Bangalore District Court
State By Kerur Police Station vs Sri. B.B. Chimmanakatti on 27 January, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH82)
Dated: This the 27th day of January, 2019
Spl. CC No. 1117/2019
: Present :
Sri RAMACHANDRA.D.HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Complainant : State by Kerur Police Station,
Bagalkot.
(Represented by Public
Prosecutor)
V/s
Accused: 1. Sri. B.B. Chimmanakatti,
Aged about 56 years,
R/at Jammanakatti,
Kerur Taluk, Badami, Bagalkot.
2. Sri. S.R. Patil,
Aged about 60 years,
R/at Bilagi, Bagalkot.
3. Sri. Timmapur B.,
Aged about 52 years,
R/at Mudhol, Bagalkot.
4. Sri. Mahesh Shanmugappa
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Hosagoudra,
Aged about 38 years,
R/at Badami, Bagalkot
5. Sri. Sanju Yenkanna,
Aged about 35 years,
R/at Chimmanakatti,
Kerur Taluk, Badami,
Bagalkot.
Date of offence 28042018
Date of report of offence 28042018
Name of the complainant Sri. Yesu Bengalur
Date of commencement of 16012020
recording of evidence
Date of closing of 22012020
evidence
Offences complained of u/s 188 of IPC and Sec.3(a) 6
r/w Sec. 7 of Religious
Institutions (Prevention of
Misuse) Act, 1988.
Opinion of the Judge Accused found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri. SHM for A1 & A5, Sri.
SSS/MR for A2 to A4.
JUDGMENT
Accused No.1 to 5 have been charge sheeted by the Station House Officer, Kerur Police Station, Bagalkot for 3 Spl.CC No.1117/2019 offences under Sec.188 of IPC and Sec.3(a), 6 r/w Sec.7 of Religious Institutions (Prevention of Misuse) Act, 1988.
2. The brief and relevant facts leading to the case of prosecution are as under: That P.W.4 (C.W.1) by name Yesu Bengalur, being the complainant in this case, lodged a complaint before PSI, Kerur Police Station on 28.04.2018 at 4.30 p.m. as per Ex.P.3 alleging that, the Deputy Commissioner and District Returning Officer of Bagalkot appointed him as Flying Squad Head, so also appointed Flying Squad members by name H.A. Hawaldhar, ASI Badami Police Station, one Manjunath Talawar, who is First Division Assistant MLBC, Guledagudda, one Manjunath, Data Entry Operator (Cameraman) of Hanapur Grama Panchayath S.P. They commenced their duty on 24.04.2018.
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3. It is stated by the complainant that, on 28.04.2018 at 11.30 a.m., the complainant and his team were on duty at Guledagudda Town. At that time, they received information that, some of the political leaders of the Congress Party are coming to Jammanakatti village for the purpose of election campaign. Therefore, this complainant and his team enquired one Sri. G.H. Vishwanath, F.D.A. to know that, whether permission to campaign is obtained by the said congress party leaders. It was revealed to them that, no such permission was being obtained by the said congress party leaders to conduct election campaign at Jammanakatti village. Therefore, they went to the said Jammanakatti village at about 12.30 p.m. on 28.04.2018. When they reached the said Jammanakatti village, the local MLA by name B.B. Chimmanakatti and leaders like S.R. Patil, R.B. Timmapur, Mahesh Hosagoudra, Sanju Chimmanakatti, the president of Jammanakatti grama panchayath were 5 Spl.CC No.1117/2019 found taking darshan at Sri. Marutheshwara temple. Thereafter by walk, they went to the compound of Sri. Panduranga Rukmini Temple at Jammanakatti. In the premises of the said temple, they addressed about 200 250 public by making political speech on behalf of Congress political party. They concluded the said meeting at 1.15 p.m. on that day. It is alleged by the complainant that, without getting permission from the Returning Officer, the aforesaid persons, who are accused in this case have conducted the said election campaign and violated the provisions of Indian Penal Code as well as Religious Institutions (Prevention of Misuse) Act, 1988
4. With these allegations, the complainant filed complaint as per Ex.P.3 before P.W.6 Siddappa Hokrani, the Head Constable of Kerur Police Station. This P.W.6, based upon Ex.P.3, registered crime in Cr.No.124/2018 of Kerur Police Station and set the criminal law in motion. He recorded the statements of witnesses by name 6 Spl.CC No.1117/2019 Manjunath Talawar, Manjunath Goudar and H.A. Havaldar.
5. On the following day, he went to the scene of occurrence at 10.00 a.m and conducted spot panchanama in the presence of C.W.2 and C.W.3 till 11.00 a.m. as per Ex.P.1. Obtained documents from the complainant with regard to his deputation as an officer of Flying Squad. Thereafter, handed over investigation to C.W.8.
6. C.W.8 Basavaraj Kolur being examined as P.W.7 on taking up investigation on 23.05.2018 as the investigation was completed, he filed charge sheet against the accused persons for the aforesaid offences.
7. After filing the charge sheet, learned Sr. Civil Judge and JMFC, Badami took the cognizance of the offences and summons came to be issued to the accused persons. Thereafter, as this court has been established to deal 7 Spl.CC No.1117/2019 with the criminal cases relating to MLA's and MP's by orders dated 16.09.2019, the entire records of this case are transmitted to this court by Sr. C.J. & JMFC, Badami and renumbered as above.
8. On receipt of the records, the presence of accused before this court is secured. All the accused No.1 to 5 appeared before this court and are enlarged on bail.
9. Thereafter, after hearing both the sides, charges under Sec.188 of IPC and Sec.3(a), 6 r/w Sec.7 of Religious Institutions (Prevention of Misuse) Act, 1988 framed, read over and explained to the accused persons in the language known to them. They pleaded not guilty and claimed to be tried.
10. The prosecution in order to prove its case, examined in all 7 witnesses from P.W.1 to P.W.7 and got marked documents at Ex.P.1 to P.5 with respective signatures thereon. Closed prosecution evidence. 8
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11. After closure of the prosecution evidence, accused No.1 to 5 are questioned under Sec.313 of Cr.P.C. so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution witnesses. They denied their complicity in the crime. They did not choose to lead any defence evidence on their behalf.
12. Heard the arguments of learned Public Prosecutor and learned respective counsels for accused persons. Meticulously perused the records.
13. It is submitted by the learned Public Prosecutor that, in this case, the prosecution witnesses have spoken truth before the court about the commission of offences in the manner alleged in the charge sheet. Their evidence is acceptable. Therefore, she submits that, prosecution in this case is able to establish the guilt of accused for the aforesaid offences.
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14. As against this submission, the learned counsel for accused No.1 and 5 Sri. Shivaji Mane submits that, in this case, the very taking of cognizance of the offence against the accused is bad in law. The witnesses in this case have not supported the case of the prosecution in material particulars. He submits that, the provisions of Sec.155 of Cr.P.C. have been violated. Sec.195 of Cr.P.C. is not adhered by the court. In support of his submission, he places reliance on the following judgments;
1. Crl.P.No.2645/2019 passed by Hon'ble High Court of Karnataka, Bengaluru dated 24.04.2019 in case of (Abilesh J and Others V/s State of Karnataka by Adugodi Police, Bengaluru).
2. Crl.P.No.101997/2019 passed by Hon'ble High Court of Karnataka dated 10.02.2019 in case of (Vegappa Guruhnaga Jangalagi V/s State of Karnataka through PSI Kagavad PS, Kagavad) 10 Spl.CC No.1117/2019
3. Crl.P.No.2077/2019 passed by Hon'ble High Court of Karnataka dated 22.04.2019 in case of (Devananda Vs State of Karnataka, Vijayapura Rural PS, Vijayapura District).
15. The counsel for accused No.2, 3 and 4 Sri. ASM, Advocate submits that, the prosecution case suffers from material particulars and the principles laid down in the judgments as aforesaid are applicable to the present facts in this case. Hence, the respective counsels for accused submit to acquit the accused persons.
16. I have applied my mind to the arguments of both the sides. In view of the rival submissions of both the sides, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, accused No.1 to 5 herein on 28.04.2018 at about 11.30 a.m. at Jammanakatti village, though there was announcement of Election Code of Conduct by the Returning Officer of Vidhana Sabha 11 Spl.CC No.1117/2019 Elections, 2018 of Guledagudda Constituency, at 12.30 a.m. even though having knowledge about the Election Code of Conduct passed by the Returning Officer during Elections which is being promulgated by the Returning Officer lawfully empowered to promulgate the order of code of conduct, and were directed to abstain from any political speech etc., entered Sri. Panduranga Rukmini Temple at Jammanakatti by dis obeying the directions issued by the Returning Officer did political speech by using small size cordless mic, addressed 200 to 250 public gathered there, and did the said meeting till 1.15 p.m. on that day and thereby committed an offence punishable under Sec.188 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that, on the above said date, time and place, these accused No.1 to 5 by disobeying the orders passed by the Returning Officer, conducted the meeting of 12 Spl.CC No.1117/2019 addressing the public within the premises of Sri. Panduranga Rukmini Temple without seeking any permission from the competent authority used the temple premises and thereby committed an offence punishable under Sec.3(a), 6 r/w Sec.7 of Religious Institutions (Prevention of Misuse) Act, 1988?
3. What order or sentence?
17. My answer to the above points are as under;
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order, for the following REASONS
18. Points No.1 & 2: These two points are inter linked with each other. Therefore, I would like to discuss them together so as to avoid the repetition of discussion and confusion.
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19. As could be seen from the records of this case, specific allegations have been made by the prosecution against accused persons that, these accused persons are the political leaders of Congress Party. During the year 2018, Guledagudda Vidhana Sabha elections, without obtaining any permission from the Returning Officer, though there was prohibition of conducting any election campaign, have conducted the said election campaign at 12.30 p.m. till 1.15 p.m. in the premises of Sri. Panduranga Rukmini Temple situated at Jammanakatti village and thus have violated the prohibition order and hence, committed the offences under Sec.188 of IPC and the provisions of Religious Institutions (Prevention of Misuse) Act, 1988.
20. In a case of present nature, it is the bounden duty of the prosecution to prove the ingredients of the offences with legal evidence.
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21. In this case, the prosecution to prove the offences against the accused persons, relied upon in all 5 documents and they are Ex.P.1 panchanama, Ex.P.2 statement of P.W.3, Ex.P.3 complaint allegations, Ex.P.4 FIR and the Ex.P.5 document showing the deputation of C.W.1 for duties on elections. It also relied upon the evidence of P.W.1 to 7.
22. Amongst the witnesses so examined, P.W.1 by name Venkappa Handi and P.W.2 by name Hullappa Bommanagi are the panchas to the scene of occurrence. These two witnesses have been turned hostile. By declaring them as hostile witnesses, crossexamination is directed to these two panchas by the learned Public Prosecutor. They specifically denied about their presence at the scene of occurrence to the panchanama as per Ex.P.1 so conducted. But say athat, at the instance of police, they put their signatures. Nothing worth is elicited from the mouth of these witnesses so as to disbelieve 15 Spl.CC No.1117/2019 their version given in the examinationinchief. In criminal cases, panchas are the authors of the panchanama. If they turn hostile, no evidentiary value can be attached to their evidence. Therefore, the evidence of P.W.1 and P.W.2 become inconsequential to the case of the prosecution. Therefore, I disbelieve the evidence of P.W.1 and P.W.2.
23. P.W.3 Manjunath Gowdar is the Flying Squad Member and was also the Cameraman. He says that, he has not seen accused persons on that day and he never went to Sri. Panduranga Rukmini Temple at Jammanakatti village on that day. He do not know about election campaign being addressed by the accused persons addressing about 200250 public so gathered there. He has been declared as hostile witness by the prosecution. Though, severe crossexamination is directed to this witness, but nothing worth is elicited 16 Spl.CC No.1117/2019 from the mouth of this witness, so as to disbelieve his version given in the examinationinchief.
24. He says that, no document is furnished by him to the police regarding his deputation on election duties. He has not videographed the incident so also has not snapped any photograph. As per the case of the prosecution, he was also one of the member of Flying Squad. But he has not supported the prosecution. Therefore, the evidence of this P.W.3 will not help the case of the prosecution in any manner. Hence, I disbelieve his evidence.
25. P.W.4 Yesu is the complainant in this case. He corroborates the contents of the complaint in material particulars. He says that, he was authorized by the Returning Officer to take action, if there is any violation of election code of conduct promulgated by him. He says that, on receipt of the information on that day, he went to Jammanakatti village and noticed that, these accused 17 Spl.CC No.1117/2019 persons by using Cordless Mic addressed 200250 public gathered in the premises at Sri. Panduranga Rukmini Temple. When they went to the said place, all the people gathered there scattered. Thereafter, he went to Kerur Police station at 4.30 p.m. and lodged complaint as per Ex.P.3.
26. His crossexamination so directed is worth reading. This complainant says that, he has no personal knowledge about the prohibitory order issued by the Returning Officer with regard to the Election Code of Conduct. Further, he has not produced any document to show that, on that day, he went to the said Jammanakatti village. The document is very much available in his office. Further, it is elicited that, he has written his daily routine duties in his work dairy. Why the said documents are not produced before the I.O. is not explained. He says no video was shown to him with regard to the said incident. Further, it is elicited that 18 Spl.CC No.1117/2019 either himself or his superior officer have not written panchanama. He denied other suggestions.
27. It is further elicited in the crossexamination directed by counsel for accused No.2 to 4 that, he cannot say the nature of speech being addressed by the accused persons on that day.
28. On reading the evidence of P.W.4, he being the complainant in this case is not having knowledge about the prohibitory order being promulgated by the Returning Officer. He has not produced any documents about his deputation to the said duties. If such evidence is placed on record by the prosecution, it really requires corroboration.
29. P.W.5 H.A. Havaldar was the ASI at the relevant time and he too corroborates the evidence of P.W.4 in material particulars. He says that, till 1.15 p.m. on that day, these accused persons addressed the public by 19 Spl.CC No.1117/2019 violating the prohibitory order issued by the Returning Officer. According to his evidence, without seeking permission the said election campaign was done by the accused persons.
30. He also has been thoroughly crossexamined by the counsel for accused. He says that, he has not written about his visit to Jammanakatti village on 28.04.2018 in his station house dairy. Jammanakatti village is about 12 kms away from Guledagudda. The public gathered there were not enquired by the I.O. He has not seen the video regarding the said incident. At the scene of occurrence, the I.O. have not conducted any panchanama. He has denied other suggestions.
31. On reading the evidence of P.W.5, it shows that he is not definite about the said incident as per the evidence spoken in the crossexamination. 20
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32. In this case, no independent witnesses have been cited as witness as well as examined by the prosecution. P.W.4 and P.W.5 are the official witnesses. No doubt, the evidence of official witnesses can be accepted and there is no bar as such. But if inconsistent evidence is spoken to by such witnesses, it really requires corroboration.
33. P.W.6 Siddappa Hokrani was the Head Constable, who received the complaint and set the criminal law in motion. He says about receipt of complaint and registered the crime. In the cross examination, he says that, on receipt of the complaint, he has not obtained any permission from the Judicial Magistrate First Class to register criminal case against the accused persons and investigate the same. He has not obtained any document from the said temple authorities who are all the managers of the said temple. He denied other suggestions. According to him, he has 21 Spl.CC No.1117/2019 not completely investigated. But P.W.7 says that, just he verified records and filed charge sheet. Even who has done complete investigation is not made clear from the evidence of P.W.6 and 7. So on reading the evidence of witnesses so examined by the prosecution, no proper procedure have been followed by the I.O. in investigating this case.
34. The learned counsel for accused No.1 to 5 by relying upon the judgment of Hon'ble High Court of Karnataka in Crl.P.No.2645/2019 decided on 24.04.2019 and submits that, in this case, very taking of cognizance is bad in law. According to him, on plain reading of Sec.195(1)(a)(i) of Cr.P.C. it would clearly indicate that offences punishable under Sec.172 to 188 IPC (both inclusive), jurisdictional court would not take cognizance of the offence except on a complaint in writing by a public servant concerned or other public servant to whom he is administratively subordinate. According to 22 Spl.CC No.1117/2019 his submission, if the prosecution is continued against accused persons for the said offences, it would be contrary to Sec.195 of Cr.P.C. In this case also, as rightly submitted by the counsel for accused, no proper procedure have been followed by the prosecution.
35. In the second judgment of Hon'ble High Court of Karnataka in Crl.P.No.101997/2019 decided by Hon'ble High Court of Karnataka, Dharwad Bench, decided on 10.12.2019, it is observed that, Sec.155 of Cr.P.C. mandates that, no police officer shall investigate a non cognizable offence without order of the Magistrate having power to try such case or commit such case for trial. In this case, the offence under the provisions of Religious Institutions (Prevention of Misuse) Act are cognizable offences. The punishment prescribed for the said offence is, it may extend to 5 years and with fine and which may extend to Rs.10,000/. Therefore, as one of the offence is cognizable offence Sec.155 Cr.P.C. has no application. 23
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36. In the 3rd judgment i.e. Crl.P.No.2077/2019 decided by the Hon'ble High Court of Karnataka on 22.04.2019, it is observed by the Hon'ble High Court of Karnataka that, Sec.7 of the Religious Institutions (Prevention of Misuse) Act, 1988, by prosecution was not called for, inasmuch as bare reading of Sec.7 of the Act would clearly disclose that for contravention of Sec.3, 4, 5 and 6 of the Act, it is the manager and every person connected with such Religious Institution who would be liable to be punished with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees.
37. In this case, if the said principle or observation are applied, it is not the case of the prosecution that, these accused persons were the persons incharge of the said Sri. Panduranga Rukmini Temple. In other words connected to Religious institution. Therefore, prosecution against these accused would definitely be contrary to the 24 Spl.CC No.1117/2019 provisions of the said Act. So, therefore, the principles laid down in the aforesaid judgments are aptly applicable to the present facts of the case.
38. On reading the evidence of P.W.4 to 7 and also the principles laid down in the aforesaid judgments, as rightly submitted by the counsel for accused persons, the prosecution case suffers from material particulars. No independent witnesses have been cited in this case. More so, as per the evidence of P.W.4 one Vishwanath, FDA was the person, who gave information about not obtaining permission from the competent office for conducting election campaign. He would have been a material witness, but he has not been cited as witness in this case. It is fatal to the case of the prosecution. More so, as rightly submitted by the counsel for accused persons, the prohibitory order is not produced in this case. It is also fatal to the case of the prosecution. So, therefore, if all these factual features coupled the 25 Spl.CC No.1117/2019 principles laid down in the aforesaid judgments are applied, it can very well stated that, prosecution case suffers from material particulars. The evidence of P.W.4 to 7 would not inspire any confidence in the mind of the court, so as to prove the case of prosecution.
39. More so, in a case of present nature, the prosecution is under obligation to prove:
(a) A public servant has promulgated an order.
(b) The public servant is lawfully empowered to promulgate such order.
(c) Accused knows that by such order he is directed:
(i) to abstain from a certain act, or
(ii) to take certain order with certain property in his possession or under his management.26
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(d) Accused disobeys such direction.
In this case, the aforesaid essential ingredients of the offence under Sec.188 of IPC are missing.
40. Thus, it can very well stated that, prosecution has utterly failed to prove the guilt of accused persons beyond all reasonable doubt. Accordingly, I record my findings on the above points in the Affirmative.
41. Point No.2: In view of my findings on points No.1 and 2 and the reasons stated therein, accused No.1 to 5 are entitled for acquittal Resultantly, I proceed to pass the following order;
ORDER Acting U/Sec.248(1) of Cr.P.C., accused No.1 to 5 are acquitted of the charges under Sec.188 of IPC and Sec.3(a), 6 r/w Sec.7 of Religious Institutions (Prevention of Misuse) Act, 1988.
Their bail bonds stand canceled.
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Spl.CC No.1117/2019 They are set at liberty forthwith.
(Dictated to the Stenographer, transcribed and typed by her, same is corrected by me and then pronounced in the Open Court on this the 27th day of January, 2020) (RAMACHANDRA.D.HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) 28 Spl.CC No.1117/2019 ANNEXURE:
Witnesses examined by the prosecution.
PW1 Venkappa Handi PW2 Hullappa Bommanagi PW3 Manjunath Goudar PW4 Yesu Bengaluru PW5 Hussain Sab Havaldar PW6 Siddappa Hokrani PW7 Basavaraj Koluru
Witnesses examined by the defence/accused. NIL Documents exhibited by the prosecution.
Ex.P.1 Panchanama
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of PW.2
Ex.P.1(c) Signature of P.W.6
Ex.P.2 Signature of PW.3
Ex.P.3 Complaint
Ex.P.3(a) Signature of P.W.4
Ex.P.3(b) Signature of P.W.6
Ex.P.4 FIR
Ex.P.4(a) Signature of P.W.6
Ex.P.5 Order copy showing C.W.1 was on
duty.
Documents exhibited by the defence/accused. NIL List of Material Objects marked by the prosecution: NIL LXXXI ACC & SJ, Bengaluru City (CCH82)