shall be construed accordingly; and
(b) "election pamphlet or poster" means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand-bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.
(4) Any person who contravenes any of the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both."8
7. A bare reading of the provision goes to show that no person shall print or cause to be printed any election pamphlet or post without a declaration as to the identify of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate. The handbills seized do not contain the name of the printer and publisher and there is no declaration to that effect signed by the petitioner and attested by two persons to whom he is personally known. But the FIR and complaint shows that accused Nos.1, 2 and 4 were carried the handbills without the permission of the Election Commission. Bare reading of the provision and ingredients stated in the FIR, complaint or mahazar, absolutely there is no connection in respect of the offence committed and the complaint lodged against the petitioner. The averments in the complaint shows 9 that they were transporting the handbills with the permission of the Election Commission to use by next day. That means the accused were permitted to use the said badges or pamphlets only on the next day of its seizure. The averments in the complaint not at all reveals the accused used the badges and the handbills without the name of the printer and publisher, but they seized the same while transporting without the permission of the Election Commission which ought to have used only by next day, as the Election Commission granted permission to use the same only on 23.4.2009. Once the Election Commissioner accorded permission to use the said badges on 23.4.2009, the said badges were seized just two hours prior to the said date. That means after 12 a.m., the accused can use the same and no offence could be committed. Even otherwise, the accused obtained the 10 permission of the Election Commission to use the same by next day and while carrying the same earlier day cannot be found fault with the accused. Once the Election Commission granted permission, the police have no authority to question the same, but the police without looking to the facts, just registered a case against the accused holding that they transported the same without the permission of Election Commission. Therefore, the counsel for the petitioner rightly contended that there is no nexus between the offence committed and ingredients of provision under Section 127-A of the R.P.Act shown in the charge-sheet.
8. Though the defence of the counsel for the petitioner that co-accused who were pleaded guilty could not have belong to the person of the petitioner, definitely they could not have implicated this petitioner, if they are real followers of the petitioner. That is all 11 the defence available only during trial. But in this case, very provisions of Section 127-A of the R.P.Act is not at all attracted for the allegation made in the complaint against the petitioner. Apart from that, as already stated, the photograph contains photos of other persons, other than this petitioner, but the respondent-police only implicated this petitioner and without any proper investigation, filing of charge sheet against the petitioner is not correct.
9. As observed above, there is no whisper about the non-mentioning of name of the printer and publisher, the declaration of signature to attract Section 127-A of the R.P.Act, but it contains only they carried a day prior to the date of permission which was granted by the Election Commission.
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10. Counsel for the petitioner has relied upon the Judgments in Kanwar Lal gupta -v- Amar Nath Chawla & others (1975 SCC (3) 646 and Chanda Singh -v- Choudhary Shiv Ram Verma and others (1975 sc 403). However, these two cases were decided only after the trial. A perusal of the documents produced by the prosecution, absolutely there is no ingredients to attract Section 127-A of the R.P.Act. Therefore, the trial Judge ought to have stopped the proceedings against the petitioner under Section 258 Cr.P.C. Merely because co-accused were pleaded guilty, that itself is not a ground to frame charges against this petitioner. The trial Court proceeded only based upon the statement of accused Nos.1, 2 and 4 and dismissed the application of the petitioner under Section 258 of Cr.P.C., is erroneous. Therefore, the order under revision requires interference by this Court. 13
Accordingly, the revision petition is allowed. The order of the learned VII ACMM, Bangalore dated 4.8.2012 in C.C.No.11574/2009 is set-aside. The proceedings against this petitioner is stopped/dropped under Section 258 Cr.P.C.
Registry is directed to forward a copy of this order to the concerned Court, forthwith.
SD/-
JUDGE ln.