Bangalore District Court
State By Bellary Rural Police Station vs Sanna Pakkirappa on 26 April, 2022
1 CC.No.30797/21
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 26th day of April, 2022.
: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.30797/2021.
(Old.Spl.CC.No.638/2021)
Complainant: State by Bellary Rural Police Station,
Bellary Rural Circle, Bellary District.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: Sanna Pakkirappa,
55 Years, BJP MLA ,
Candidate 93-Bellary Rural
Constituency, Fort,
Bellary District.
(By Sri.N.S.R., Advocate)
1. Date of commission of offence : 07.05.2018.
2. Date of report of offence : 08.05.2018.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 08.07.2021.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : B.H.Dadapeer.
2 CC.No.30797/21
5. The date of recording of evidence : 29.11.2021.
6. The date of closing of evidence : 29.03.2022.
7. Offences complained of : U/s.171(H) of IPC
& 127(A) of R.P Act.
8. Opinion of the Judge : Accused found not
Guilty
=============
JUDGMENT
1. That the Police Sub-Inspector of Bellary Rural Station, Bellary Rural Circle, Bellary District has filed charge sheet against the accused for the offences punishable under section 171(H) of IPC and 127(A) of R.P Act.
2. The case of the prosecution in brief is as follows:
On 07-05-2018 at about 02.00 p.m., CW-1 received credible information that the a road show rally will be held at Sanganakall Village from 04.15 p.m., to 04.45 p.m., by the BJP Party. Accordingly, CW-1 went to the spot situated at near Mariyamma Temple of Sanganakallu Village and found that the accused conducted rood show rally on the main road in front of Mariyamma Temple from 06.10 p.m., to 06.25 p.m., in violation of the missioner granted to him by the Election Officer. As per 3 CC.No.30797/21 the permission, the accused was permitted to use only one flag during the rally and was also prohibited from bursting crackers, but, the accused used 15 flags and burst crackers on the road and also used vehicles which were not permitted to be used in the rally. Thus, the accused has violated the Election Model Code of conduct and thereby committed the offences punishable under section 171(H) of IPC and section 127(A) of R.P Act.
3. On the basis of the complaint of CW-1, case has been registered under Cr.No. 202/2018 against the accused for the offences punishable under section 171(H) of IPC and section 127(A) of R.P Act. Thereafter, on completion of the investigation charge sheet has been filed against the accused. On receipt of charge sheet, the court took cognizance of the said offences.
4. On appearance of the accused, he was 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, heard before charge and framed charges and read 4 CC.No.30797/21 over to the accused for the said offences. He has not pleaded guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused persons, the prosecution has examined all the Five witnesses as PW-01 to 05 and got marked 07 documents as Ex.P.01 to Ex.P.07. After closure of the prosecution evidence, the accused was examined under section 313 of Cr.P.C., so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The accused has denied his involvement in the crime and did not choose to lead any defence evidence on his behalf.
6. I have heard the arguments addressed by the learned Sr. Assistant Public Prosecutor and the learned counsel for the accused.
7. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 07-05-2018 the accused conducted road show and rally at Sanganakall Village from 06.10 p.m., to 06.25 p.m., in violation of the permission granted to him 5 CC.No.30797/21 by the Election Officer and violated the Election Model Code of conduct and thereby committed the offences punishable under section 171(H) of IPC and section 127(A) of R.P Act.
2. What Order?
8. The findings of this court on the above points are:
Point No.1 : In the Negative, Point No.2 : As per final order for the following:
REASONS
9. Point No.1: The criminal law was set into motion on the basis of first information given by CW-1-Dadapeer. Ex.P.02 is the first information given by him in which he has narrated about the alleged incident. CW-1 is examined as PW-2 and in his evidence, he has deposed about the contents of Ex.P.2. He has deposed that when he went to the scene of occurrence along with CW-4. He has deposed that the accused had permission to conduct road show rally from 04.15 p.m., to 04.45 p.m. He has deposed that film actor Sudeep also participated in the rally. He has deposed that the accused was permitted to make use of only one flag, but he has used 15 flags. He has deposed that though there was prohibition for bursting crackers, 6 CC.No.30797/21 the accused has busted the same. And the road show was conducted from 06.10 p.m., to 06.25 p.m. He has also used more vehicles in the rally than which was permitted. He has deposed that on the next day, he watched the video and then lodged the complaint in the police station. He has also deposed about drawing of mahazar at the spot in the presence of the panchas. The mahazar is marked as Ex.P.1. The permission order issued by the Election Officer is marked as Ex.P.4.
10. According to CW-1/PW-2, CW-4 had accompanied him on that day. But, he is reported to be in COMA. The prosecution has cited CW-5, who is said to be the eye-witness to the alleged incident and he is examined as PW-3. In his chief-examination, he has deposed that in the Year - 2018, the Election Officer had appointed him as an video grapher to the Flying Squad Team headed by CW-1. Accordingly, he had accompanied CW-1 and other officers to Moka Village and there he recoded the video. He has deposed that other than that place he had not recorded the video in any other place when he was in the team of CW-1. He has deposed that he has not given nay statement before the police.
7 CC.No.30797/21
11. At the request of learned Sr. Assistant Public Prosecutor, PW-3 is treated as hostile and permission was accorded to cross-examine him, but nothing worthy has been elicited from his mouth to prove the case of the prosecution in respect of the alleged incident i.e., the road show rally conducted by the accused in violation of the permission granted to him by the Election Officer. PW-3 has denied all the suggestions put to him by Lrd. Sr. APP. His statement is marked as Ex.P.3.
12. The prosecution has cited CW-2 and 3 as the spot mahazar witnesses. Amongst them CW-2 is reported to be dead. CW-3 is examined as PW-1 who in his evidence has deposed that two years back he had been to the Taluk Office at Bellary Taluk for his personnel work. The police men from the nearby police station took him to the police station from Taluk Office and obtained his signature on one document. He has deposed that the police have never conducted any mahazar in his presence. He has identified his signature in Ex.P.1 spot mahazar. He has deposed that he do not know why the police obtained his signature on the said document. 8 CC.No.30797/21
13. At the request of learned Sr. Assistant Public Prosecutor, PW-1 is treated as hostile and permission was accorded to cross-examine him, but nothing worthy has been elicited from his mouth to prove the case of the prosecution in respect of the alleged mahazar said to be drawn at the scene of occurrence. PW-1 has denied all the suggestions put to him by Lrd. Sr. APP.
14. The police officer who received the complaint from CW-1 and registered the case is reported to be bedridden. As such, his evidence is dropped. The prosecution has cited two witnesses as CW-7 and 8 who are the I.Os'. They are examined as PW-4 and 5 accordingly. Both of them have deposed in respect of the investigation conducted by them. And the role of CW-6 registering the case is adduced from the mouth of CW-8 who is the I.O. the FIR is marked as Ex.P.7.
15. Now, on analyzing the overall evidence of the prosecution, it is clear that except PW-2, there is no independent eye-witnesses to the alleged incident. PW-4 and 5 are the Investigating Officers, but not the eye-witnesses to the 9 CC.No.30797/21 alleged road show. Though, PW-1 has deposed that he has witnessed the alleged incident and also the video of the alleged incident. But, no C.D is produced by the prosecution with regard to the alleged incident at the alleged date time and place. Admittedly, Ex.P.4 which the perversion order issued by the Election Officer, goes to show that the BJP Party was allowed to conduct road show on the alleged date from 04.15 p.m., to 04.45 p.m., at Sanganakall Village with certain conditions/prohibitions. But, to prove tht the accused has violated the conditions, expect the oral evidence of PW-1 there is nothing on record.
16. In the complaint which is marked as Ex.P.2 and also in oral evidence of PW-2 has deposed that he has seen the video. If really video of the alleged incident was recorded at the spot and if PW-2 has also seen the same, then what prevented the I.O to seize the same or what prevented PW-2 to copy the same to a C.D and handed over to the police along with the complaint. All these aspects are not at all explained in the compliant nor in the oral evidence before this court. Further, the prosecution has not made available of any independent 10 CC.No.30797/21 witnesses who were at the post in the rally. Further, more CW-5 who is examined as PW-3 who is alleged to be the video grapher in the team of CW-1, has turned hostile to the case of the prosecution which is discussed supra. He has deposed that he had videographed the rally only at Moka Village and not at Bellary Taluk. When such being the case, which video did CW-1 watch before lodging the compliant is silent. As such, the very incident alleged by the prosecution has become doubtful. Without there being any cogent or probable evidence, it is not safe to rely only upon the evidence of PW-2 who is the complainant and the I.Os' who are examined as PW-4 and 5. The accused cannot be convicted for the alleged offences based on the oral evidence of PW-2, 4 and 5 only.
17. Now, coming to the legal aspects in respect of the offence under section 171(H) of IPC and section 127(A) of R.P Act is concerned. Admittedly, the said offences are non - cognizable offences. As such, it is the bounden duty of the Investigating Officer or the person who receives the complaint to follow the mandatory provisions of section 155 of Cr.P.C. When the report is received by the S.H.O. of Police Station in 11 CC.No.30797/21 respect of commission of non - cognizable offence, the S.H.O. has to follow the mandatory procedure prescribed under section 155(1) and 155(2) of Cr.P.C. Therefore, it is necessary to refer the said provision which is as hereunder:
"Section-155:- Information as to non - cognizable cases and investigation 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 be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non - cognizable case without the order of a 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 respect of the investigation (except the power to arrest without warrant) as an officer in 12 CC.No.30797/21 charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non -
cognizable."
18. Therefore, when the S.H.O. of the Police Station receives a report regarding commission of non - cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under section 155(1) of Cr.P.C. Thereafter, the Jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of section 155(2) of Cr.P.C., stated supra. Unless, the Police Officer is permitted by an order of the Jurisdictional Magistrate to investigate the non - cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet. In the case on hand, the said procedure is not followed. As such, for lack of oral and documentary evidence and also 13 CC.No.30797/21 for non-compliance of procedural aspects, the accused cannot be convicted for the alleged offence under section 171(H) of IPC and Section 127(A) of R.P Act.
19. Coming to the offence alleged against the petitioner is concerned, he is sought to be prosecuted under section 171(H) of IPC. The Section reads as under:
"Section 171H: Illegal payments in connection with an election: -
Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses 14 CC.No.30797/21 were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
20. The facts narrated in the complaint do not attract the ingredients of the aforesaid section. As per the said section, only the person who has been dealing with the election materials or the advertisement is liable for prosecution. The candidate himself unless he is dealing with said material cannot be prosecuted under section 171(H) of IPC. There are no such allegations. As a result, there is no basis for the prosecution of the petitioner. There is also no material to show the involvement of the petitioner in the alleged offence.
21. The charge sheet is also filed under section 127(A) of the Act which reads as under:-
"127A. Restrictions on the printing of pamphlets, posters, etc.-
(1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.15 CC.No.30797/21
(2) No person shall print or cause to be printed any election pamphlet or poster-
(a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and
(b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document,-
(i) where it is printed in the capital of the State, to the Chief Electoral Officer;
and
(ii) in any other case, to the district magistrate of the district in which it is printed.
(3) For the purposes of this section,-
(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression "printer" shall be construed accordingly; and
(b) "election pamphlet or poster" means any printed pamphlet, hand-bill or other document distributed for the purpose of 16 CC.No.30797/21 promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand- bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.
(4) Any person who contravenes any of the provisions of sub-section (1) or sub-
section (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both."
22. Even by cursory reference, the said Section is not applicable to the facts of the case. The allegations in the charge sheet is that the accused conducted road show rally in violation of the permission granted to him, by using 15 flags instead of one flag, by cracking crackers even though it is prohibited and conducted the rally from 06.10 p.m., to 06.25 p.m., which is not the timings allotted in permission. The said fact, even if accepted in its entirety would not make any offence either under section 171(H) of IPC or section 127(A) of the 17 CC.No.30797/21 Representation of the People Act, 1951. There is no allegation against the accused that he has used or printed any pamphlets or posters and distributed to the voters. As such, based on the discussions made above, Point No.1 is answered in the NEGATIVE.
23. Point No.2:- In view of my findings on the above Point No.1, the accused is entitled to be acquitted by giving benefit of doubt and also for procedural lapses. Hence I proceed to pass the following:
ORDER Acting under section 255(1) of Cr.P.C., the accused is acquitted for the offences punishable under section 171(H) of IPC and section 127(A) of R.P Act.
The bail bond and surety bond of the accused shall stand cancelled.
(Typed by me directly on the computer, corrected and then pronounced by th me in open court on this the 26 day April - 2022).
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 18 CC.No.30797/21 ANNEXURES Witnesses examined for the Prosecution:
PW.1 : B.Mareppa, PW.2 : B.H.Dadapeer, PW.3 : Lokesh, PW.4 : T.M.Sharada, PW.5 : Chitaranjan P.
Documents exhibited for the Prosecution:
Ex.P.01 : Spot mahazar,
Ex.P.01(a) : Sig. of PW.1,
Ex.P.01(b) : Sig. of PW.2,
Ex.P.01(c) : Sig. of PW.4,
Ex.P.02 : Complaint,
Ex.P.02(a) : Sig. of PW.2,
Ex.P.03 : Letter dated:31.03.2018,
Ex.P.04 : Permission letter
dated:06.05.2018,
Ex.P.05 : Statements of witnesses,
Ex.P.06 : Spot Sketch,
Ex.P.06(a) : Sig. of PW.4,
Ex.P.07 : FIR.
Material object exhibited for the Prosecution: -
- NIL -
Witnesses examined for the defence Accused:
- NIL -
Documents exhibited for the defence Accused:-
- NIL -
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 19 CC.No.30797/21