Karnataka High Court
Sri Basavanagouda R Patil Yatnal vs State Of Karnataka on 12 December, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:51256
CRL.P No. 11842 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11842 OF 2024
BETWEEN:
SRI BASAVANAGOUDA R PATIL (YATNAL)
S/O RAMANAGOUDA B PATIL
AGED ABOUT 61 YEARS,
OCC: MLA, VIJAYAPURA CONSTITUENCY,
R/AT OLD IB, STATION ROAD,
VIJAYAPURA - 586 101, KARNATAKA.
ALSO AT
SINDAGI ROAD, MAHAL AINAPUR,
AINAPURA, BIJAPURA, KARNATAKA - 586 104.
...PETITIONER
(BY SRI. DALWAI VENKATESH.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed
by SUMA B N BY ROZA POLICE STATION,
Location: High KALBURGI - 584102,
Court of REPRESENTED BY STATE PUBLIC PROSECUTOR,
Karnataka HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
2. SRI. SOMASHEKARA BIRADAR
S/O NOT KNOWN, AGE 49 YEARS,
OCC: GOVT OFFICIAL FST OFFICER,
TEAM 1, LOKASABHA ELECTION,
KALABURAGI - 584 102.
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA ADDL. SPP FOR R1;
SRI. SHARATH DODAWAD, ADVOCATE FOR R2)
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NC: 2024:KHC:51256
CRL.P No. 11842 of 2024
THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE
FIR IN CR.NO.25/2024 REGISTERED BY THE ROZA P.S.,
KALABURAGI, PENDING PRL. CIVIL JUDGE (JR.DN) AND JMFC
COURT, GULBARGA, FOR THE OFFENCES P/U/S 505(2) OF IPC,
PRODUCED AT DOCUMENT NO.1.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Heard Sri. Dalwai Venkatesh, learned counsel appearing for the petitioner and Sri. B.N. Jagadeesha, learned Addl. SPP for the respondent No.1 and Sri. Sharath Dodawad, learned counsel appearing for the respondent No.2.
2. The petitioner is before this Court calling in question the registration of a crime in Crime No.25/2024 registered for the offence punishable under Section 505(2) of Indian Penal Code, 1860.
3. The petitioner is a member of the Legislative Assembly. During the Parliamentary Elections 2024, it is said that the petitioner on 21.04.2024 has uttered certain -3- NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 words which has become the ingredients of Section 505(2) of IPC, 1860 and therefore the flying squad/the respondent No.2 herein registers a complaint against the petitioner. The complaint then becomes a crime in Crime No.25/2024 for the aforesaid offence. On registration of the crime the petitioner is before this Court in the subject petition.
4. Learned counsel for the petitioner submits that a perusal of the complaint would not indicate an iota of ingredients of sub-section (2) of Section 505 of the IPC, 1860. Learned counsel for the petitioner would submit that the issue in the lis stands answered by the Apex Court in the case of BILAL AHMED KALOO VS. STATE OF ANDRA PRADESH1 , which is subsequently followed by the Apex Court in the case of MANZAR SAYEED KHAN VS. STATE OF MAHARASHTRA AND ANOTHER2.
1(1997) 7 SCC 431 2 (2007) 5 SCC 1 -4- NC: 2024:KHC:51256 CRL.P No. 11842 of 2024
5. The learned Addl. SPP though would refuse the submission to contend that these statements would not made during elections and therefore the matter would require investigation in the lis.
6. Learned counsel Sri. Sharath Dodawad, representing the respondent No.2/complainant would also toe the lines of the learned Addl. SPP in seeking the dismissal of the complaint for the purpose of continuation of the investigation.
7. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.
8. The factum of the statement being made during the Parliamentary Elections on 21.04.2024 is a matter of record. The entire issue has now sprung from the complaint and therefore, I deem it appropriate to notice the complaint.
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9. The complaint dated 24.04.2024 reads as follows;
ಇವ ೆ,
ಆರ ಕ ೕ ಕರು.
ೋ ಾ ೕ ೕ ಾ ೆ,
ಕಲಬುರ ನಗರ.
ಾನ ೇ,
ಷಯ: #ೋಕಸ%ಾ &ಾವ'()ಕ ಚು+ಾವ ೆ-2024 ರ ಸಂಬಂಧ .+ಾಂಕ:21.04.2024 ರಂದು ಕಲಬುರ ನಗರದ ಗಂಜ 1ಾ#ೋ ಯ ಈಶ4ರ 5ೆಂಪ7 ಹ(9ರ %ಾರ(ೕಯ ಜನ:ಾ ;ಾ<'ಯ ವ(=ಂದ ಹ>?1ೊಂ@ರುವ ಬAರಂಗ ಚು+ಾವ ೆ ಪ)Bಾರ ಸ%ೆಯ C DಾEಾತ?ಕ GೇH1ೆ ೕ@ರುವ ಕು ತು.
ಉ#ೆCೕಖ:1) ಸGಾಯಕ ಚು+ಾವ ಾM1ಾ ಗಳ 1ಾOಾ'ಲಯ, 5- #ೋಕಸ%ಾ Pೇತ), Gಾಗೂ ಆಯುಕ9ರು ಮGಾನಗರ ;ಾ 1ೆ ಕಲಬುರ ರವರ ಪತ) ಸಂRೆ :ಕಮ;ಾ/ಚು+ಾವ ೆ/5- #ೋಕಸ%ಾ/45-ಗುಲS ಾ' ಉತ9ರ/2024- 25/02 20:
24.04.2024
2)ಸGಾಯಕ ಚು+ಾವ ಾM1ಾ ಗಳ 1ಾOಾ'ಲಯ, 5-#ೋಕಸ%ಾ Pೇತ), (45-ಗುಲS ಾ' ಉತ9ರ) ಕಲಬುರ ರವರ ಪತ) ಸಂRೆ :ಕಮ;ಾ/ಚು1ಾ/#ೋಸ/ಏಕಗDಾU/18/2024-
25,.+ಾಂಕ:21.04.2024 Vೕ ನ ಷಯ Gಾಗೂ ಉ#ೆCೕಖಗH ೆ ಸಂಬಂMWದಂ:ೆ #ೋಕಸ%ಾ &ಾವ'()ಕ ಚು+ಾವ ೆ-2024 ರ ಬAರಂಗ ಚು+ಾವ ೆ ಪ)Bಾರ ಸ%ೆಯ C ಾದ ೕ( ಸಂA:ೆಯನುX ಉಲCಂYWರುವ ಬ ೆZ ಾಧ ಮದ C ಪ)ಕಟDಾ ರುವ ಸು.\ಯ AನX#ೆಯ C .+ಾಂಕಃ 21.04.2024 ರಂದು ^ೆH ೆZ 09.30 ಗಂ5ೆ ೆ ಕಲಬುರ ನಗರದ ಗಂಜ 1ಾ#ೋ ಯ ಈಶ4ರ 5ೆಂಪ7 ಹ(9ರ %ಾರ(ೕಯ ಜನ:ಾ ಪ ದ ವ(=ಂದ ಹ>?1ೊಂ@ರುವ ಬAರಂಗ ಚು+ಾವ ೆ ಪ)Bಾರ ಸ%ೆಯ C ಸ+ಾ?ನ _)ೕ -6- NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 ಬಸ` ೌb ;ಾ<ೕ7 ಯ:ಾXc, dಾಸಕರು ಜಯಪeರ ಇವರು ಸ%ೆಯ C ಾತ+ಾಡುತ9 " ಮ? 1ಾ#ೋ gಳ ೆ ಅವರು Oಾ ೋ ಬರು:ಾ9ರ#ಾC ಅವರು ಬಂದ ೆ ಅವರ Vೕ#ೆ ಕಲCನುX ಒ ೆ= ' ಎಂದು GೇH DಾEಾತ?ಕ GೇH1ೆ ೕ@ರು:ಾ9 ೆ.
ಸದ ಬAರಂಗ ಚು+ಾವ ೆಯ ಪ)Bಾರ ಸ%ೆ ೆ ಸಂಬಂMWರುವಂ:ೆ VST ತಂಡದವರು k()ಕ Wರುವ ೕ@ೕgೕವನುX VWT ತಂಡದವರು ಪ _ೕ W ೕ@ರುವ ೕ@ೕgೕ CD ಯನುX ಈ ಪತ)Eೊಂ. ೆ ಲಗ(9ಸು:ಾ9 ಸದ DಾEಾತ?ಕ GೇH1ೆ ಕು ತು ಪ)ಕರಣ Eಾಖ W1ೊಳmಲು ತಮ? C ಈ ಮೂಲಕ 1ೋರ#ಾ Eೆ.
ವಂದ+ೆಗnೆo ಂ. ೆ, ತಮ? dಾ4W &ೋಮdೇಖರ p ಾದರ FST ಅM1ಾ ಗಳq, ತಂಡ-01 #ೋಕಸ%ಾ &ಾವ'()ಕ ಚು+ಾವ ೆ-2024 ಕಲಬುರ
10. A perusal of the complaint the point that arise for consideration is whether the complaint would meet the ingredients of Section 505(2) of the IPC, 1860?.
11. Section 505(2) of the Indian Penal Code, 1860 reads as follows;
"505. Statements conducing to public mischief.
(1) xxx (2) Statements creating or promoting enmity, hatred or ill-will between classes.-- Whoever makes, publishes or circulates any statement or report -7- NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-
will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both."
12. The purport and the necessary ingredients of Section 505(2) of IPC, 1860 need not detain this Court for long or delve deep into the matter.
13. The Apex Court in the case of BILAL AHMED KALOO (supra) has held as follows;
"6. The decisive ingredient for establishing the offence of Sedition under Section 124-A IPC is the doing of certain acts which would bring the Government established by law in Indian into hatred or contempt etc. In this case, there is not even a suggestion that appellant did anything as against the Government of India or any other Government of the State. The charger framed against the appellant contains no averment that appellant did anything as against the Government.
7. A Constitution Bench of this Court has stated the law in Kedar Nath Singh vs. State of Bihar(AIR at p.
967) as under:
"Now the expression 'the Government established by law' has to be distinguished by law' has to be distinguished from the persons for the time being engaged in carrying on the administration. 'Government established by law' is the visible symbol of the State. The very -8- NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sediction' as the offence in S.124A has been characterised, comes, under Chapter VI relating to offences against the State. Hence any acts within the meaning of S.124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence."
8. As the charge framed against the appellant is totally bereft of the crucial allegation that appellant did anything with reference to the Government it is not possible to sustain the conviction of the appellant under Section 124A IPC.
9. Evidence of the prosecution relating to offences under Section 153A and 505(2) IPC consists of oral testimony of certain witnesses who claimed that appellant was telling others that the Army personnel have been committing atrocities on Muslims in Kashmir. Among those witnesses PW- 7, PW-12 and PW-13 were not cross-examined at all. Accepting their evidence, it can be held without any difficulty that prosecution has established beyond doubt that appellant was spreading the news that members of the Indian Army were indulging in commission of atrocities against Kashmiri Muslims. So it is not necessary to advert to the other evidence which only repeats what those witnesses said. Hence the question to be decided now is whether those acts of the appellant would attract the penal consequences envisaged in Section 153A or 505(2) of IPC.
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10. Section 153A was amended by the Criminal and Election Laws (Amendment) Act 1969 - Act No.XXXV of 1996. It consists of three clauses of which clauses
(a) and (b) alone are material now. By the same amending Act sub-section (2) was added to Section 505 of the Indian Penal Code. Clauses (a) & (b) of Section 153A and Section 505(2) are extracted below:
"153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.- (1) Whoever-
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or ......................
(c) * * *
shall be punished with
imprisonment which may extend to three years, or with fine, or with both."
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 "505(2) Statements creating or promoting enmity, hatred or ill- will between classes.- Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both."
The common ingredient in both the offences is promoting feeling of enmity, hatred or ill-will between different religious or racial or linguistic or regional groups or castes or communities. Section 153A covers a case where a person by "words, either spoken or written, or by signs or by visible representations" promotes or attempts to promote such feeling. Under Section 505(2), promotion of such feeling should have been done by making and publishing or circulating any statement or report containing rumour or alarming news.
11. This Court has held in Balwant Singh and another vs. State of Punjab (1995) 3 SCC 214) that mens rea is a necessary ingredient for the offence under Section 153A. Mens rea is an equally necessary postulate for the offence under Section 505(2) also as could be discerned from the words "with intent to create or promote or which is likely to create or promote" as used in that sub-section.
12. The main distinction between the two offences is that publication of the word or representation is not necessary under the former, such publication is sine
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 qua non under Section 505. The words "whoever makes, publishes or circulates" used in the setting of Section 505(2) cannot be interpreted disjunctively but only as supplementary to each other. If it is construed disjunctively, any one who makes a statement falling within the meaning of Section 505 would, without publication or circulation, be liable to conviction. But the same is the effect with Section 153A also and then that Section would have been bad for redundancy. The intention of the legislature in providing two different sections on the same subject would have been to cover two different fields of similar colour. The fact that both sections were included as a package in the same amending enactment lends further support to the said construction.
13. Yet another support to the above interpretation can be gathered from almost similar words used in Section 499 of the Penal Code as "whoever by words.........makes or publishes any imputation......."
14. In Sunilakhya Chowdhury vs. H.M. Jadwet and another (AIR 1968 Calcutta 266) it has been held that the words "makes or publishes any imputation"
should be interpreted as words supplementing each other. A maker of imputation without publication is not liable to be punished under that section. We are of the view that the same interpretation is warranted in respect of the words "makes, publishes or circulates" in Section 505 IPC also.
15. The common feature in both sections being promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or language or regional groups or castes and communities it is necessary that atleast two such groups or communities should be involved. Merely inciting the felling of one community or group without any reference to any other community or group cannot attract either of the two sections.
16. The result of the said discussion is that appellant who has not done anything as against any religious, racial or linguistic or regional group or community
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 cannot be held guilty of either the offence under Section 153A or under Section 505(2) of IPC.
17. What remains is the offence under Section 25(1B) of the Indian Arms Act. PW-1 was the Superintendent of Police of Hyderabad City Zone (CID) during the relevant time. He deposed to the fact that he kept close watch on certain organizations in the wake of series of bomb blasts which rocked that city for a while and on receipt of some vital information about the activities of the appellant he proceeded to the place where he was staying, accompanied by two Revenue officials(PW-22 and PW-23). He found out appellant in Room No.2 of the building annexed to Masjid-e- Niyameth Kha-e-Ali at Mir-ka-Daira at Haribowli. PW-1 said that on being interrogated appellant produced one revolver (MO1) and two cartridges (MO2 & MO3). Those articles were seized and later they were subjected to tests in the Forensic Science Laboratory. PW-16, the Assistant Director of that Laboratory has stated in court that the said revolver and cartridges were found to be in perfect working condition and he issued a certificate to that effect.
18. PW-14 who was incharge of management of the rooms in the building attached to the aforesaid mosque said that appellant was staying in Room No. 2 of the building during the relevant time. The trial court found that evidence acceptable and we have no reason to dissent from it.
19. Learned counsel for the appellant, however, assailed the prosecution case relating to the said revolver and cartridges, on the ground that those articles were not sealed after seizure and were left at the Police Station for a number of days before they were sent to the Forensic Science Laboratory.
20. We are not impressed by the said contention and we may point out that appellant made no allegation at any stage of the case that the revolver and the cartridges were tampered with by the police. Not even a suggestion was made to any witness in that direction. According to the counsel, since those articles were not sealed there was the possibility of
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 their being tampered with. Such and academic possibility need not be consonance by us in this case because even the accused has no case that they were tampered with. That apart, the particulars of the weapon were given in the seizure memo and the same tallied with the weapon on examination by the ballistic expert. There is no challenge to the seizure memo admittedly prepared at the time of recovery of arms and ammunition. The identity of the weapon thus stands, established beyond any reasonable doubt.
21. The Assistant Director of Forensic Science Laboratory conducted scientific test on the articles and found them to be in working condition.
22. We are, therefore, in agreement with the finding recorded by the trial court that appellant was in possession of arms and ammunition in violation of law and he is thus liable to be convicted under Section 25(1B)(a) of the Arms Act. The sentence awarded by the trial court (rigorous imprisonment for three years) in the circumstances of the case needs no interference.
23. In the result, we partly allow this appeal and set aside the conviction and sentence passed on the appellant for offences under Section 124A, 153A and 505(2) of the Indian Penal Code. We confirm the conviction and sentence passed on him under Section 25(1B)(a) of the Arms Act. The appellant shall be released from custody fothwith if he has undergone the sentence passed on him under section 25 (1B)(a) of the Arms Act and is not wanted in any other case".
which is subsequently followed by the Apex Court in the case of MANZAR SAYEED KHAN (supra) wherein the Apex Court has held as under;
"15. We have given our thoughtful consideration to the respective contentions of the
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 learned counsel for the parties. The question to be decided now is whether the paragraph complained of would attract the penal consequences envisaged in Section 153A of IPC. Section 153A of IPC was amended by the Criminal Law (Amendment) Act, 1969 (Act 35 of 1969). It consists of three clauses of which clauses (a) and (b) alone are material for the case on hand, which read as under:
"153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. (1) Whoever-
(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or (C) * * * shall be punished with imprisonment which may extend to three years, or with fine, or with both".
14. If the complaint so registered against the petitioner is considered on the touchstone of the law as
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NC: 2024:KHC:51256 CRL.P No. 11842 of 2024 elucidated by the Apex Court in the afore-quoted judgments, the unmistakable inference that would be drawn is that the impugned crime registered against the petitioner does not meet an iota of ingredients for Section 505(2) of the IPC, 1860.
15. For the aforestated reasons, the following;
ORDER
i) The petition is allowed.
ii) The FIR in Crime No.25/2024 registered
by Roza Police Station, Kalaburagi District pending on the file of Prl. Civil Judge (Jr.Dn) &JMFC Court, Gulbarga, for the offence punishable under Section 505(2) of IPC, qua the petitioner, stands quashed.
SD/-
(M.NAGAPRASANNA) JUDGE RU, List No.: 1 Sl No.: 41