Karnataka High Court
Prakash Guddappa Katenahalli vs The State Of Karnataka on 7 September, 2022
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CRL.RP No. 2049 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 2049 OF 2013 (397)
BETWEEN:
PRAKASH GUDDAPPA KATENAHALLI
AGE: 36 YEARS, OCC:BUSINESS,
R/O.KHURDKODIHALLI, NOW AT BYADAGI
...PETITIONER
(BY SRI.J.BASAVARAJ, ADV.)
AND:
THE STATE OF KARNATAKA
PRESENTED BY ITS,STATE PUBLIC PROSECUTOR,
(BYADAGI P.S.) HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT: DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. SEEKING SET
ASIDE THE IMPUGNED JUDGMENT DATED 31.12.2012 IN CRL.
APPEAL NO.28/2007 PASSED BY THE FAST TRACK JUDGE,
RANEBENNUR, CONFIRMING THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 24.05.2007 IN C.C. NO.148/2005
PASSED BY THE CIVIL JUDGE (JR. DN.) & JMFC, BYADAGI, BY
ALLOWING THE REVISION PETITION, CONSEQUENTLY ACQUIT THE
PETITIONER/ACCUSED IN THE INTEREST OF JUSTICE.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 2049 of 2013
ORDER
This criminal revision petition is filed under Section 397 read with Section 401 of Cr.P.C. seeking to set aside the judgment dated 31.12.2012 in Criminal Appeal No.28/2007 passed by the Presiding Officer, Fast Track Court, Ranebennur confirming the judgment of conviction and order of sentence dated 24.05.2007 in C.C. No.148/2005 passed by the Civil Judge (Jr. Dn.) and JMFC, Byadgi by allowing this revision petition consequently acquit the accused/petitioner.
2. The rank of the parties are referred to as per their status before the trial Court.
3. The brief facts of the prosecution is that on 01.03.2005 at 10:00 p.m. in room No.1 at Kurdkodihalli village, which comes under the Mallur Village group panchayat, the accused - petitioner obstructed the public servant who were discharging their duties and has torn 14 invalid ballets, thereby committed offences punishable under Section 353 of IPC and Section 136 of the -3- CRL.RP No. 2049 of 2013 Representation of the People Act, 1951. After filing the charge sheet, cognizance was taken by the learned Magistrate for the alleged commission of offences and case was registered in C.C. No.148/2005. The accused appeared before the Court and pleaded not guilty and claimed to be tried. To prove the case of the prosecution, in all 11 witnesses were examined as PWs.1 to 11, the documents got marked as Exs.P1 to P6 and 27 torn pieces of invalid votes marked as MOs.1 to 27. On closure of prosecution side evidence, the accused was questioned under Section 313 of Cr.P.C. The accused has totally denied the evidence appeared against him, but he did not choose to lead any defence evidence on his behalf. On hearing the arguments on both sides, the trial Court has convicted the accused for the commission of offences punishable under Section 353 of IPC and Section 136 of the Representation of the People Act, 1951 and sentenced SI for six months on each offence and in default of fine of Rs.1,000/- on each offence. In default to undergo SI for one month on each offence.
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4. Being aggrieved by this judgment and order of sentence, the petitioner had preferred appeal before the Presiding Officer, Fast Track Court, Ranebennur in Criminal Appeal No.28/2007. The appeal came to be dismissed. As against this, the revision petitioner has filed this petition.
5. The learned counsel appearing on behalf of the revision petitioner submitted that the prosecution has failed to place the materials to attract the offence under Section 353 of IPC and also Section 136 of the Representation of the People Act, 1951, only on the basis of the sole interested testimony of official witness, the tribunal has convicted the accused. The independent witnesses have not been examined by the prosecution. The accused has not prevented or obstructed any officials to discharge their official duties. Both the Courts have not property appreciated the evidence on record in proper perspective manner. On all these grounds, he sought for allowing this revision petition.
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6. Alternatively, the learned counsel for the petitioners has submitted that in the event if this Court has come to the conclusion that the impugned judgments passed by both the Courts are in accordance with law, then this Court can extend the benefit of Probation of Offenders Act, 1958, as both the Courts have not assigned any reasons for non-compliance of Sections 3 and 4 of the Probation of Offenders Act, 1958 and Section 360 of Cr.P.C. Hence, on this ground, he sought for modification of sentence by extending the Probation of Offenders Act, 1958, as the alleged offences are punishable only with two years imprisonment or fine or with both. To substantiate his arguments, he relied on the decision in the cases of B.S.Narayanan vs. State of A.P. reported in 1987 SCC (Cri) 791, A.Gnanasikhamony vs. Palukal Panchayat reported in AIR 1970 Madras 360 and Chandreshwar Sharma vs. State of Bihar reported in (2000) 9 SCC
245.
7. As against this, the learned Additional SPP submitted his arguments that both the Courts have properly -6- CRL.RP No. 2049 of 2013 appreciated the material evidence and the prosecution witnesses PWs.1, 4, 5, 7 and 10 with documentary evidence and passed the impugned judgment. The accused/petitioner being responsible citizen, who has contested to panchayath election has obstructed the public servant to discharge his official duties and torn out 14 invalid ballets, which offence is serious in nature. Considering the facts and circumstances, the trial Court has convicted the accused for the commission of alleged offences and imposed sentence which is just and proper to the facts of the case. There is no enmity between the complainant and the accused at any point of time prior to this alleged incident. Hence, he sought for dismissal of this petition and also sought for not to extend the provisions of Sections 3 and 4 of Probation of Offenders Act, 1958.
8. I have carefully gone through the evidence placed by the prosecution. PW1-Mallappa Gangappa Kolkar, PW5- Imamhusen Modinsab Mulla and PW7-Mahadevappa Puttappa Anaveri, the Village Accountant and the PW10- Mahammad Saifulla Tahasildar, Byadagi have clearly -7- CRL.RP No. 2049 of 2013 deposed in their evidence that on the alleged date of incident, the accused have torn 14 invalid ballets. PW11- Devaray, PSI has deposed as to the part of the investigation and submitted the charge sheet against the accused for the alleged commission of offence. PW2- Eshwarappa Rudrappa Banakar and PW3-Shankarappa Gangappa Hediyal said to be the attest to the panchanama at Ex.P6 have not supported to the case of the prosecution. PW6-Ningappa Dasappa Dundannanavar, PW8-Hanumanthappa Guddappa Billannanavar, PW9- Laxman Hanumantappa Kuragund said to be the eyewitnesses to the alleged incident, have not supported the case of the prosecution. On the basis of the evidence of PWs.1, 4, 5, 7 and 10 and the documentary evidence, both the Courts have convicted the accused for the alleged commission of offence.
9. The learned counsel appearing on behalf of the petitioner has voluntarily submitted his arguments that mere torn of 14 invalid ballets is not sufficient to come to the conclusion that the accused has obstructed/prevented -8- CRL.RP No. 2049 of 2013 the public servant from discharging from public duties and absolutely there is no evidence to show that the accused assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant. Hence, the accused is not liable for conviction of the offence punishable under Section 353 of IPC and Section 136 of Representation of People Act, 1951. It is alleged by the prosecution that the accused has torn out 14 invalid ballet votes which are maintained by the public servant. The accused ought not to have torn the invalid ballets which are maintained by the public servant. The torn of 14 invalid ballets is given under the provisions of Section 353 of IPC. Therefore, the presumption advanced on behalf of the accused counsel cannot be accepted. With regard to the offence punishable under -9- CRL.RP No. 2049 of 2013 Section 136 of Representation of People Act, 1951 is concerned,
136. Other offences and penalties therefor (1) a person shall be guilty of an electoral offence if any election he-
(a) xxx
(b) xxx
(c) fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelop used in connection with voting by postal ballot;
10. In the instant case, the accused has torn 14 invalid ballets which come under the provisions of Section 136(1)(c) of the Representation of People Act, 1951. Both the Courts have properly appreciated the evidence on record and come to the conclusion that accused has committed the offences punishable under Section 353 of IPC and Section 136 of Representation of People Act, 1951. Accordingly, there are no grounds to interfere with the impugned judgment passed by both the Courts in respect of conviction of the accused for commission of
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CRL.RP No. 2049 of 2013 offence punishable under Section 353 of IPC and Section 136 of Representation of People Act, 1951.
11. Now the question for my consideration is whether the provisions of Probation of Offenders Act, 1958 may be extended to the accused or not.
12. In this regard, the learned counsel for the accused has relied on the decisions in the cases of B.S.Narayanan vs. State of A.P. reported in 1987 SCC (Cri) 791, A.Gnanasikhamony vs. Palukal Panchayat reported in AIR 1970 Madras 360 and Chandreshwar Sharma vs. State of Bihar reported in (2000) 9 SCC 245.
13. On perusal of the judgments of both the Courts, they have not assigned any reasons for not extending the benefit of Sections 3 and 4 of Probation of Offenders Act, 1958.
14. From the perusal of the judgment of the learned Magistrate as well the Court of appeal, it transpires that no reasons were assigned for extending the benefit of Section
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CRL.RP No. 2049 of 2013 360 and Sections 3 and 4 of Probation of Offenders Act, 1958.
15. The offence punishable under Section 353 of IPC is punishable with imprisonment either description for a term which may extend to two years or with fine or both. This offence was bailable in nature at the time of commission of alleged offence. It is submitted by the learned counsel for the petitioner that the accused has not convicted in any case prior to this case. Petitioner is serving as President of VSS Bank Byadagi since 2001-2006. Further submitted that the appellant is vice president of Kurubar Samaj and he contested for the Mallur Gram Panchayat during 2005 and now he is working as Member of Gram Panchayath and had goodwill in the society. Now the appellant is working as Director of TAPMC Byadagi, Director of VSS Bank Byadagi and nominated for the post of Director for PLD Bank. The petitioner is recognized personality in the society. Hence, sought for release the accused on probation of offenders Act, 1958.
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CRL.RP No. 2049 of 2013
16. The prosecution has not placed any material to show that after this alleged incident, petitioner has not involved in any other offences.
17. Considering the facts and circumstances of this case and keeping in mind the decision relied on by the learned counsel for the petitioner, I am of the opinion that it is just and proper to modify the sentence imposed by the trial Court by extending the provisions of Section 4 of Probation of Offenders Act,1958. Accordingly, I proceed to pass the following:
ORDER The Criminal Revision petition is partly allowed.
The judgment of conviction and order of sentence passed by the Civil Judge (Jr.Dn.) and JMFC., Byadagi in CC No.148/2005 dated 24.05.2007 and judgment passed by the Fast Track Judge, Ranebennur in Crl. Appeal
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CRL.RP No. 2049 of 2013
No.28/2007 dated 31.12.2012 are upheld and confirmed.
With regard to sentence passed by the trial Court is modified. Petitioner/accused is ordered to be released on good conduct instead of sentencing him and he should enter into bond for a period of one year.
A bond for a year shall be executed before the Civil Judge (Jr.Dn.) & JMFC., Byadagi within three weeks from today.
Revision petition is disposed of accordingly. Send back trial Court records, forthwith along with copy of this order.
Sd/-
JUDGE RSH - para 1 to 13 HMB - para 14 to end List No.: 1 Sl No.: 2