Bangalore District Court
State By Ranebennur Town Police Station vs Shankar on 25 July, 2022
1 CC.No.10975/22
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 25th day of July, 2022.
:Present:
Smt. PREETH. J., B.A.L., LLB.,
XLII Addl.CMM Judge,
(Spl. Court for trial of cases filed against sitting as
well as former MPs/MLAs,
triable by Magistrate in the State of Karnataka) [
CC.No.10975/2022.
(Old.CC.No.70/2019)
Complainant: State by Ranebennur Town Police Station,
Ranebennur Town, Haveri.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: Shankar,
S/o. Ramachandra, 56 Years,
R/o. Beereshwara Nagar,
Ranebennur, Haveri.
(By Sri.V.M.J., Advocate)
1. Date of commission of offence : 24.04.2018.
2. Date of report of offence : 24.04.2018.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 06.06.2022.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Sreedhar S.
2 CC.No.10975/22
5. The date of recording of evidence : 02.03.2022.
6. The date of closing of evidence : 14.07.2022.
7. Offences complained of : U/s.171(E) of IPC
& Sec.123 of RP Act.
8. Opinion of the Judge : Accused found not
guilty
=============
JUDGMENT
01. That the Police Sub-Inspector of Law and Order Ranebennur Town Police Station, Ranebennur Town Circle, Haveri has filed charge sheet against the accused for the offences punishable under section 171(E) of IPC and 123 of Representation of People Act.
02. The case of the prosecution in brief is as follows:
The accused with an intention of contesting for the Election from KPJP Party in the Ranebennur Vidhana Sabha Constituency, with an intention of distribution the Plastic Auto Models to the voters as gift so as to induce the voters, on 24-04- 2018 the accused brought 5 carton boxes of Plastic Autos containing 7200 Autos (toys) through SRE Travels and got the same unloaded at the office of the SRE Travels near Forest Office of Ranebennur. Thus, the accused has violated the By- 3 CC.No.10975/22 Election Model Code of Conduct and thereby committed the offences punishable under section 171(E) of IPC and section 123 of RP Act.
03. On the basis of the complaint of CW-1, the case has been registered under Cr.No.72/2018 against the accused for the offences punishable under section 171(E) of IPC and section 123 of RP Act. Thereafter, the Investigating Officer visited the spot and the spot mahazar was drawn, recorded the statements of the witnesses and on completion of the investigation, the charge sheet has been filed against the accused. On receipt of charge sheet, the court was pleased to take cognizance of the said offences.
04. On appearance of the accused, he was enlarged on bail. The copies of the prosecution papers were furnished to the accused person as contemplated under section 207 of Cr.P.C. Thereafter, heard before charge and framed charge and read over to the accused for the said offences. He has not pleaded guilty and claimed to be tried. Hence, the matter was posted for evidence.
4 CC.No.10975/22
05. In order to bring home the guilt of the accused person, the prosecution has examined all the Eight Witnesses as PW-01 to 08 and got marked 13 documents as Ex.P.01 to Ex.P.13. After closure of the prosecution evidence, the accused was examined under section 313 of Cr.P.C., so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The accused has denied his involvement in the crime and did not choose to lead any defence evidence on his behalf.
06. I have heard the arguments addressed by the learned Senior Assistant Public Prosecutor and the learned counsel for the accused.
07. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 24.04.2018, the accused with an intention of contesting for the Election from KPJP Party in the Ranebennur Vidhana Sabha Constituency, with an intention of distribution the Plastic Auto Models to the voters as gift so as to induce the voters, which is a symbol of the said party, brought 5 carton boxes of Plastic Autos containing 7200 Autos (toys) through SRE Travels and thereby the accused has violated the By-Election Model 5 CC.No.10975/22 Code of Conduct and committed the offences punishable under section 171(E) of IPC and 123 of RP Act?
2. What Order?
08. The findings of this court on the above points are:
Point No.1 : In the Negative, Point No.2 : As per final order for the following:
REASONS
09. Point No.1: In order to bring home the guilt of the accused, the prosecution has examined the complainant Sri. Shridhar S., as PW-1. In his chief - examination, he has deposed that on 24.04.2018, when he along with CW-4, 5 and 6 were on duty, he received a message on his phone stating that some one from KPJP Party has brought some Plastic Auto Toys, which is the symbol of the said party and kept the same in SRE Travels situated near the Forest Office of Ranebennur Taluk. Immediately, they have been to the spot and when they enquired, they were informed that 15 carton boxes are received in their office from Bangalore, SRE Travels and the same was brought by the candidate of the said party. He has deposed that 6 CC.No.10975/22 he opened the boxes in the presence of the panchas and found 7,200 Plastic Auto Toys in total. He has deposed that he came to know that the candidate must have brought that same to distribute the same to the voters. And, he seized the same in the presence of panchas and later, came to the Police Station and lodged the complaint. The mahazar is marked as Ex.P1 and the complaint as Ex.P2. The photos of the toys are marked as Ex.P3 and 4.
10. The prosecution has also examined the mahazar witnesses as PW-2 and 4. They have deposed that 4 Years back, they had been to Ranebennur Police Station for their personnel work and there the police took their signatures on one document. When, the photos which were marked as Ex.P3 and 4 were shown to them, they have deposed that they do not remember as to where the same is taken. They have deposed that the police have not drawn any mahazar in their presence nor they have seized any Plastic Auto Toys. They have identified their signatures on the seizure mahazar which is marked as Ex.P1.
7 CC.No.10975/22
11. At the request of Lrd. APP., both of them are treated as hostile and permission was accorded to cross - examine them. Even, in the cross - examination, they have not supported the prosecution case with regard to drawing of the mahazar and also the seizure. They have denied all the suggestions put to them.
12. The A.S.I., of Ranebennur Police Station, who is the eye - witness to the alleged incident is examined as PW-3. He has deposed in the lines of the evidence given by PW-1, who is the complainant. Another eye-witness is examined as PW-5, who is said to be the executive of SRE Travels. He has deposed that he never worked in SRE Travels of Ranebennur. He has deposed that he is working as a Auto Driver in Ranebennur for the last 12 - Years. He know the accused person, as he is a Political Leader. He has not given any statement before the police.
13. At the request of Lrd. APP., PW-5 is treated as hostile and permission was accorded to cross - examine him. Even, in the cross - examination, he has not supported the prosecution case. He has denied all the suggestions put to him. 8 CC.No.10975/22
14. Lrd. Sr. APP has given up the evidence of CW-5 and 8, as such they are dropped. The Police Officer who received the complaint and registered the case against the accused and the I.O who investigated the crime and filed the charge sheet is examined as PW-6 and 8. They have deposed in the lines of their role. FIR is marked as Ex.P8.
15. Now, on analyzing the overall evidence of the prosecution, though the material witnesses have supported the case of the prosecution, if the accused must be punished for the alleged offence under section 171(E) of IPC, firstly the prosecution must prove that the accused has given gratification to any person with the object of inducing him or any other persons to exercise any electoral right or of rewarding any persons for having exercised any such right or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right. Only, if this is proved, then it amounts to the offence of Bribery which is punishable under section 171(E) of IPC.
9 CC.No.10975/22
16. Here, in the case on hand, CW-1 has lodged the complaint on the surmises that the accused has brought the articles to gratify the voters and seek their votes in his favour. And evidence of the witnesses are also to that effect only. On the other hand, the accused has got the seized property released by the order of this court and has taken the same to his custody, wherein, he has stated that he is a Business Man and from the order sheet, it also goes to show that the accused has taken the plea that he has purchased the said toys to give to the candidates of the other constituencies as the Auto is the symbol of their party. Such being the case, when the accused has not distributed any toys to the voters nor did he seek any votes from the voters, this court on surmises cannot accept the contention of the prosecution that the accused has brought the toys to bribe the voters of the Ranebennur Constituency. Moreover, if one sees this case, in a practical manner no politician will even think of bribing the voters by giving them a Plastic Auto Toys. The oral evidence and materials on record is not suffice to constitute the alleged offences. 10 CC.No.10975/22
17. Now, coming to section 123 of the R.P. Act, it is dealt under Part-VII of the R.P. Act, which deals with the Corrupt Practices and Electoral Offences: Part-VII, consists of Three Chapters, i.e., Chapter-I relates to Corrupt Practices; Chapter-II has been deleted; and Chapter-III relates to Electoral Offences. Section 123 of the R.P. Act comes under Chapter-I, therefore, the complaint as regards a Corrupt Practice in an Election and not an Electoral Offences. Electoral Offences are separately dealt under Chapter-III from Sections 125 to 136 of R.P. Act.
18. The R.P. Act has distinguished any violation of the R.P. Act, into corrupt practices and/or electoral offences. The difference being that for corrupt candidate practices, to be any person involved in claiming such a corrupt practices has to approach appropriate Election Commission seeking for disqualification of candidate, if such a candidate has resorted to using of corrupt practices during his/her election. The electoral offences however, on the other hand being more than mere corrupt practices, would though result in disqualification, but would also entail criminal prosecution. Thus, the degree of proof and/or the requirement in respect of the corrupt practices 11 CC.No.10975/22 and/or electoral offences are different. There is an overlap as regards some of the aspects between electoral offences and corrupt practices. This being so for the reason that even an electoral offence if proved would result in disqualification of candidate in terms of corrupt practices under sections 123 of R.P. Act.
19. The above referred section 123 coming under the heading Corrupt Practices and there being a separate Chapter for Electoral Offences, it cannot be said that violation of section 123 would amount to a penal offence. At this juncture, I would like to rely upon the decision of the Hon'ble High Court of Karnataka (Dharwad Bench) in CRIMINAL PETITION NO.100964/2020 between Sri.B.S. Yediyurappa Vs. State of Karnataka and another, wherein, it is held that:
"An action for on complaint as regards violation of section 123 regards of the Representation of Peoples Act, 1951, i.e., on account of a corrupt practice being committed is limited to the candidate, resulting in his disqualification or voiding of his/her result in the event of such candidate having returned successfully". 12 CC.No.10975/22
And also held that "no action can be taken against the agent or a person authorized by him for such corrupt practice in terms of section 123 of the Representation of Peoples Act, 1951. For initiation of Criminal prosecution, the violation complained of should come within the ambit of Part- VII, Chapter-III of the Representation of Peoples Act, 1951".
20. As such, without any further discussion, it can be safely held that no offence is made out by the accused under section 123 of R.P. Act.
21. Now, coming to the legal aspect of offence under section 171(E) of IPC is concerned. Admittedly, the said offence is a non - cognizable offence. As such, it is the bounden duty of the Investigating Officer or the person who receives the complaint to follow the mandatory provisions of section 155 of Cr.P.C. When, the report is received by the S.H.O. of Police Station in respect of commission of non - cognizable offence, the S.H.O. has to follow the mandatory procedure prescribed under section 155(1) and section 155(2) of Cr.P.C. Therefore, 13 CC.No.10975/22 it is necessary to refer the said provision which is as hereunder:
"Section-155:- Information as to non - cognizable cases and investigation of such cases:
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non -
cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non - cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non - cognizable." 14 CC.No.10975/22
22. Therefore, when the S.H.O. of the Police Station receives a report regarding commission of non - cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under section 155(1) of Cr.P.C. Thereafter, the Jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of section 155(2) of Cr.P.C., stated supra. Unless, the Police Officer is permitted by an order of the Jurisdictional Magistrate to investigate the non - cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet. In the case on hand, the said procedure is not followed. As such, for lack of oral and documentary evidence and also for non - compliance of procedural aspects, the accused cannot be convicted for the alleged offence under section 171(E) of IPC and section 123 of R.P. Act. Based on the discussions made above, the Point No.1 is answered in the NEGATIVE.
23. Point No.2:- In view of my findings on the above Point No.1, the accused is entitled to be acquitted by giving benefit of 15 CC.No.10975/22 doubt and also for procedural lapses. Hence I proceed to pass the following:
ORDER Acting under section 255(1) of Cr.P.C., the accused is acquitted of the offences punishable under section 171(E) of IPC and section 123 of R.P. Act.
The bail bond and surety bond of the accused shall stand cancelled.
The properties reported in P.F.No.25/2018, i.e., Plastic Auto Toys which are released in favour of accused/applicant is made absolute after the appeal period.
(Typed by me directly on the computer, corrected and then pronounced by me in open court on this the 25th day of July - 2022).
(Preeth. J) XLII Addl. CMM., (Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 16 CC.No.10975/22 ANNEXURES Witnesses examined for the Prosecution:
PW.1 : Sreedhar S., PW.2 : Hemareddy, PW.3 : Srinivas G. Balareddy, PW.4 : Sachin Kumar, PW.5 : Vijayakumar, PW.6 : Siddharudha R., PW.7 : Subhashchandra, PW.8 : Manjanna T.
Documents exhibited for the Prosecution:
Ex.P.01 : Mahazar,
Ex.P.01(a) : Sig. of PW.1,
Ex.P.01(b) : Sig. of PW.2,
Ex.P.01(c) : Sig. of PW.4,
Ex.P.01(d) : Sig. of PW.7,
Ex.P.02 : Complaint,
Ex.P.02(a) : Sig. of PW.1,
Ex.P.02(b) : Sig. of PW.6,
Ex.P.02(c) : Sig. of PW.6,
Ex.P.03 : Photo,
Ex.P.04 : Photo,
Ex.P.05 : Order of Thahasildar,
Ex.P.06 : Order of D.C., & Press Note,
Ex.P.07 : Statement of PW.5,
Ex.P.08 : FIR,
Ex.P.08(a) : Sig. of PW.6,
Ex.P.09 : Permission Letter dated:24.04.2018,
Ex.P.09(a) : Sig. of PW.6,
Ex.P.10 : Tax Invoice dated:23.04.2018,
Ex.P.11 : Tax Invoice dated:20.04.2018,
Ex.P.12 : Copy of Customer,
Ex.P.13 : Copy of Customer.
17 CC.No.10975/22
Material object exhibited for the Prosecution: -
- NIL -
Witnesses examined for the defence Accused:
- NIL -
Documents exhibited for the defence Accused:-
- NIL -
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 18 CC.No.10975/22