Bangalore District Court
Market Police Station, Belagavi vs Abhaya Patil on 27 March, 2024
0 cC.No.10683/2023.
KABC030184422023
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 27th day of March, 2024.
: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.10683/2023.
(Old CC.No.868/2017)
Complainant: State by the Market Police Station,
Market Circle, Belagavi City.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: 01. Abhaya Patil,
Ex- MLA, BJP Leader, Belagavi.
02. Mahadevappa Shivalingappa Yadawad,
Ex- MLA, BJP Leader, Belagavi.
(By A.1 & 2 - Sri.R.C.P., Advocate)
1. Date of commission of offence : 08.11.2016.
2. Date of report of offence : 08.11.2016.
3. Arrest of Accused : Not applicable.
a) Date of arrest of Accused : Not applicable.
b) Date of release on bail : 05.04.2019.
1 cC.No.10683/2023.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Sri.C.T.Jayakumar.
5. The date of recording of evidence : 22.02.2024.
6. The date of closing of evidence : 14.03.2024.
7. Offences complained of : U/s.143, 147, 188,
R/w.Sec.149 of IPC.
8. Opinion of the Judge : Accused found
not guilty.
=============
JUDGMENT
01. That the Assistant Sub-Inpsector of Police, Market Police Staion, Market Circle, Belagavi City has filed the charge sheet against the Accused No.1 and 2 for the offences punishable under section 143, 147 and 188, R/w. section 149 of IPC.
02. The case of the prosecution in brief is as follows:
Though, from 09-00 a.m., on 08-11-2016 to 11-11-2016 till 08.00 a.m., the Prohibitory Order under Section 144 of Cr.P.C was in force, on 08-11-2016 at 10.00 a.m., a protest was held by nearly 100 to 150 persons under the Leadership of the Accused Persons, at Chennamma Circle, condemning the celebration of Tippu Jayanthi and murder of BJP Workers Rudresh and Ravi and thereby committed the offence punishable under section 143, 147 and 188, R/w. section 149 of IPC.2 cC.No.10683/2023.
03. On the basis of the complaint of CW-1, case has been registered under Cr.No.404/2016 against the Accused No.1 and 2 for the offences punishable under section 143, 147 and 188, R/w. section 149 of IPC. Thereafter, on completion of the investigation charge sheet has been filed against the Accused Persons. On receipt of charge sheet, the court took cognizance of the said offences.
04. On appearance of the Accused, they were 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, the substance of accusation were read over and explained to the Accused No.1 and 2 in the language known to them for the offences punishable under section 143, 147 and 188, R/w. section 149 of IPC. They have pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
05. In order to bring home the guilt of the Accused Persons, the prosecution has examined all the Three Witnesses as PW-01 to 03 and got marked 03 documents as Ex.P.01 to Ex.P.03. Lrd. Sr.APP has givne up the evidece of CW-4, 6 and 7 and the Evidence of CW-2 and 3 is dropped by rejecting the prayer of Lrd. 3 cC.No.10683/2023. Sr.APP., as it is reported that no such persons are residing in the given address. After closure of the prosecution evidence, the Accused were examined under section 313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The Accused No.1 and 2 have denied their involvement in the crime and did not choose to lead any defence evidence on their behalf.
06. I have heard the arguments addressed by the learned Sr. 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 08-11-2016 at 10.00 a.m., at Chennamma Circle, the Accused No.1 and 2 being the members of unlawful assembly with a common object of committing the offence, held a protest by gathering 100 to 150 persons, condemning the celebration of Tippu Jayanthi and murder of BJP Workers Rudresh and Ravi during the subsistence of the prohibitory order under section 144 of Cr.P.C and thereby committed the offence punishable under section 143, R/w. section 149 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt on the above said date, time and 4 cC.No.10683/2023. place, the Accused No.1 and 2 with common object committing the offence have committed rioting and thereby committed the offence punishable under section 147, R/w. section 149 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 and 2 with common intention of committing the offence have disobeyed the Promulgation Order passed under section 144 of Cr.P.C and thereby committed the offence punishable under section 188, R/w. section 149 of IPC?
4. What Order?
08. The findings of this court on the above points are: [ Point No.1 : In the Negative, Point No.2 : In the Negative, Point No.3 : In the Negative, Point No.4 : As per final order for the following:
REASONS
09. Points No.1 to 3: As these points are interlinked, they are taken up together to avoid repetition of facts and circumstances of the case.
10. The prosecution has alleged that the Accused No.1 and 2 have violated the Prohibitory Orders imposed under section 144 5 cC.No.10683/2023. of Cr.P.C., in anticipation of Protest against Tippu Jayanthi from BJP and other organizations. It is allegeed that on 08-11-2016 at 10.00 a.m., nealry 100 to 150 people protested at Chennamma Circle, under the Leadership of the Accused Persons.
11. The prosecution has examined the Complainant as PW- 2, the I.O as PW-1 and another Police Officer who is said to be the eye-witness is examined as PW-3. Both PW-2 and 3 have deposed that the Accused No.1 and 2 have gathered nearly 100 to 150 people at Chennamma Circle on 08-11-2016 at 10.00 a.m., and held the protest inspite of CW-1 informing them about the Prohibitory Orders imposed on the said said. They have deposed that the Accused have formed groups here and there and held the protest till the Office of the D.C and committed the alleged offences.
12. Both the witnesses are cross-examined by the counsel for the Accused, wherein, it is denied about the alleged presence of the Accused No.1 and 2 in the alleged protest. It is also denied that on the alleged date, time and place the Prohibitory Order was in force. All the suggestions put to PW-2 and 3 were denied. 6 cC.No.10683/2023.
13. Now, except the evidence of PW-2 and 3 who are the Official Witnesses, there is no other evidence to show that the Prohibitory Order under section 144 of Cr.P.C., was in force on the alleged date and there is also no evidence to show that the Accused have formed unlawful assembly and held the protest along with 100 to 150 people. Though, it is the allegation of the prosecution that nearly 100 to 150 people had participated in the protest none of them are arrayed as Accused to this case expect the Accused No.1 and 2 nor any of them are cited as witness to prove that the said protest was held under the Leadership of the Accused No.1 and 2.
14. The prosecution has examined the I.O has PW-1, who has deposed about receiving the complaint from CW-1 and registering the case against the Accused and also about conducting the spot mahazar at the scene of occurrence and recording of statement of the witnesses and then filing charge sheet against the Accused persons. In the cross-examination, he has deposed that though, in the compliant, it is mentioned that 100 to 150 people had participated in the protest, he has not investigated about those people. He has also deposed that he has not recoded statement of any independent witnesses who were at 7 cC.No.10683/2023. the spot when the protest was going on. The complaint, FIR and the mahazar are marked as Ex.P 1 to 3.
15. Section 143 merely provides punishment for unlawful assembly and therefore, it becomes important to scrutinize section 141 which defines the term 'unlawful assembly'. Thus, for being liable under section 143 one has to fulfill the ingredients of the unlawful assembly such as the assembly has 5 or more persons and a common object has to be shared amongst them. Here, in the case on hand, except the Accused No.1 and 2 no other person is arrayed as Accused. So, the first and foremost ingredient itself is not fulfilled, so there is no question of sharing common object.
16. Next, coming to Section 147 of IPC, which punishes rioting. To hold a person liable for the offence of rioting and making him liable under section 147 of the Indian Penal Code, the ingredients that must be present are such as, there must be an unlawful assembly as defined under section 141 of the Code. The Accused must be a member of such unlawful assembly as defined under section 142 of the Code. There must be the use of force or violence by the said unlawful assembly or it could be by any person amongst them. The said force or violence must be used in 8 cC.No.10683/2023. the prosecution of the common object of the said unlawful assembly.
17. Here, in the case on hand, none of the ingredients that are essential for constituting the offence under Section 143 and 147 of IPC, are fulfilled. Both PW-2 and 3 have not deposed about the unlawful assembly or about the Accused persons rioting at the spot.
18. Next, coming to Section 188 of IPC. For constitution of the said offence, the following ingredients must be there:
(1) Existence of an order promulgated by a public servant.
(2) Public Servant must be lawfully empowered to promulgate such order. (3) The Accused must have knowledge of the order promulgated by the public servant. (4) The Accused must disobey the order promulgated by the public servant. (5) Such obedience must cause or tend to cause (a) obstruction, annoyance or injury or risk of it to any person lawfully employ or (b) danger to human life, health and safety.
19. Now, in the case on hand, the prosecution has examined PW-2 and 3, who has despoed that the Accused have violated the 9 cC.No.10683/2023. Prohibitory Order under Section 144 of Cr.P.C. But, no document is before this court to establish that such an order was in force on the said date. Just because, these witnesses have deposed that there was an order, it is not suffice to hold the Accused Persons guilty of the alleged offence. At the cast of repetition, it is to be stated that no document is before the court showing that a Order was promulgated by a Public Servant. If any, such order is forthcoming, then the said Public Servant must be lawfully empowered to promulgate such order, and the said order must be within the knowledge of the Accused persons. Only, then the offence alleged under section 188 of IPC, will said to be have been committed by the Accused Persons. Here, in the case on hand, the prosecution has not produced any such order. Without there being, any such order from the authorized public servant, even, if the Accused persons have held a Protest as alleged by the prosecution, section 188 of IPC will not be attracted.
20. When, the ingredients of section 143, 147 and 188 of IPC, is not fulfilled any amount of oral and documentary evidence adduced by the prosecution is not helpful to get a conviction to the Accused Persons. As such, without any further discussion, it can be safely said that the prosecution has failed to prove the case as 10 cC.No.10683/2023. projected. The oral and documentary evidence placed before this court is not suffice to convict the Accused Persons for the alleged offences. Accordingly, based on the discussion made above, Points No.1 to 3 are answered in the NEGATIVE.
21. Points No.4:- In view of my findings on the above Points No.1 to 3, the Accused No.1 and 2 are entitled to be acquitted by giving benefit of doubt. Hence, I proceed to pass the following:
ORDER Acting under section 255(1) of Cr.P.C., the Accused No.1 and 2 are acquitted of the offences punishable under section 143, 147 and 188, R/w. section 149 of IPC.
The bail bonds and surety bonds of the Accused No.1 and 2 stand cancelled, after the Appeal Period.
(Typed by me, directly on the computer, corrected and then pronounced by me, in open court on this the 27th day of March - 2024). Digitally signed
PREETH by PREETH J Date:
J 2024.03.28
17:16:46 +0530
(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) 11 cC.No.10683/2023. ANNEXURES Witnesses examined for the Prosecution:
PW.01 : S,S Solabannannavar, PW.02 : C.T. Jayakumar, PW.03 : G.N. Gavaji,
Documents exhibited for the Prosecution:
Ex.P.01 : Complaint, Ex.P.01(a) : Signature of PW.01. Ex.P.01(b) : Signature of PW.02. Ex.P.02 : FIR, Ex.P.02(a) : Signature of PW.01. Ex.P.03 : Mahazar, Ex.P.03(a) : Signature of PW.01.
Material object exhibited for the Prosecution: -
- NIL -
Witnesses examined for the defence Accused:
- NIL -
Documents exhibited for the defence Accused:-
- NIL -Digitally signed
PREETH by PREETH J
Date:
J 2024.03.28
17:16:58 +0530
(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) 12 cC.No.10683/2023.