Karnataka High Court
Shri.Shrimant S/O Balasaheb Patil vs The State Of Karnataka on 1 October, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .101799 OF 2018
BETWEEN:
SHRI.SHRIMANT S/O BALASAHEB PATIL
AGE: 63 YEARS,
OCC: MLA OF KAGWAD ASSEMBLY CONSTITUENCY
AND CHAIRMAN AND MANAGING
DIRECTOR OF M/S. ATHANI SUGARS LTD.,
R/O: VISHNU ANNA NAGAR,
NAVALIHAL VILLAGE,
TQ: ATHANI, (NOW KAGWAD),
DIST: BELAGAVI,
PIN CODE: 591304.
... PETITIONER
(BY SRI.JAYAKUMAR S.PATIL, SENIOR ADV. FOR
SRI.SANJAY S KATAGERI, ADV.)
AND
1. THE STATE OF KARNATAKA
THROUGH ATHANI POLICE STATION
(ATHANI CIRCLE)
REPRESENTED BY
ADDL. S.P.P.
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD-580011.
:2: Crl. P.No.101799/2018
2. SHRI.DEVANAND S/O GURAPPA MANE
AGED ABOUT: 52 YEARS,
OCC: ASSISTANT DIRECTOR OF AGRICULTURE,
CHIKKODI,
THEN AS FLYING SQUAD OFFICER FOR KAGWAD
ASSEMBLY CONSTITUENCY,
KAGWAD,
NOW TALUKA KAGWAD,
DIST: BELAGAVI.
NOW R/O: NO.38,
OFFICE OF ASSISTANT DIRECTOR OF
AGRICULTURE, APMC, CHIKKODI,
AT: CHIKKODI,
DIST: BELAGAVI,
PIN CODE: 591201,
MOB.NO.8277930172,
NO.9449734347.
... RESPONDENTS
(BY SRI. PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE CRIMINAL
PROCEEDINGS IN CRIMINAL CASE NO.1796/2018 PENDING
ON THE FILE OF LEARNED PRL. CIVIL JUDGE AND JMFC,
ATHANI, ARISING OUT OF ATHANI P.S. CRIME
NO.264/2018, FOR THE OFFENCE PUNISHABLE U/S 171-H
OF IPC AS AGAINST THE PETITIONER HEREIN, WHO IS
ARRAYED AS ACCUSED NO.1 FOR THE ABOVE SAID
OFFENCE BY ALLOWING THIS CRIMINAL PETITION.
This Petition coming on for Admission, this day the
Court made the following:
:3: Crl. P.No.101799/2018
ORDER
The petitioner is accused No.1 in CC No.1796/2018 pending on the file of the Princip al Civil Judge and JMFC, Athani. The p etitioner and the second accused Dondiram Pandurang Avalekar are charg e sheeted in the said case for the offence punishab le under Section 171H of IPC on the b asis of the comp laint filed by CW.1-Devand and Gurap pa Mane in Crime No.264/2018 of their police station.
2. CW-1 was the member of election plying squad for Kagwad-04 assembly constituency for the election that was scheduled to b e held in May 2018. The petitioner contested the said election as the cand id ate from Indian National Congress Party.
3. On 1/5/2018, CW.1-Devanand Gurapp a Mane filed complaint before the S.H.O. of Athani police station alleging that on 1/5/2018 at 11.30 a.m., though the code of conduct was in force, petitioner No.1 with accused No.2 without :4: Crl. P.No.101799/2018 permission of the concerned Election Officer conducted meeting of the cong ress party volunteers near Laxmi Temple of Arlihatti villag e for the purpose of canvassing and thereb y violated the code of conduct.
4. On the basis of such comp laint, on 1/5/2018 the S.H.O. of Athani police station submitted a requisition to the Princip al Civil Jud ge and JMFC, Athani stating that the offence under Section 171H of IPC is non cog nizab le offence and thus sought permission to conduct investig ation into that.
5. The learned Mag istrate on the said requisition g ranted p ermission endorsing on the same requisition as follows:-
"Perused the requisition. Sufficient materials are found and prima facie to register the complaint.
Permitted .
Sd/-
1/5/2018":5: Crl. P.No.101799/2018
6. On the basis of such order, Athani police registered FIR in Crime No.264/2018 against the petitioner and the second accused for the offence punishab le under Section 171H of IPC. They conducted the investig ation and laid the charg e sheet ag ainst the p etitioner and the second accused on 26/5/2018 for the offence punishab le under Section 171H of IPC.
7. On receip t of the charg e sheet, the Magistrate on 3/8/2018 passed the following ord er:-
"Acting und er Section 190(1) of Cr.P.C. cognizance is taken ag ainst the accused for the offences punishable und er Section 171H IPC.
Register the case as criminal Case in register No.III.
Sd/-"
8. Further on 11/9/2018, the Mag istrate passed the order issuing the process as follows:-
"Issue s/s to A1 and A2 returnab le b y 4/12" :6: Crl. P.No.101799/2018
9. Sri Jayakumar S.Patil, learned Senior counsel appearing for the learned advocate on record seeks to quash the impugned proceedings on the following grounds:-
i) The offence und er Section 171H of IPC, being non cognizab le offence has to b e registered and investig ation has to be conducted as per Section 155 of Cr.P.C.
ii) Under Section 155(1) of Cr.P.C. what is to be referred to the Mag istrate is the informant and not the information.
The Mag istrate committed an error in permitting the investigation on the reference of the information instead of informant.
iii) To constitute an offence under Section 171H of IPC, there must be incurring of the expenses to hold the public meeting by a person without the authority of the contesting candid ate in :7: Crl. P.No.101799/2018 the election. In this case, the petitioner himself was a candidate in the election. Therefore, the complaint itself does not make out commission of offence under Section 171H of the IPC. Consequently, taking of cognizance is without application of mind and the proceedings are abuse of process of Court.
10. Sri Praveen K.Uppar, learned HCGP fairly conced es to the position that under Section 155 of Cr.P.C. what is to be referred is the informant and not the information. He submits that even in that event, the entire proceedings are not vitiated and the matter has to be remanded to the Mag istrate to pass necessary ord er on the information.
11. The comp laint and the requisition of the S.H.O. of Athani police station clearly state that the offence alleged was one under Section 171H of IPC and that was a non cognizab le offence. The :8: Crl. P.No.101799/2018 registration of FIR and the investigation in a non cognizable case is governed by Section 155(1) of CR.P.C.
12. Section 155(1) and (2) of Cr.P.C. read as follows:-
"155. Information as to non- cognizab le cases and investig ation 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 b e kept by such officer in such form as the State Government may prescrib e in this b ehalf, and refer the informant to the Magistrate.
(2) No police officer shall investig ate a non-cognizable case without the ord er of a :9: Crl. P.No.101799/2018 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 resp ect of the investig ation (except the power to arrest without warrant) as an officer in charg e of a police station may exercise in a cognizab le case.
(4) Where a case relates to two or more offences of which at least one is cognizab le, the case shall b e deemed to be a cognizab le case, notwithstanding that the other offences are non- cog nizab le."
13. Perusal of Section 155(1) of Cr.P.C. makes it clear that whenever a station house officer receives information of commission of non cognizable offence he has to refer the informant to the Mag istrate and not the information. In this case, the requisition of the S.H.O. states that the information was referred seeking : 10 : Crl. P.No.101799/2018 permission to register the case. The requisition does not even spell that the complaint is enclosed to the requisition.
14. Sections 190 and 200 to 204 of Cr.P.C. prescrib e the proced ure for taking cognizance by the Magistrate and issue of process. Section 190 of Cr.P.C. reads as follows:-
"190. Cognizance of offences by Magistrates- (1) Subject to the provisions of this Chapter, any Mag istrate of the first class, and any Mag istrate of the second class specially empowered in this behalf und er sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon : 11 : Crl. P.No.101799/2018 his own knowledge, that such offence has been committed .
(2) The Chief Judicial Mag istrate may empower any Magistrate of the second class to take cognizance und er sub- section (1) of such offences as are within his competence to inquire into or try."
15. The above provision makes it clear that any information received by Magistrate from a person other than a police officer falls und er Section 190(c) of Cr.P.C. Therefore, the complaint of CW-1 in this case is covered und er Section 190(c) of Cr.P.C.
16. Section 200 of Cr.P.C. deals with the examination of the complainant and Section 204 of Cr.P.C. deal with issue of p rocess. Section 200 (a) dispense with requirement of examining the complainant, if complainant is by a p ublic servant. In this case, the CW-1 is the public servant. Even if the Mag istrate thought that examination of public : 12 : Crl. P.No.101799/2018 servant is not required, then he could have referred the comp laint to the police for registration of the FIR only on CW-1 appearing before him and filing the comp laint. Therefore, on that ground, the Order permitting the respondent police to register the FIR and conduct the investig ation is erroneous.
17. Next question is whether the Order of the Magistrate taking cognizance and issuing process ag ainst the p etitioner for the offence punishable und er Section 171 of IPC is with due application of mind and whether order amounts to abuse of the process of the Court.
18. Section 171H of IPC read s as follows:-
"171H. Illeg al payments in connection with an election.--Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or pub lication, or : 13 : Crl. P.No.101799/2018 in any other way whatsoever for the purpose of promoting or procuring the election of such cand id ate, shall be punished with fine which may extend to five hund red rup ees:
Provid ed that if any person having incurred any such exp enses not exceeding the amount of ten rupees without authority ob tains within ten days from the d ate on which such expenses were incurred the ap proval in writing of the cand idate, he shall be deemed to have incurred such expenses with the authority of the cand id ate.
19. Reading of the above Section makes it clear that to constitute an offence und er Section 171H of IPC, there should be incurring of the exp enses by a person in hold ing any pub lic meeting without the written permission of the contesting cand id ate in the election. The complaint itself : 14 : Crl. P.No.101799/2018 states that the petitioner himself was the contesting cand id ate. Therefore, clearly Section 171H was not attracted against the p etitioner.
20. The Mag istrate while taking cognizance for the offence und er Section 171H of IPC has not noticed the b asic ing redients of Section 171H of IPC. Thus, the ord er of taking cognizance is without application of mind. Since the p roceedings are the out come of the aforesaid lapses as well as the merit with reg ard to the offence und er Section 171H of IPC, the continuation of the proceed ings amounts to failure of end s of justice and ab use of p rocess of law.
21. Therefore, the petition is allowed . Proceedings in CC No.1796/2018 on the file of the Princip al Civil Judge and JMFC, Athani so far they relate to the p etitioner are hereby quashed. : 15 : Crl. P.No.101799/2018
22. In view of the disposal of the petition no further ord ers are required on IA No.1/2018 and disposed of accordingly.
Sd/-
JUDGE Vmb