Karnataka High Court
Sri B Shreepathy Rao vs The Union Of India on 20 August, 2024
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WP No. 8936 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 8936 OF 2020 (GM-RES)
BETWEEN:
SRI. B. SHREEPATHY RAO,
S/O. SRI. B. GANAPATHY RAO,
AGED ABOUT 68 YEARS,
R/AT NO.80, 4TH CROSS,
VENKATADRI LAYOUT,
BEHIND APOLLO HOSPITAL,
BANNERUGATTA ROAD,
BENGALURU - 560 076
...PETITIONER
(BY SRI. GANAPATI BHAT VAJRALLI, ADVOCATE)
Digitally signed AND:
by SWAPNA V
Location: high 1. THE UNION OF INDIA
court of
karnataka REPRESENTED BY ITS
PRINCIPAL SECRETARY,
MINISTRY OF LAW AND JUSTICE,
DEPARTMENT OF LEGAL AFFAIRS,
SHASTRI BHAVAN,
NEW DELHI - 110 001
2. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
DEPARTMENT OF HOME AFFAIRS,
VIDHANA SOUDHA,
BENGALURU - 560 001
3. THE COMMISSIONER OF POLICE,
BENGALURU CITY, INFANTRY ROAD,
BENGALURU - 560 001,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
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WP No. 8936 of 2020
HIGH COURT BUILDING,
BENGALURU - 560 001.
4. THE INSPECTOR OF POLICE
JAYANAGARA TRAFFIC POLICE STATION,
JAYANAGARA 4TH BLOCK,
BENGALURU - 560 011,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. S.R. DODAWAD, CGC FOR R1.
SMT. K.P. YASHODHA, HCGP FOR R2 TO R4.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CRIMINAL PROCEDURE CODE PRAYING TO - ISSUE WRIT TO STRUCK
DOWN SECTION 376 OF THE CRIMINAL PROCEDURE CODE AS
UNCONSTITUTIONAL. QUASH THE IMPUGNED ORDER DATED
01.08.2019 PASSED BY THE LXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGLAURU, IN CRIMINAL APPEAL
NO.1951/2018 DISMISSING THE PETITIONER CRIMINAL APPEAL AS
NOT MAINTAINABLE PROCEEDED, AS PER ANNEXURE-G AND ETC.,
THIS WRIT PETITION, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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WP No. 8936 of 2020
ORAL ORDER
The petitioner being the accused in C.C.No.6912/2017 on the file of learned Metropolitan Magistrate, Traffic Court - IV, Bengaluru and the appellant in Crl.A.No.1951/2018 on the file of learned LXII Additional City Civil and Sessions Judge, Bengaluru, is seeking (i) Issuance of writ of certiorari to struck down Section 417 of the Bharatiya Nagarika Suraksha Sanhita 2023 (for short 'BNSS') as unconstitutional; (ii) Issuance of writ of certiorari to quash the impugned order dated 01.08.2019 passed in Crl.A.No.1951/2018 and to quash the impugned judgment passed in C.C.No.6912/2017 and also to issue writ of mandamus directing the Government to provide surveillance camera data to the general public, whoever asks for it and produce it as evidence compulsorily against any traffic violations case before the Court of law; (iii) issue writ of mandamus directing the Commissioner of Police, Bengaluru city to hold a full-fledged enquiry into the petitioner's complaint dated 22/23.06.2017 produced as per Annexure-B and to take necessary action against the erring police officials who wrongfully took action against the petitioner and cause considerable mental anguish to him and also to grant such -4- NC: 2024:KHC:33303 WP No. 8936 of 2020 other reliefs under the circumstances of the case, in the interest of justice and equity.
2. Brief facts of the case are that a police notice as per Annexure-A was issued to the petitioner by the Traffic Police alleging (i) non production of documents and (ii) stopping of his two wheeler, crossing the white / stop line. Since, the petitioner was not ready to pay the fine of Rs.100/- imposed on him, a petty case was registered and charge sheet as per Annexure-D came to be filed for the offence punishable under Section 130(1) read with Section 177 of Motor Vehicles Act (for short 'MV Act') and Section 119 read with Section 177 of MV Act.
3. The learned Magistrate took cognizance of the offence and the accused was summoned in C.C.No.6912/2017. The accused appeared before the Trial Court and pleaded not guilty. The prosecution examined PWs-1 and 2 and got produced Ex.P1 i.e., the police notice. The accused has denied the incriminating materials but has not chosen to step into the witness box to depose about his defence. However, during cross-examination of the prosecution witnesses, he got marked Ex.D1 and Ex.D2 in support of his defence.
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4. The Trial Court after taking into consideration all the materials on record came to be conclusion that the prosecution was successful in proving the guilt of the accused for the offence under Section 177 of MV Act and imposed a fine of Rs.100/- to be paid by the accused.
5. Being aggrieved by the same, the petitioner has preferred an appeal i.e., Crl.A.No.1951/2018. The said appeal came to be dismissed by the First Appellate Court holding that the appeal is not maintainable in view of the bar under Section 376 of Cr.P.C. Being aggrieved by the same, the petitioner is before this Court in this writ petition.
6. Heard Sri. Ganapati Bhat Vajralli, learned counsel for the petitioner, Sri. S. R. Dodawad, learned Central Government Counsel for respondent No.1 and Smt. K. P. Yashodha, learned High Court Government Pleader for respondent Nos. 2 to 4. Perused the materials on record.
7. Learned counsel for the petitioner addressed his argument at length to contend that scene of occurrence or the place of occurrence is not proved by the prosecution. According to the learned counsel for the petitioner, the scene of -6- NC: 2024:KHC:33303 WP No. 8936 of 2020 occurrence shown in the police notice - Ex.P1 is entirely different from the place shown in the charge sheet.
8. The second contention raised by the learned counsel for the petitioner is that the Trial Court committed an error in convicting the accused, ignoring the fact that no materials are placed before the Court to prove offence under Section 130 of MV Act. When the police notice itself referred to the DL number of the petitioner, the contention of the prosecution that the petitioner had not produced the Driving License cannot be accepted. More over PW-2 has admitted production of soft coy of DL in his statement recorded by the police, marked as Ex-D2. Therefore, the Trial Court committed an error in convicting the accused.
9. The next contention raised by the learned counsel for the petitioner is that, even though the notification in the official gazette is required to be issued regarding the Traffic Regulations under Section 116 of MV Act, no such notification was produced before the Trial Court and therefore, no offence under Sections 177 or 119 of MV Act are made out. -7-
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10. The next contention raised by the learned counsel for the petitioner is that, in spite of asking to furnish the CCTV footage pertaining to the scene of occurrence at the time of offence, the same is not produced before the Trial Court. Therefore, the contention of the prosecution is falsified.
11. The other contention taken by the learned counsel for the petitioner is that the petitioner had never crossed the white line. Even according to the prosecution, only he has touched the white line, which cannot be an offence under MV Act. Ignoring all these facts and circumstances, the Trial Court committed an error in convicting the accused and therefore, the said judgment of conviction is liable to be set aside.
12. Learned counsel for the petitioner contended that Section 376 of repealed Cr.PC and the present Section 417 of BNSS is ultra virus and it infringes the fundamental right to challenge the judgment of conviction and order of sentence and the same is liable to be held ultra virus. Learned counsel for the petitioner submits that section 417 of BNSS violates Articles 14, 19 and 21 of Constitution of India and therefore, the writ petition is liable to be allowed by declaring that the said -8- NC: 2024:KHC:33303 WP No. 8936 of 2020 provisions of law are ultra virus and violates the fundamental right of a citizen.
13. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Shayara Bano v/s Union of India and Others1 in support of his contention that when the provision of any legislation is arbitrary in nature and its constitutional validity could be challenged and the same is liable to be set aside.
14. Learned counsel for the petitioner submitted that the petitioner was not given an opportunity to contest the matter, which is discriminatory against him, as the accused in any other offence will have the benefit of challenging the judgment on conviction, which was not available to the petitioner. Hence, the petition is liable to allowed. Accordingly, he prays for allowing the petition.
15. Per contra, learned CGC for respondent No.1 opposing the petition submitted that Section 376 of repealed Cr.PC is verbatim similar to Section 417 of BNSS. As per Section 376 of Cr.PC, no appeal is allowed in petty cases. Four 1 (2017) 9 SCC 1 -9- NC: 2024:KHC:33303 WP No. 8936 of 2020 different categories of cases are referred to in Section 376. Preferring an appeal in respect of those offences is not permissible under law. Learned CGC also submitted that as per Section 372 of Cr.PC corresponding to Section 413 of BNSS, no appeal shall lie unless otherwise provided under the enactment. Learned CGC submits that Section 372 of Cr.PC, corresponding to Section 413 of BNSS is never challenged by the petitioner. Therefore, the writ petition seeking relief regarding declaration of Section 376 of Cr.PC and Section 417 of BNSS is not available to the petitioner.
16. Learned CGC for respondent No.1 placed reliance on the decision of the Constitution Bench of the Hon'ble Apex Court in Competition Commission of India v/s Steel Authority of India Limited and Another2 in support of his contention that right of appeal is neither a natural nor inherent right but it is only a substantive statutory right provided under the statute. Under such circumstances, not providing for preferring an appeal will not violate Article 14 of Constitution of India.
2 (2010) 10 SCC 744
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17. Learned CGC also referred to the decision of Division Bench of the Bombay High Court in Kumar J. Sujan & Others v/s State of Maharashtra3 to contend that the decision of the Hon'ble Apex Court was considered by the Division Bench of Bombay High Court and it has reiterated that Section 376 of Cr.PC is not ultra-virus and upheld its constitutional validity.
18. Learned CGC for respondent No.1 also placed reliance on the decision of the Hon'ble Apex Court in Kusum Ingots & Alloys Ltd v/s Union of India and Another4 in support of his contention that effect of declaring a provision in a statute as ultra virus by a High Court will have an effect throughout India and when the Division Bench of Bombay High Court upholds the constitutional validity of Section 376 of Cr.PC, which is verbatim similar to Section 417 of BNSS, the petitioner cannot once again challenge the constitutional validity of the said provisions of law before this Court. Therefore, he prays for dismissal of the writ petition in the interest of justice.
3 (2012) SCC Online Bombay 1677 4 (2004) 6 SCC 254
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19. Learned High Court Government Pleader opposing the petition submitted that the petitioner cannot have luxury of challenging the constitutional validity of either Section 376 of Cr.PC or Section 417 of BNSS, as the matter is no more res integra in view of the decision of Hon'ble Apex Court as well as by Division Bench of Bombay High Court referred to by the learned CGC for respondent No.1.
20. Learned HCGP also submitted that the writ petition filed by the petitioner for quashing the judgment of conviction is not available under the writ jurisdiction of this Court as it is not permissible for the Court to consider oral and documentary evidence placed before the Trial Court and to consider the validity of the finding recorded by the learned Magistrate.
21. On merits of the case, learned HCGP submitted that the place of occurrence as now raised by learned counsel for the petitioner was never disputed by the petitioner before the Trial court. Even though it is contended that there are contradictions in the evidence of PW-2, such contradictions are not proved in accordance with law. She further submitted that Ex.D-2 is not admissible under law as it is the statement before
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NC: 2024:KHC:33303 WP No. 8936 of 2020 the Police recorded under Section 161 of Cr.PC. She submitted that the Trial Court has taken into consideration the oral and documentary evidence placed before it to convict the accused for the offences punishable under Section 177 read with Section 119 of MV Act. There is no perversity or illegality in the said judgment and hence, he prays for dismissing the petition.
22. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the Petitioner has made out any grounds to allow the petition?"
My answer to the above point is in the 'Negative' and pass the following:
REASONS
23. The petitioner is challenging the constitutional validity of Section 376 of repealed Cr.PC, which is verbatim similar to Section 417 of BNSS as rightly contended by learned CGC for respondent No.1. The petitioner has not challenged the constitutional validity of Section 372 of Cr.PC or Section 413 of
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NC: 2024:KHC:33303 WP No. 8936 of 2020 BNSS. It is the contention of the petitioner that by not providing an opportunity to challenge the judgment of conviction passed by the Trial court, by barring preferring of appeal under these provisions of law, the constitutional right of the petitioner is curtailed. He has placed reliance on the decision of the Hon'ble Apex Court in Shayara Bano(supra) where the constitution bench of the Hon'ble Apex Court considered the constitutional validity of pronouncing Triple Talaq and considered the question as to whether Triple Talaq was having any legal sanctity and after discussing at length, held that when there is manifest arbitrariness in the legislation, the same can be challenged to question its constitutional validity. But in the present case, the facts and circumstances are entirely different, where Section 376 of Cr.PC and Section 417 of BNSS bars preferring of an appeal in certain categories of cases, classified as petty cases.
24. The constitutional bench of the Hon'ble Apex Court in Competition Commission of India (supra) considered the position of law as to whether right of an appeal is natural or inherent right or whether it is a statutory right provided by the
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NC: 2024:KHC:33303 WP No. 8936 of 2020 statute. After discussing at length, the Hon'ble Apex Court held in paragraph Nos. 50 and 51 as under:
"50. The principle of "appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure" is now well settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional. Such law does not violate Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain (P) Ltd .v. State Trading Corpn. of India Ltd, and Gujarat Agro Industries Co. Ltd. v. Municipal Corpn of the City of Ahmedabad.
51. Right of appeal is neither a natural nor inherent right vested in a party. It is substantive statutory right regulated by the statute creating it. The cases of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and Kashmir Singh vs. Harnam Singh may be referred to on this point. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party."
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25. Thus, the Hon'ble Apex Court made it very clear that right of appeal is neither a natural or inherent right and it is only a substantiate statutory right regulated by the statute. Therefore, the statute for the valid reasons can have reasonable restrictions on preferring of an appeal, and it cannot be said that it violates either Articles 14,19 or 21 of the Constitution of India.
26. Learned counsel for respondent Nos.1 and 2 also placed on reliance on the decision of the Division Bench of the Bombay High Court in Kumar J(supra), wherein, the Division Bench has considered the constitutional validity of Section 376 of Cr.PC in the light of the fundamental rights enshrined under Articles 14 and 21 of Constitution of India and held in paragraph Nos. 14 and 20 as under:
"14. Thus, the law seems to be that there is no inherent right of an Appeal and the same has to be conferred by a statute. The Legislature can confer the said right or can make available the said right conditionally. The Legislature may withdraw the said right by amending the Statute which confers the right of Appeal. Normally such amendment does not affect pending proceedings.
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20. There is no inherent right of appeal. If statutes creates a right of appeal against the order of conviction, any Act which prevents the Accused from preferring an Appeal or availing the statutory remedy of appeal may be in violation of Article 21 of the Constitution of India. That is the ratio of the decision in case of Dilip S. Dahanukar v. kotak mahindra co. ltd., & another5. But a legislation cannot be struck down on the ground that there is a violation of Article 21 of the Constitution of India as a result of failure to provide for an Appeal against a particular category of orders of conviction."
27. In view of the above, the Division Bench of the High Court of Bombay dismissed the criminal writ petition as devoid of merits. Thus, the challenge to Section 376 of Cr.PC and Section 417 of BNSS is no more res integra as the Hon'ble Apex Court as well as Bombay High Court have categorically declared that such provisions restricting the right of appeal cannot be termed as violative of the fundamental rights, as it is only a substantive statutory right provided under the statute.
28. Learned CGC for respondent No.1 placed reliance on the decision of Kusum Ltd (Supra) in support of his contention that when an order is passed in the writ petition, 5 2007(6) scc 528
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NC: 2024:KHC:33303 WP No. 8936 of 2020 questioning the constitutional validity of parliamentary act, such an order will have effect through out the territory of India, subject to the applicability of Act. This position of law is also not disputed and when the Division Bench of Bombay High court in categorical terms upholds the constitutional validity of Section 376 of Cr.PC, this Court once again cannot consider the very same question to arrive at a different conclusion when Section 417 of BNSS is verbatim similar to Section 376 of Cr.PC. Therefore, I do not see any merits in the contention taken by the petitioner in challenging the constitutional validity of the provisions either Cr.PC or BNSS. Accordingly, it is liable to be rejected.
29. The Trial Court based on the case of the prosecution proceeded to convict the accused. When Section 376 of Cr.PC specifically bars preferring of an appeal against the judgment passed in petty cases, the petitioner will not have the right of appeal. Accordingly, the First Appellate Court rightly dismissed the criminal appeal preferred against the impugned judgment of conviction. This Court being writ Court is not supposed to go in to the disputed facts of any case to consider the oral and
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NC: 2024:KHC:33303 WP No. 8936 of 2020 documentary evidence that are placed before the learned Magistrate.
30. Even if the contention of the learned counsel for the petitioner with regard to the facts of the case is to be taken into consideration in the light of lengthy arguments addressed that the scene of occurrence is not proved by the prosecution, the charge sheet along with the oral and documentary evidence placed before the Trial Court are produced by the learned counsel for the petitioner. On reading the entire oral evidence and also on perusal of the documentary evidence, I find that the petitioner had never taken any defence disputing the scene of occurrence. There is absolutely no cross examination of either PW-1 or PW-2 in this regard. It is only for the first time such defence was raised before this Court and hence, the same is liable to be rejected.
31. The next contention taken by the learned counsel for the petitioner is with regard Section 130 of MV Act to contend that the petitioner has produced the soft copy of the Driving License before the Traffic Police and therefore, Section 130 of MV Act could not have been invoked for filing charge
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NC: 2024:KHC:33303 WP No. 8936 of 2020 sheet. It is pertinent to note that even though the charge sheet is filed under Section 130(1) read with Section 177 of MV Act, the accused was not convicted for the said provision of law. The judgment of conviction and order of sentence is only with regard to Sections 119 read with Section 177 of MV Act.
32. Learned counsel for the petitioner tried to draw the attention of the Court to Ex.D2 - Statement of PW-2 recorded by the Investigating Officer during investigation. Admittedly, the said statement was recorded under Section 161 of Cr.PC. The attention of PW-2 was never drawn to contend that there is any contradiction in the statement. Unless such a procedure is adopted by the petitioner, he cannot place reliance on the entire statement marked as Ex.D2 as it is not admissible in law. More over when the accused is not convicted for the offence under Section 130 of MV Act, I do not find any justification to consider all these materials including, Ex-D2 or Section 116, where there is reference for issuance of a notification or erection of suitable places of the appropriate traffic signs. The contention of the learned counsel for the petitioner that issuance of notification in the official gazette is made mandatory under Section 116 (1)(b) of MV Act cannot be
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NC: 2024:KHC:33303 WP No. 8936 of 2020 accepted, in view of the simple and clear wordings used in the said provision of law.
33. The next contention raised by the learned counsel for the petitioner is with regard to non production of CCTV footage by the prosecution to prove commission of the offence. According to the learned counsel for the petitioner he had filed a memo, seeking to summon the CCTV footage from the police. It is also his contention that an application for providing such information under Right to Information was filed. Learned counsel for the petitioner has produced the acknowledgement issued by the DCP, Bengaluru, according to which, it is specifically stated that CCTV footage is not available as on the date of the incident at the place of occurrence. The petitioner himself has produced the report of the ACP, Bengaluru to the effect that CCTC footage as on the date and time of the incident at the scene of occurrence is not available as the cable was cut and nothing was recorded in CCTV. When it is shown that such material is not available, learned counsel for the petitioner cannot be permitting to contend that CCTV footage is not produced deliberately by the police. I do not see any merit in such contention.
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34. The next contention raised by the learned counsel for the petitioner is that the petitioner had never crossed the white line as contended by the prosecution. But unfortunately, that was not the line of cross examination by the petitioner either to PW-1 or PW-2. On the other hand, learned counsel for the petitioner has produced Annexure -B, the complaint submitted by the petitioner to the Commissioner of Police, Bangalore, wherein he categorically admitted that the front wheel of his scooter had crossed the white line at the time of occurrence. It is the candid admission on the part of the petitioner regarding crossing of the white line, which now cannot be disputed by the learned counsel for the petitioner.
35. The judgment of conviction and order of sentence passed by the Trial Court is taken into consideration where it has referred to oral and documentary evidence placed before it and rightly came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 177 of MV Act. I do not find any perversity in the said order.
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36. Even though, all the above exercise is out side the scope of Articles 226 and 227 of Constitution of India or under Section 482 of Cr.PC, I thought it fit to consider the contention of the learned counsel for the petitioner on merits for final disposal of the writ petition and the points raised therein. There is absolutely no merits in the petition. Hence, the petition is liable to be dismissed.
37. Accordingly, I answer the above point in the Negative and proceed to pass the following:
ORDER The petition is dismissed.
Sd/-
(M G UMA) JUDGE SS,SPV List No.: 2 Sl No.: 1