Karnataka High Court
Syed Yunus @ Yunush vs State By Hunsur Town Police on 20 June, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO.505/2017
C/W
CRL.P. NOs. 511/2017, 512/2017, 953/2018,
954/2018, 955/2018, 956/2018, 957/2018,
1086/2018, 1087/2018, 1088/2018.
IN CRL.P NOs.505/2017, 511/2017, 512/2017
BETWEEN
SYED YUNUS @ YUNUSH
S/O SYED YAKHUB
AGED ABOUT 37 YEARS
R/AT SHABBIR NAGAR
HUNSUR TOWN,
MYSORE-571105
... PETITIONER
(COMMON IN ABOVE 3 PETITIONS)
(BY SRI.MOHAMMED TAHIR, ADV.)
AND
1. STATE BY HUNSUR TOWN POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE-560 001
2. RAMESH
AGED ABOUT 40 YEARS
MUNICIPAL COMMISSIONER
NAGARA SABHE, HUNSUR TOWN
MYSORE-571105
... RESPONDENTS
(COMMON IN ABOVE 3 PETITIONS)
(BY SRI. S. RACHAIAH, HCGP)
2
CRIMINAL PETITION NO.505/2017 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C i.e.
CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.469/2016 IN CR.NO.288/2015 PENDING ON THE
FILE OF PRL. SR. CIVIL JUDGE AND J.M.F.C., HUNSUR,
MYSURU DIST., AND THIS PETITIONER IS ARRAYED AS
ACCUSED NO.7 FOR THE ALLEGED OFFENCES P/U/S 3
AND 5 OF KARNATAKA OPEN PLACES DISFIGUREMENT
(PREVENTION) ACT.
CRIMINAL PETITION NO.511/2017 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C I.E.
CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.499/2016 IN CRIME NO.294/2015 PENDING ON
THE FILE OF PRINCIPAL SR. CIVIL JUDGE AND J.M.F.C.,
HUNSUR, MYSORE DISTRICT AND THIS PETITIONER IS
ARRAYED AS ACCUSED NO.7 FOR THE ALLEGED
OFFENCES P/U/S 3 AND 5 OF KARNATAKA OPEN PLACES
DISFIGUREMENT (PREVENTION) ACT, 1981.
CRIMINAL PETITION NO.512/2017 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C I.E.
CHARGE SHEET AGAINST THE PETITIONER IN
C.C.NO.500/2016 IN CRIME NO.295/2015 PENDING ON
THE FILE OF PRINCIPAL SR. CIVIL JUDGE AND J.M.F.C.,
HUNSUR, MYSORE DISTRICT AND THIS PETITIONER IS
ARRAYED AS ACCUSED NO.7 FOR THE ALLEGED
OFFENCES P/U/S 3 AND 5 OF KARNATAKA OPEN PLACES
DISFIGUREMENT (PREVENTION) ACT.
IN CRL.P. NOs. 953/2018,954/2018
955/2018, 956/2018, 957/2018,
1086/2018, 1087/2018, 1088/2018.
BETWEEN
1. JAKEER HUSEN
S/O LATE M D KHASIM
AGED ABOUT 41 YEARS
R/AT SETHUVE REHAMATH MOHALLA
HUNSUR TOWN, MYSORE
3
2. ABRAHAR
S/O BASHID
AGED ABOUT 38 YEARS
R/AT MARIGUDI BEEDI
HUNSUR TOWN, MYSORE
3. VASIM
S/O AKRAM SHARIF
AGED ABOUT 25 YEARS
R/AT SHABBIR NAGAR
HUNSUR TOWN, MYSORE
4. AKMAL PASHA
AGED ABOUT 28 YEARS
S/O EQBAL AHAMAD
R/AT HUNCYA VILLAGE
HUNSUR TOWN, MYSORE
5. MUJIJ AHAMAD
S/O LATE MAHAMAD ESMAYIL
AGED ABOUT 43 YEARS
R/AT LALBAND STREET
HUNSUR TOWN, MYSORE
6. AUBJAL ULLA KHAN
S/O AUBDULA REHAMAN @ PAILWAN
AGED ABOUT 43 YEARS
R/AT LALBAND BEEDI
HUNSUR TOWN, MYSORE
... PETITIONERS
(COMMON IN ABOVE 8 PETITIONS)
(BY SRI.MOHAMMED TAHIR, ADVOCATE)
AND
1. STATE BY HUNSUR TOWN POLICE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX BUILDING
BANGALORE-560 001
4
2. MUNICIPAL COMMISSIONER
REP. BY RAMESH NAGARA SABHE
HUNSUR TOWN, MYSORE. ... RESPONDENTS
(COMMON IN ABOVE 8 PETITIONS)
(BY SRI. S. RACHAIAH, HCGP)
CRIMINAL PETITION NO.953/2018 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C, CHARGE
SHEET AGAINST THE PETITIONERS IN C.C.NO.501/2016
IN CR.NO.289/2015 PENDING ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HUNSUR,
MYSORE DISTRICT AND THIS PETITIONER IS ARRAYED AS
ACCUSED NOs.6, 8, 9, 10, 11, 12 FOR THE ALLEGED
OFFENCES P/U/Ss. 3 & 5 OF KARNATAKA OPEN PLACED
DISFIGUREMENT (PREVENTION) ACT, 1981.
CRIMINAL PETITION NO.954/2018 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C, I.E.
CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.493/2016 IN CR.NO.290/2015 PENDING ON THE
FILES OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HUNSUR, MYSORE DISTRICT AND THIS PETITIONERS ARE
ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11, 12 FOR THE
ALLEGED OFFENCES P/U/Ss. 3 AND 5 OF KARNATAKA
OPEN PLACES DISFIGUREMENT (PREVENTION) ACT, 1981.
CRIMINAL PETITION NO.955/2018 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C, I.E.
CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.495/2016 IN CR.NO.291/2015 PENDING ON THE
FILES OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HUNSUR, MYSORE DISTRICT AND THIS PETITIONERS ARE
ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11 AND 12 FOR
THE ALLEGED OFFENCES P/U/Ss. 3 AND 5 OF KARNATAKA
OPEN PLACES DISFIGUREMENT (PREVENTION) ACT, 1981.
CRIMINAL PETITION NO.956/2018 IS FILED
U/S.482 CR.P.C PRAYING TO QUASH THE ANNEXURE-C,
I.E. CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.497/2016 IN CR.NO.292/2015 PENDING ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
5
HUNSUR, MYSURU DISTRICT AND THIS PETITIONERS ARE
ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11 AND 12 FOR
THE ALLEGED OFFENCE P/U/Ss. 3 AND 5 OF KARNATAKA
OPEN PLACES DISFIGUREMENT (PREVENTION) ACT, 1981.
CRIMINAL PETITION NO.957/2018 IS FILED U/S.482
CR.P.C PRAYING TO QUASH THE ANNEXURE-C, CHARGE
SHEET AGAINST THE PETITIONERS IN C.C.NO.498/2016
IN CR.NO.293/2015 PENDING ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HUNSUR,
MYSORE DISTRICT AND THIS PETITIONER IS ARRAYED AS
ACCUSED NOs.6, 8, 9, 10, 11, 12 FOR THE ALLEGED
OFFENCES P/U/Ss. 3 & 5 OF KARNATAKA OPEN PLACES
DISFIGUREMENT (PREVENTION) ACT.
CRIMINAL PETITION NO.1086/2018 IS FILED
U/S.482 CR.P.C PRAYING TO QUASH THE ANNEXURE-C,
I.E. CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.469/2016, IN CR.NO.288/2015 PENDING ON THE
FILES OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HUNSUR, MYSORE DISTRICT AND THESE PETITIONERS
ARE ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11 AND 12
FOR THE ALLEGED OFFENCES P/U/Ss. 3 AND 5 OF
KARNATAKA OPEN PLACES DISFIGUREMENT
(PREVENTION) ACT.
CRIMINAL PETITION NO.1087/2018 IS FILED
U/S.482 CR.P.C PRAYING TO QUASH THE ANNEXURE-C,
CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.499/2016, IN CR.NO.294/2015 PENDING ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HUNSUR, MYSORE DISTRICT AND THIS PETITIONER IS
ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11, 12 FOR THE
ALLEGED OFFENCES P/U/Ss. 3 & 5 OF KARNATAKA OPEN
PLACES DISFIGUREMENT (PREVENTION) ACT.
CRIMINAL PETITION NO.1088/2018 IS FILED
U/S.482 CR.P.C PRAYING TO QUASH THE ANNEXURE-C,
I.E. CHARGE SHEET AGAINST THE PETITIONERS IN
C.C.NO.500/2016, IN CR.NO.295/2015, PENDING ON THE
FILES OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
HUNSUR, MYSORE DISTRICT AND THESE PETITIONERS
ARE ARRAYED AS ACCUSED NOs.6, 8, 9, 10, 11 AND 12
6
FOR THE ALLEGED OFFENCES P/U/Ss. 3 AND 5 OF
KARNATAKA OPEN PLACES DISFIGUREMENT
(PREVENTION) ACT.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS/ADMISSION THIS DAY ALONG WITH
INTERLOCUTORY APPLICATION FOR STAY, THE COURT
MADE THE FOLLOWING:
ORDER
The learned HCGP is directed to take notice for Respondent Nos. 1 & 2 -State.
2. The petitioners/accused persons in the above cases have sought for quashing of proceedings in the following cases registered against them for the offences punishable under Sections 3 & 5 of the Karnataka Open Place Disfigurement Act, 1951 & 1981, now pending on the file of the Addl. Civil Judge and CJM, Hunsur, Mysuru District.
Sl.No. Crl.P. No. C.C. No. Cr.No 1 505/2018 by 469/2016 288/2015 Petitioner (A7) 2 511/2018 by 499/2016 294/2015 Petitioner (A7) 3 512/2018 by 500/2016 295/2015 Petitioner (A7) 4 953/2018 by 501/2016 289/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 5 954/2018 by 493/2016 290/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 7 6 955/2018 by 495/2016 291/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 7. 956/2018 by 497/2016 292/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 8. 957/2018 by 498/2016 293/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 9. 1086/2018 by 469/2016 288/2015 Petitioners (A6, A8, A9, A10, A11, A12)_ 10. 1087/2018 by 499/2016 294/2015 Petitioners (A6, A8, A9, A10, A11, A12) 11. 1088/2018 by 500/2016 295/2015 Petitioners (A6, A8, A9, A10, A11, A12)_
3. The offences alleged against the petitioners (A6 to A12) are under Sections 3 & 5 of the Karnataka Open Places Disfigurement (Prevention) Act, 1951 & 1981 ( hereafter referred to as 'Act' for brevity'.
4. The allegation in the FIR in all the cases that on 24.12.2015, in lieu of Hanuma Jayanthi occasion some of the accused persons were observing Hanuma Jayanthi and on 25.12.2015 the Muslims have observed Id Milad festival. At the time of Hanuma Jayanthi, the petitioners/accused along with other accused persons without taking permission have fixed banners, flags, buntings and flexes at difference places in different ward numbers of different areas, as stated in respective 8 petitions. On the basis of such allegation, the police have registered a case under the above said provisions. ` 5. Heard the learned counsel for the petitioners and the learned HCGP for respondents 1 and 2.
6. It is contended by the learned counsel for the petitioner that there is a legal bar to initiate the proceedings and to proceed with the matter as per Section 1(2)(ii) of the Act. The Investigating Officer has no jurisdiction to investigate the matter without there being a notified area by the State.
7. It is the allegation in the first information report in all the cases that on 24.12.2015 in lieu of Hanuma Jayanthi, the petitioners-accused persons along with other accused persons, without taking permission have fixed the banners, buntings, flexes in Hunsur City in various ward numbers viz., Lalband beedi, I.K. Road, B.M. bye-pass road, Shabir nagar, Narasimhaswamy Tittu etc. unauthorizedly without obtaining permission from the concerned authority. On the basis of such allegations, the police have 9 registered a case under Sections 3 and 5 of the Act, 1981.
8. On perusal of the provision under the said Act, Section-1 reads as follows :-
(1) This Act may be called the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.
(2) It shall -
(i) be deemed to have come into force in the cities of Bangalore, Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporations Act, 1976 or under any other law, on the fifth day of May 1981 and
ii) come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may my notification, appoint and different dates may be appointed in respect of different areas.
9. Section (1)(2)(i) of the Act states that, it is deemed to have come into force in the cities of Bangalore, Mysore, Hubli-Dharwar, Mangalore and Belgaum 10 constituted or continued under the Karnataka Municipal Corporations Act, 1976 or under any other law, on the fifth day of May 1981. Section (1)(2)(ii) states that it shall come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification, appoint and different dates may be appointed in respect of different areas.
10. Admittedly, as per the submission of the learned HCGP that the State Government has not issued any notification notifying the Hunsur Municipality or the particular area in which the alleged offence has been committed in order to attract the provisions of the said Act.
11. Time was granted to the learned HCGP to ascertain whether any such notification has been issued under the said Act. However, today the learned HCGP submits that as contemplated under Section (2) (ii) of the Act, no notification has been issued under the said Act. 11
12. Under the above said circumstance, registration of the case and continuation of the investigation is vitiated, as the allegations pertains to the areas which are notified. Hence, the same is liable to be quashed. Accordingly, the following order is passed:
ORDER
i) The petitions are hereby allowed.
ii) All further proceedings in the aforesaid Chargesheet Cases arising out of respective Crime Numbers noted above, pending on the file of Additional Civil Judge (Sr.Dn.) and CJM Hunsur, Mysore District and all further investigation therein, insofar as the petitioners herein concerned, are hereby quashed.
In view of disposal of these cases, the Interlocutory Applications filed for stay in these Criminal Petitions do not survive for consideration. Accordingly, the applications stand disposed of.
Sd/-
JUDGE KGR*