Karnataka High Court
Fakirayya And Anr vs The State Of Karnataka on 5 November, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC-K:8071
CRL.P No. 200637 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 200637 OF 2024
(482(Cr.PC)/528(BNSS)-)
BETWEEN:
1. FAKIRAYYA S/O DEVINDRAPPA
AGE: 36 YEARS OCC: DRIVER
R/O: MALLADEVARAGUDDA,
TALUK: DEODURGA,
DIST: RAICHUR-584111.
2. HANUMANTRAYA S/O AYYANNA
AGE: 72 YEARS OCC: DOCTOR,
R/O: S/187, N EAR BUS STAND ARAKERA,
4TH BLOCK,
TALUK: DEODURGA
DIST: RAICHUR-586111
...PETITIONERS
Digitally signed
by KHAJAAMEEN (BY SRI. MAHANTESH PATIL, ADVOCATE)
L MALAGHAN
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA
THROUGH DEODURGA POLICE STATION,
TALUK DEODURGA,
DIST: RAICHUR
REPRESENTED BY ADDL. SPP.
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
...RESPONDENT
(BY SRI. JAMADAR SHAHABUDDIN, HCGP)
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NC: 2024:KHC-K:8071
CRL.P No. 200637 of 2024
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.503/2023 (CRIME NO.79/2023) BY THE RESPONDENT
POLICE AND ORDER DATED 08.06.2023, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 171 (F) OF IPC AND UNDER
SECTIONS 177 AND 192 (A) OF IMV ACT AND UNDER
SECTION 3 OF KARNATAKA OPEN PLACE DISGIRUREMENT
ACT, 1951 AND 1981, PENDING ON THE FILE OF LEARNED
CIVIL JUDGE AND JMFC, DEODURGA.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
ORAL ORDER
Petitioners are seeking quashing of the charge-sheet filed in C.C.No.503/2023 and the order dated 08.06.2023 passed by the Court of Civil Judge and JMFC, Deodurga, taking cognizance of offences punishable under Section 171 (f) of IPC, Sections 177 and 192 (A) of IMV Act, 1988 and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.
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02. In brief, the charge-sheet allegations are that, petitioners being the driver and owner of an Ambulance bearing Reg.No.KA-05-AK-6853 has exhibited a photo of one Sri. Shivanagouda Nayak, a BJP candidate and the said Ambulance was parked in front of Nadagoud Hospital, Arakera.
03. It is contended by the learned High Court Government Pleader that in spite of the code of conduct issued in view of the Assembly Election in the year 2023, accused exhibited the photo of a candidate contesting for the election on the vehicle and thereby violated the code of conduct issued in view of the election etc.,
04. Learned counsel for the petitioners has contended that the ingredients of the offences alleged against the petitioners are not made out and even otherwise, the notification for holding the election was published on 13.04.2023, last date for nomination was on 20.04.2023, and date of election was on 10.05.2023, whereas offences are alleged to have been committed on -4- NC: 2024:KHC-K:8071 CRL.P No. 200637 of 2024 04.04.2023. He contended that when offences are alleged to have been committed, there was no code of conduct as the notification itself was issued on 13.04.2023. He further contended that to attract an offence punishable under Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981, there should be a notification issued by the Government in respect of the place in question, in the present case Arakera, Tq: Deodurga.
05. In support of his contentions, learned counsel has placed reliance on a decision of the Coordinate Bench of this Court in the case of Sri. Mohammed Rafiq vs. State of Karnataka and another, in Criminal Petition No.6309/2022 disposed of on 26.05.2023.
06. To attract offences punishable under Sections 177 and 192 of M.V. Act, 1988, it has to be shown that the vehicle in question was used without registration or in contravention of the provisions of Section 39 of the said Act or any other provisions of the M.V. Act. In the present case, admittedly the vehicle was registered and the -5- NC: 2024:KHC-K:8071 CRL.P No. 200637 of 2024 registration number was also mentioned in the FIR itself. It is nowhere stated as to what are the other contraventions committed by the petitioners under the M.V. Act.
07. To attract an offence under Section 171 (f) of IPC, it has to be shown that, petitioners have done undue influence or personation at an election. Undue influence at elections and personation at elections are defined under Sections 171C and 171D of IPC, which are extracted hereunder:-
"171C.- Undue influence at elections.- (1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-section (1), whoever-
(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or -6- NC: 2024:KHC-K:8071 CRL.P No. 200637 of 2024
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub- section (1), (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.
171D.- Personation at elections.- Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election; [Provided that nothing in this section shall apply to a person who has been authorized to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector.]"
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08. Act allegedly committed by the petitioners do not fulfill the ingredients of above Sections. It cannot be said that petitioners have interfered or attempted to interfere with the free exercise of any electoral right or threatened any candidate or voter or attempted to induce them etc., as explained in the above provisions.
09. Insofar as Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 is concerned, it is relevant refer to Paras No.6 and 7 of the decision relied on by the learned counsel for petitioners;
"Para No.6 .........
"1. Short title and commencement.- (1) This Act may be called the Karnataka Open Places (Prevention of Disfigurement) Act, 1991.
(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 Corporation Act, 1976 or under any other law, on the fifth day of May, 1981; and -8- NC: 2024:KHC-K:8071 CRL.P No. 200637 of 2024
(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 by notification appoint and different dates may be appointed in respect of different areas."
Reading of Section 1 (2) (i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore, Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1) (2) (ii) of the Act says that the same 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.
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NC: 2024:KHC-K:8071 CRL.P No. 200637 of 2024 Para No.7. But, no such Notification was issued in respect of Muddebihal. The Notification was issued on 09.07.1991 vide Karnataka Gazettee dated 08.08.1991 including Gulbarga, apart from the above cities. But, no other notifications are issued. When such being the facts and circumstances of the case, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law. This Court in an unreported order passed in Criminal Petition No.505/2017 along with connected matters dated 20.06.2018 also considred similar issue and observed that no notification was issued particularly in respect of respective municipal area and quashed the initiation of proceedings invoking the provisions of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981."
10. In the present case, no such notification is said to have been issued in respect of Arakera Tq: Deodurga. As held in the above decision, unless the Act is applicable to a particularly City and Municipal area, the initiation of the proceedings under the said Act is unsustainable in law.
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11. For the aforementioned reasons, the proceedings against the petitioners are liable to be quashed. Accordingly, the following;
ORDER I. The petition is allowed.
II. The entire proceedings pending in C.C.No.503/2023 against petitioners on the file of the Civil Judge and JMFC, at Deodurga, are quashed.
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(MOHAMMAD NAWAZ) JUDGE KJJ List No.: 1 Sl No.: 27