Bangalore District Court
State By Brucepet Police Station vs Sanna Pakkirappa on 26 April, 2022
1 CC.No.2251/2022.
IN THE COURT OF XLII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated this the 26th day of April, 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.2251/2022.
(Old.CC.No.941/2018)
Complainant: State by Brucepet Police Station,
Bellary City, Bellary District.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: Sanna Pakkirappa,
S/o.Obalappa, 60 Years,
R/o.W.No.32, D.No.171/1,
Ordinence Road, Fort,
Bellary, Bellary District.
(By Sri.N.S.R., Advocate)
1. Date of commission of offence : 21.04.2018.
2. Date of report of offence : 23.04.2018.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 28.02.2022.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Nagaraj N.,
2 CC.No.2251/2022.
5. The date of recording of evidence : 30.09.2019.
6. The date of closing of evidence : 22.04.2022.
7. Offences complained of : U/s.171(H) of IPC
& S.36 of K.P Act.
8. Opinion of the Judge : Accused found not
Guilty
=============
JUDGMENT
1. That the Police Sub-Inspector of Brucepet Police Station, Bellary City, Bellary District has filed charge sheet against the accused for the offences punishable under section 171(H) of IPC and section 36 of K.P Act.
2. The case of the prosecution in brief is as follows:
On 21-04-2018 from 11.00 a.m., to 12.00 noon, the accused has conducted road show and rally in connection with filing nomination papers by the accused, from Bellary Town Royal Circle till the office of the Deputy Commissioner.
During the said rally, the accused violated the permission given by the Election Officer. The accused used 4 loudspeakers without obtaining any permission from the Police Department and has caused disturbance to the public.
The accused has made use of 11 vehicles though the 3 CC.No.2251/2022. permission was given only for two vehicles. Through, the permission was given to use only one flag in the rally, the accused used 26 flags in excess. Thus, the accused has violated the Election Model Code of conduct and thereby committed the offences punishable under section 171 (H) of IPC and section 36 of K.P Act.
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3. On the basis of the complaint of CW-1, case has been registered under Cr.No. 170/2018 against the accused for the offences punishable under section 171(H) of IPC and section 36 of K.P Act. Thereafter, on completion of the investigation charge sheet has been filed against the accused. On receipt of charge sheet, the court took cognizance of the said offences.
4. On appearance of the accused, he was enlarged on bail. The copies of the prosecution papers were furnished to the accused persons as contemplated under section 207 of Cr.P.C. Thereafter, heard before charge and framed charges 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.2251/2022.
5. In order to bring home the guilt of the accused persons, the prosecution has examined all the Seventeen witnesses as PW-01 to 17 and got marked 38 documents as Ex.P.01 to Ex.P.38. 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.
6. I have heard the arguments addressed by the learned Sr. Assistant Public Prosecutor and the learned counsel for the accused.
7. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 21-04-2018 from 11.00 a.m., to 12.00 noon, the accused has conducted road show and rally in connection with filing nomination papers by the accused, from Bellary Town Royal Circle till the office of the Deputy Commissioner, by the Election Model Code of conduct and thereby committed the offences punishable under section 171 (H) of IPC and section 36 of K.P Act
2. What Order?5 CC.No.2251/2022.
8. 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
9. Point No.1: To prove the allegations made by the prosecution that the accused has violated the Election Model Code of conduct, the complainant is examined as PW-1, who has deposed in the lines of the complaint lodged by him. He has deposed that the accused has not obtained any permission from the Police Department to make use of the loud speakers in the road show and rally, but, still he has used four loudspeakers. He has also deposed that the permission was given to the accused by the Election Officer to use only 2 vehicles, but the accused has used 11 vehicles and was also permitted to use only one flag, but the accused has used 26 flags. He has also deposed that the event of road show and rally is videographed. He has deposed that he lodged the complaint and also furnished the C.D and the photos along with his complaint. The complaint is marked as Ex.P.1. The appointment order is marked as Ex.P.2, the permission 6 CC.No.2251/2022. granted by the Election Officer to conduct the road show and rally is marked as Ex.P.3, the reply given by the Dy.S.P is marked as Ex.P.4. He has also deposed that he has drawn a mahazar and sketch at the spot and the same are marked as Ex.P.5 and 6. The photos and the Video C.D is marked as Ex.P.8 to 26 subject to objection made by the counsel for the accused.
10. In the cross - examination, he has admitted that from Royal Circle till the Office of the Dy. Commissioner, the area will be crowded by people and also the traffic congestion will be in rise in that area. He has also admitted that when any rally is conducted in that area there is possibility of other vehicles belonging to the general public joining the rally. He has also admitted that there is possibility of using the party flag by the people who are not concerned with the candidate and the party. He has also admitted that it is not possible for the candidate or for the party people to stop such persons from using the party flag. He has deposed that there is no documents to show that the accused has used 4 loud speakers on that day. When, it was questioned to the witness, 7 CC.No.2251/2022. if he has any documents to show that the accused has used 11 vehicles in the rally, he has deposed that because the party flag is tied to the vehicles, they have presumed that those vehicles were also used from the purpose of road show and rally.
11. From the evidence of PW-1, it goes to show that there is no concrete proof that the accused himself has used 11 vehicles in the rally and also to show that the more flags are used by the accused himself in the road show and rally. No doubt, the photos produced by the prosecution which are marked as Ex.P.08 to 25 reveals that many vehicles are used in the rally and many flags are also tied to those vehicles and it also goes to show that some loudspeakers are tied to some of the vehicles. Admittedly, those photos are marked subject to objection. Further, more in none of the photos, the accused is seen. Normally when a candidate is conducting any rally or road show the party followers will also accompany him and some of the well wishers will also join the rally even without any invite. This is also brought out from the evidence of PW-1 in his cross- examination part.
8 CC.No.2251/2022.
12. The spot mahazar witnesses are examined as PW-2 and 3. Amongst them PW-2 has deposed that he has signed the mahazar and also about the case for conducting the said mahazar which is marked as Ex.P.5. He has deposed that he has signed the mahazar in the police station. PW-3 has deposed that he had been to the scene of occurrence and there the mahazar was conducted and photos were also taken and he signed the mahazar at the spot itself. He has deposed that even CW2/PW2 was present at the spot during the mahazar.
13. The I.O is said to have seized three vehicles used in the rally and has drawn mszhazar in that respect. The witnesses to the said mahazar is examined as PW-4 and 5. They have deposed that they were made to sign on some documents by the Brucepet Police in the Police Station. But, they do not know the contents of the said documents. They have deposed that the police have not seized any vehicles in their presence. The seizure mahazars are marked as Ex.P.27 to 29. At the request of learned Sr. Assistant Public Prosecutor, both the witnesses are treated as hostile and 9 CC.No.2251/2022. permission was accorded to cross-examine them, but nothing worthy has been elicited from their mouth to prove the case of the prosecution in respect of the alleged seizure of the vehicles. Both have denied all the suggestions put to them by Lrd. Sr. APP.
14. The person who is said to have fixed loudspeakers to the vehicle and gave the vehicle on rent to fix the loudspeakers is examined as PW-6. He has deposed that he is the owner of Aruna Sound Systems. He has not given any statement before the police. At the request of learned Sr. Assistant Public Prosecutor, he is treated as hostile and permission was accorded to cross-examine him, but nothing worthy has been elicited from his mouth to prove the case of the prosecution in respect of the said aspect.
15. The independent eye-witnesses are cited as CW-8 to CW-12. They are examined as PW-7 to PW-10 and PW-13. In their evidence, they have deposed that they do not know anything about the alleged incident. They have deposed that they have not given any statement before the police. At the request of learned Sr. Assistant Public Prosecutor, they are 10 CC.No.2251/2022. treated as hostile and permission was accorded to cross- examine them, but nothing worthy has been elicited from their mouth to prove the case of the prosecution in respect of the alleged incident. Their statements are marked as Ex.P.31 to Ex.P34 and Ex.P.36.
16. The photographer is examined as PW-12, wherein, he has deposed that he do not know any persons by name Raghu. He has deposed that he has not video graphed any programme in connection with any elections. He has deposed that he know the accused as he is a politician. At the request of learned Sr. Assistant Public Prosecutor, he is treated as hostile and permission was accorded to cross-examine him, but nothing worthy has been elicited from his mouth to prove the case of the prosecution in respect of the said aspect.
17. The Police Officer who accompanied CW-1 in the FST Team is examined as PW-11. He has deposed in the lines of the evidence given by PW-1 in respect of the violations of Election Code of Conduct made by the accused. The Police Officer who has given a report to the I.O stating 11 CC.No.2251/2022. that the accused has not obtained any permission from the Police Department to use loudspeakers in the rally is examined as PW-16. The Police Officer who registered the case based on the complaint lodged by CW-1 is examined as PW-17. He has also conducted part of the investigation. And the other I.Os are examined as PW-14 and PW-15. All of them deposed in the lines of their role in this case.
18. Now, on analyzing the overall evidence of the prosecution, it goes to show that the complainant has lodged the complaint only based on surmises. PW-1 himself has deposed that since the party flags were tied to the vehicles plying on that road he though that the said vehicles were used for the rally and roadshow. Moreover, the seizure mahazar is in respect of only three vehicles. If really the accused has used 11 vehicles in the rally, then what prevented the I.O or CW-1 to seize all those vehicles. Admittedly, the alleged flags and loudspeakers are also not seized by the concerned. From the evidence of the witnesses, it goes to show that the road were the alleged rally took place is always a busy road with traffic congestions and 12 CC.No.2251/2022. also is crowded. If the public who is supporting the BJP Party and if they have also voluntarily joined the rally the same cannot be prevented by the accused. Moreover, there is no independent eye-witness to the alleged incident.
19. The C.D produced is marked as Ex.P.26 subject to objection. Admittedly, there is no certificate under section 65(B) of the Evidence Act to the said C.D. At this juncture, it is very significant to note that section 65(A) of Indian Evidence Act, has been amended in the Year - 2000 and this crime is of the Year - 2018. As per the provision of section 65-B of Indian Evidence Act, if any electronic record is produced to prove the fact in issue and if the said electronic record has fulfilled the conditions as enumerated in the said provision, the said electronic record is admissible in evidence without further proof or production of original as evidence of any contents of the original or the facts stated in the electronic record is a direct evidence and it would be admissible. Inspite of that for the reasons best known to the I.O, he has not collected the certificate under section 65(B) of Evidence Act, before producing the C.D which is said to 13 CC.No.2251/2022. contain the commission of the offences by the accused. Hence, as discussed above, C.D is inadmissible evidence and it cannot be looked into for any purpose.
20. The very incident alleged by the prosecution has become doubtful. Without there being any cogent or probable evidence, it is not safe to rely only upon the evidence of the complainant and the I.Os'. The accused cannot be convicted for the alleged offences based on their oral evidence only.
21. Now, coming to the legal aspects in respect of the offence under section 171(H) of IPC and Section 36 of K.P Act is concerned. Admittedly, the said offences are non - cognizable offences. 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 155(2) of Cr.P.C. Therefore, it is necessary to refer the said provision which is as hereunder:
"Section-155:- Information as to non -14 CC.No.2251/2022.
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 15 CC.No.2251/2022. are non - cognizable."
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 offences under section 171(H) of IPC and section 36 of K.P.Act.
23.Coming to the offence alleged against the petitioner 16 CC.No.2251/2022. is concerned, he is sought to be prosecuted under Section 171 H of IPC. The Section reads as under:
"Section 171 H: Illegal payments in connection with an election: -
Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
24.The facts narrated in the complaint do not attract the ingredients of the aforesaid Section. As per the said section, 17 CC.No.2251/2022. only the person who has been dealing with the election materials or the advertisement is liable for prosecution. The candidate himself unless he is dealing with said material cannot be prosecuted under section 171(H) of IPC. There are no such allegations. As a result, there is no basis for the prosecution of the petitioner. There is also no material to show the involvement of the petitioner in the alleged offence.
25. The charge sheet is also filed under section 36 of K.P Act which reads as under:-
"36. Power to prohibit, etc., continuance of music, sound or noise.-
(1) If the Commissioner, the Superintendent, Assistant Superintendent or Deputy Superintendent or any magistrate of the first class having jurisdiction in any area to which the Government has, by notification in the official Gazette extended the provisions of this section, is satisfied from the report of an officer in charge of a police station or other information received by him that it is necessary to do so in order to prevent annoyance, disturbance, discomfort or injury or risk to the public or to any 18 CC.No.2251/2022. persons who dwell or occupy property in the vicinity, he may by a written order issue such directions as he may consider necessary to any person for preventing, prohibiting controlling or regulating,-
(a) the incidence or continuance in or upon any premises of,
(i) any vocal or instrumental music,
(ii) sounds caused by the playing, beating, clashing, blowing or use in any manner whatsoever of any instrument, appliance or apparatus or contrivance which is capable of producing or reproducing sound, or
(b) the carrying on, in or upon, any premises of any trade, avocation or operation resulting in or attended with noise.
(2) The authority empowered under sub-section (1) may, either on its own motion or on the application of any person aggrieved by an order made under sub-
section (1), either rescind, modify or alter any such order:
Provided that before any such application is disposed of, the said authority shall afford the applicant an opportunity of 19 CC.No.2251/2022. appearing before it either in person or by legal practitioner and showing cause against the order and shall, if it rejects any such application either wholly or in part record its reasons for such rejection.
26. The punishment prescribed for the contravention of the above referred section is under section 109 of K.P Act which reads as under:-
"109. Penalty for contravening orders under section 361[,36A]1 or 37.- Whoever contravenes or disobeys any order or direction made under section 36 1[,36A]1 or section 37 or any conditions of a licence granted thereunder or abets the contravention or disobedience thereof shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both."
27. So from the plain reading of section 36 and section 109 of the K.P Act, it goes to show that if an order is issued under section 36 of the Act and if the said order is contravened then such person is liable to be punished under 20 CC.No.2251/2022. section 109 of the said Act. Now, when the prosecution is not able to prove the very commission of the offence by the accused, punishing the accused for the alleged offence under section 36 of the K.P Act does not arise at all. Further, when the prosecution is not able to show to the court that the accused has made use of the loudspeakers and also the evidence of PW-6 who is said to be the person who gave the loudspeakers on rent along with a Etcher company vehicle for the rally, is that he do not know anything about this case, there is no question of violation of the condition in the licence.
28. Even, by cursory reference, the said section is not applicable to the facts of the case. The allegations in the charge sheet is that the accused conducted road show rally in violation of the permission granted to him, by using 26 flags instead of one flag and using 11 vehicles instead of 2 vehicles and using of loudspeakers without obtaining permission from the Police Department. The said fact, even if, accepted in its entirety would not make any offence either under section 171(H) of IPC or under section 36 of the Karnataka Police Act. As such, based on the discussions 21 CC.No.2251/2022. made above, Point No.1 is answered in the NEGATIVE.
29.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 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 for the offences punishable under section 171(H) of IPC and section 36 of K.P. Act.
The bail bond and surety bond of the accused shall stand cancelled.
(Typed by me directly on the computer, corrected and then pronounced th by me in open court on this the 26 day April - 2022).
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 22 CC.No.2251/2022. ANNEXURES Witnesses examined for the Prosecution:
PW.01 : Nagaraj, PW.02 : Hundekar, PW.03 : Shanthakumar, PW.04 : Bojja Naik, PW.05 : Arief, PW.06 : Gurunath Bhatt, PW.07 : Vannurswamy, PW.08 : Parameshwara, PW.09 : Yamunappa, PW.10 : Anwar Basha, PW.11 : Shivashankara Gouda, PW.12 : Naveen, PW.13 : Dastagiri, PW.14 : K.Hosakerappa, PW.15 : Lokaraj, PW.16 : Malleshappa Mallapur. PW.17 : Lokeshawarappa.
Documents exhibited for the Prosecution:
Ex.P.01 : Complaint,
Ex.P.01(a) : Sig. of PW.01,
Ex.P.01(b) : Sig. of PW.17,
Ex.P.02 : Appointment order,
Ex.P.03 : Permission Letter
dated:20.04.2018,
Ex.P.04 : Reply dated:21.04.2018,
Ex.P.05 : Mahazar,
Ex.P.05(a) : Sig. of PW.01,
Ex.P.05(b) : Sig. of PW.02,
Ex.P.05(c) : Sig. of PW.03,
Ex.P.05(d) : Sig. of PW.17,
Ex.P.06 : Sketch,
Ex.P.06(a) : Sig. of PW.01,
Ex.P.06(b) : Sig. of PW.17,
Ex.P.07 : Photo,
Ex.P.08 to 25 - Eighteen Photos,
23 CC.No.2251/2022.
Ex.P.26 :C.D.,
Ex.P.27 :Seizure mahazar of vehicle,
Ex.P.27(a) :Sig. of PW.04,
Ex.P.27(b) :Sig. of PW.05,
Ex.P.27(c) :Sig. of PW.15,
Ex.P.28 :Seizure mahazar of vehicle,
Ex.P.28(a) :Sig. of PW.04,
Ex.P.28(b) :Sig. of PW.05,
Ex.P.28(c) :Sig. of PW.15,
Ex.P.29 :Seizure mahazar of vehicle,
Ex.P.29(a) :Sig. of PW.04,
Ex.P.29(b) :Sig. of PW.05,
Ex.P.29(c) :Sig. of PW.15,
Ex.P.30 :Statement of P.W.06,
Ex.P.31 :Statement of P.W.07,
Ex.P.32 :Statement of P.W.08,
Ex.P.33 :Statement of P.W.09,
Ex.P.34 :Statement of P.W.10,
Ex.P.35 :Statement of P.W.12,
Ex.P.36 :Statement of P.W.13,
Ex.P.37 :Permission Letter
dated:21.04.2018,
Ex.P.37(a) : Sig. of PW.17,
Ex.P.38 : FIR,
Ex.P.38(a) : Sig. of PW.17.
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 against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 24 CC.No.2251/2022. 25 CC.No.2251/2022.