Bangalore District Court
Hagaribommanahalli Ps vs Nemiraj Naik K on 27 February, 2024
1 CC.No.30011/2022
KABC030751522022
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 27th day of February, 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.30011/2022.
(Old CC.No.362/2022)
Complainant: State by the Hagaribommanahalli Police
Station, Hagaribommanahalli Circle,
Vijayanagara.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: 01. Nimeraj Naik K.,
S/o.Late.Kashya Naik, 50 Years,
R/o.18th Ward, Theru Beedi,
Ramanagar, H.B.Halli, Vijayanagara.
02. Ambadi Mahesh,
S/o.Anjinappa, 46 Years,
R/o.NearTirumala Mill & Eshwara
Temple, Kottur Road, H.B.Halli,
Vijayanagara.
03. Jagadeesh M.,
S/o.Pampaiah G.M., 34 Years,
R/o.Principal of Nalanda Coaching,
3rd Ward,Ol, H.B.Halli,
Vijayanagara.
2 CC.No.30011/2022
04. Byati Nagaraja,
S/o.Ramappa, 33 Years,
R/o.1st Ward, Kadlabnal village,
Hagari Bommanahalli, Vijayanagara.
05. Mruthyunjaya Badami,
S/o.C.M.Badami, 51 Years,
R/o.Opposite Harsha Lodge,
Nethaji Road, Ramanagara,
Hagari Bommanahalli, Vijayanagara.
06. Manjunatha V,
S/o.Ganeshappa, 31 Years,
R/o.APMC Compound Road, Military
Bayalu, Kottur Circle, Hagari
Bommanahalli, Vijayanagara.
(By A.1 to 6 Sri.S.B.M., Advocate)
1. Date of commission of offence : 27.12.2021.
2. Date of report of offence : 27.12.2021.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 21.10.2022.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Sri.Jeevan Sab.
5. The date of recording of evidence : 07.02.2023.
6. The date of closing of evidence : 04.01.2024.
7. Offences complained of : U/s.143,147,171(c)
188, R/w.S.149 of
IPC & S.131 & 132
of RP Act.
8. Opinion of the Judge : Accused found
not guilty.
=============
3 CC.No.30011/2022
JUDGMENT
01. That the Police Sub-Inpsector, Hagaribommanahalli Police Station, Hagaribommanahalli Circle, Vijayanagara has filed charge sheet against the Accused No.1 to 6 for the offences punishable under section 143, 147, 171(c) and 188, R/w section 149 of IPC and section 131 and 132 of Representation of People Act, 1950, 1951, 1989, (Herein after referred as the 'R.P. Act').
02. The case of the prosecution in brief is as follows:
On 27.12.2021 at 03-30 p.m., at Government Model Higher Primary School, Ward No.21, Room No.2 established as Polling Station, the Accused No.1 to 6 formed an unlawful assembly with common object of committing the offence and entered the Prohibited Area where white chalk mark was drawn on the Public Road within 100 meters of Polling Station No.21 and tried to attract the voters and influence them in voting Accused No.2 who is contesting for the Election from BJP Party. It is also alleged that the Accused have violated the By - Election Model Code of Conduct and thereby committed the offences punishable under section 143, 147, 171(C) and 188, R/w section 149 of IPC and section 131 and 132 of R.P.Act.4 CC.No.30011/2022
03. On the basis of the complaint of CW-1, the case has been registered under Cr.No.234/2021 against the Accused No.1 to 6 for the offences punishable under section 143, 147, 171(C) and 188, R/w section 149 of IPC and section 131 and 132 of R.P. Act. 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 Persons, 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, plea of the Accused No.1 to 6 is recorded for the above said offences. 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 Fourteen Witnesses as PW- 01 to 14 and got marked 27 documents as Ex.P.01 to Ex.P.27. After closure of the prosecution evidence, the Accused No.1 to 6 were examined under section 313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the 5 CC.No.30011/2022 evidence of the prosecution witnesses. The Accused No.1 to 6 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 27.12.2021 at 03-30 p.m., at Government Model Higher Primary School, Ward No.21, Room No.2 established as Polling Station, the Accused No.1 to 6 formed an unlawful assembly and entered the Prohibited Area with a common object of committing the offence 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 that on the above said date, time and place, the Accused No.1 to 6 being the members of unlawfully assembly with common object of 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 to 6 being the members of unlawfully assembly with a common 6 CC.No.30011/2022 object of committing the offence have tried to attract the voters and influence them in voting Accused No.2 who is contesting for the Election from BJP Party and thereby committed the offence punishable under section 171(C), R/w. section 149 of IPC?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 6 being the members of unlawfully assembly with common object of committing the offence have disobeyed the Promulgation Order of Election Commission and violated the Election Model Code of Conduct and thereby committed the offence punishable under section 188, R/w. section 149 of IPC?
5. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 6 being the members of unlawfully assembly with common object of committing the offence entered in the Prohibited Area and prevented CW-11 to 13 from discharging their Public Duty and thereby committed the offence punishable under section 131 of R.P. Act?
6. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the Accused No.1 to 6 being the members of unlawfully assembly with common object of committing the offence have tress-passed into the restricted area and misconducted with CW-6 to 9 and prevented themselves from discharging their Public Duty and thereby committed the offence punishable under section 132 of R.P. Act?
7. What Order?7 CC.No.30011/2022
08. The findings of this court on the above points are:
Points No.1 to 6 : In the Negative, Point No.7 : As per final order for the following:
REASONS
09. Points No.1 to 6: As these points are interlinked, they are taken up together to avoid repetition of facts and circumstances of the case.
10. In order to bring home the guilt of the Accused Persons, the prosecution has examined the Complainant as PW-1. And, the eye-witnesses are examined as PW-4, 5, 7 to 13. The offences alleged are Section 143 of IPC, which punishes, whoever is a member of an unlawful assembly, Section 147 of IPC, which punishes, the persons for committing the offence of rioting, Section 171(C) of IPC, punishes whoever voluntarily interferes or attempts to interfere with the free exercise of any Electoral Right, Section 188 of IPC, criminalizes any deliberate disobedience of an order that is duly promulgated by a Public Servant empowered by law to do so, Section 131 of R.P. Act, penalizes for disorderly conduct in or near Polling Station and Section 132 of R.P. Act, penalizes for misconduct at the Polling Station. 8 CC.No.30011/2022
11. PW-1 has deposed that on 27-12-2021 at about 04.00 p.m., he got information through a phone call stating that some fight is going on in Ward No.21. Accordingly, he visited the said Ward and when, he reached the spot, he came to know that the Accused No.1 had left the spot. As such, he went inside the Polling Booth and enquired the P.R.O., who was present at the spot and he also informed him that the Accused No.1 came inside the booth and left the spot. He has deposed that later, when he saw the video, it was confirmed that the Accused No.1 came inside the booth and then, left the spot. He has also deposed about drawing of mahazar after he lodged the compliant. The complaint is marked as Ex.P1 and the mahazar is marked as Ex.P2. He has also deposed that he cannot identify the persons who were along with the Accused No.1 on the alleged date of incident.
12. The eye-witnesses who are examined as PW-4, 5, 7 to 13 have also deposed some what in the lines of the evidence given by PW-1. All of them have deposed that the Accused have violated the Election Code of Conduct by entering inside the Polling Booth. PW-4, 5 and 9 have deposed that the Accused No.1 along with his followers entered the Polling Booth and verified 9 CC.No.30011/2022 with the staff members present there, as to how many votes have been cast and then, they have gone outside the booth. They have deposed that they do not know what was the intention of Accused No.1 in coming inside the booth. PW-11 has deposed that the Accused No.1 who came inside the booth and told the voters who were present in the booth to cast their votes in favour of Accused No.2 and he informed about the same to CW-6. PW-12 and 13 have deposed that when, they went to the spot, they saw the Accused No.1 and his followers and the Ex - MLA Bhima Naika and his followers coming out of the Compound of the Polling Booth and they were fighting with each other.
13. On analyzing the over all evidence of the alleged eye-
witnesses, it goes to show that their evidence is contradicting with each other. But, none of them have deposed that the Accused have formed unlawful assembly with an common object of committing the offences as alleged by the prosecution.
14. The Video-Grapher who has allegedly shot the video of the incident is examined as PW-7. He has deposed about the video recording done by him at the spot. He has deposed about downloading the same and burning it to a C.D and handing over 10 CC.No.30011/2022 the same to the I.O. He has deposed that he has not giving any Certificate under Section 65-B of the Indian Evidence Act. But, the I.O. obtained his signature on a document for having handing over the C.D to the I.O. The C.D and the Certificate is marked as Ex.P5 and 13.
15. PW-6 is the spot mahazar witness and he has deposed about the spot mahazar drawn by the police in their presence. Lrd. Sr. APP has given up the evidence of CW-3 in order to avoid repetition of evidence of PW-6. The C.D is seized by the I.O by drawing a mahazar in the presence of CW-4 and 5. They are examined as PW-2 and 3. They have deposed that the police have seized the C.D in their presence and the police have also played the C.D in installing the same to the laptop which was in the Police Station. The said C.D is marked as Ex.P5. They have deposed that in the video, they saw the present and the Ex-MLA and their followers going inside the Polling Booth and then, coming outside and discussing near the Compound of the Polling Booth.
16. Finally, the I.O is examined as PW-14 who has also received the complaint and registered the case against the Accused and then, investigated the crime and filed the charge 11 CC.No.30011/2022 sheet against the Accused Persons. In the cross-examination, it was elicited from his mouth that 5 more Cases are registered against these Accused Persons and others for the offences alleged to have occurred on the very same day at different booths. She has deposed that in all the 6 Cases, prior to the respective Complainants of those cases lodged the complaint, she had knowledge about the occurrence of the respective incidents, but, she had not know that the crimes are going to be registered. She has deposed that she had not published to the general public about the prohibitory orders passed by the Election Officer. She has also deposed that there was no written intimation to the public near the 100 meters line that was drawn at the spot, restraining the public entering the boarder line. It is admitted by her that she has not investigated as to which voters were influenced by the Accused Persons. It is also admitted that she has not recorded the statement of any of the voters of the said booth, where the alleged incident occurred.
17. From the overall evidence of the prosecution witnesses, it goes to show that their evidence about the alleged incident is contradicting with each other which touches the root of the case and the same is fatal to the case of the prosecution. Though, one 12 CC.No.30011/2022 of the witness has deposed that the Accused had come to the spot to attract the voters or to influence the voters, the Complainant or the other materials witnesses have not deposed about the same. PW-3 is the spot mahazar witness and he has deposed about the spot mahazar drawn by the police in their presence. In view of the contradictory evidence of the material witnesses the evidence of the spot mahazar witness is of no use for the prosecution to prove the guilt of the Accused persons.
18. Section 171-C of the Indian Penal Code, states that anyone who voluntarily interferes or attempts to interfere with someone's free exercise of their Electoral Right commits the offence of undue influence at an Election, which includes threatening or inducing a Candidate or voter in any way that affects their voting freedom. But, none of the voters of the said Polling Booth is cited as witness by the I.O. Even, out of the witnesses examied the material witnesses have not deposed that the Accused have committed the offence of undue influence at the Election. As such, the prosecution has failed to prove that the Accused have committed the said offences.
13 CC.No.30011/2022
19. Another offence alleged against the Accused Persons is that they have committed the offence punishable under section 188 of IPC, which reads as follows:
"Section.188: Disobedience to order duly promulgated by public servant.-Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both: and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation.- It is not necessary that the offender should intend to produce harm, or 14 CC.No.30011/2022 contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm".
20. Section 188 of I.P.C., is divided into Three Parts and an explanation. In the First Part, it deals with disobedience of an order promulgated by a Public Servant lawfully empowered to promulgate such order fully knowing that such order has been promulgated. It does not lay down any penal provision. The Second and Third Part deals with the consequences of such disobedience. In Bharat Raut Vs. State, it is held therein by the Hon'ble Patna High Court that under Section 188 of IPC., "mere disobedience of an order made by a public servant lawfully is not punishable and that the disobedience must lead to certain consequences narrated in second and third paragraphs of section 188 of IPC".
21. It is also so held in Bachuram Kar Vs State, wherein, it is observed as follows:
"Mere disobedience under Section 188 of I PC., of an order promulgated by a public 15 CC.No.30011/2022 servant is not in itself an offence unless it entails one or other of the consequences which the section itself mentions".
22. To sustain an indictment for an offence under any penal provision in law, knowledge of the Accused has always been considered pivotal. However, to invoke the rigor of section 188 of IPC., the "knowledge" of the Accused, of the order promulgated by the Public Servant becomes rather mandatory and a pre - requisite, failing which any indictment under the same is bad in law. A person booked under section 188 of IPC "must" have actual knowledge of the public servant's order requiring him to do or abstain from doing some act. Actual proof of the same has to be produced on record and in the absence of the same, no presumption of having acquired or gained knowledge of the said order can be raised against the Accused.
23. In the case on hand, it is no one's case that any danger to human life is caused or if any one is hurt by the alleged seeking of votes done by the Accused. In the decision between DN Ramaiah Vs. DR Aswathanraryanshetty & Ors, the Hon'ble High Court of Karnataka went on to hold that for any disobedience to attract penal action under Para No.2 of section 188, the 16 CC.No.30011/2022 obstruction, injury or annoyance to "any person" would not be sufficient and the same had to be proved to have been inflicted upon a person "lawfully employed".
[ 24. In view of the aforesaid decisions and interpretations given to the provision by various courts in the country, it would be trite to state that mere disobedience of an order passed by a public servant would not attract the rigors of section 188 of IPC. The onus is upon the complainant to mandatorily establish that the accused had "knowledge" of the order promulgated by the public servant, while disobeying it and that such disobedience had caused/tended to cause obstruction, annoyance or an injury or risk of obstruction, annoyance or injury to a person "lawfully employed", and not just to any person, party to a dispute, Government Official etc. Consequently, failure to meet even one of the ingredients would go to the very root of the case. Here in the case on hand the none of the ingredients are met out by the prosecution. On the other hand, at the cost of repetition, it is to be stated that it is crystal clear that no obstruction, annoyance, or injury or risk of obstruction, annoyance or injury to any person lawfully employed as mentioned in the 2nd Part of Section 188 of the Code is caused, 17 CC.No.30011/2022 or there is nothing on record to show that the alleged act has caused or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray as mentioned in the 3 rd Part of section 188 of the Code.
25. The prosecution is relying upon the C.D., which is produced and marked as Ex.P5 to prove that the Accused have entered the Polling Booth and influenced the voters to cast their vote in favour Accused No.2 in violation of the Code of Conduct. To prove the same, Certificate under section 65-B(4) of the Evidence Act, is mandatory, which is reads as follows:
"Section.65-B: Admissibility of Electronic Records.-
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;18 CC.No.30011/2022
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
26. In the case on hand, the prosecution has examined PW- 7, who is said to have issued the Certificate under the above referred provision of law. And, the said document is marked as Ex.P13. His evidence is that he has not issued that Certificate, but, the Police have prepared the same and he sign the said document. At this stage itself, it is necessary to peruse Ex.P13, which is the Certificate under section 65-B of the Evidence Act. The above excerpted provision of law mandates certain particulars to be contained in the Certificate so issued. But, the same is not at all finding place in Ex.P13. Issuance of the Certificate under this provision is not just an empty formality to issue the same as one wishes to issue. As such, based on the discussion made above 19 CC.No.30011/2022 i.e., with regard to the discrepancies in the oral evidence and also for not complying with the mandatory requirements in Ex.P13, the C.D which is marked as Ex.P5 cannot be looked into for any purpose.
27. The prosecution has also alleged that the Accused have committed the offence under Section 131 of the R.P. Act, which punishes for disorderly conduct in or near Polling Stations and Section 132 of the R.P.Act, punishes for misconduct at the Polling Station. As discussed supra, there is no evidence on record to show that the Accused have committed the offences as alleged by the prosecution. The oral and documentary evidence available on record is not suffice to hold that the Accused Persons are guilty of the offences alleged against them. As such, without any further discussion, it can be safely said that the prosecution has failed to prove the case as projected. The oral and documentary evidence placed before this court is not suffice to convict the Accused persons for the alleged offences. As such, based on the discussions made above, the Accused No.1 to 6 cannot be convicted for the alleged offences. Accordingly, the Point No.1 to 6 is answered in the NEGATIVE.
20 CC.No.30011/2022
28. Point No.7:- In view of my findings on the above Point No.1 to 6, the Accused No.1 to 6 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 to 6 are acquitted of the offences punishable under section 143, 147, 171(c) and 188 R/w section 149 of IPC and section 131 and 132 of Representation of People Act, 1950, 1951, 1989.
The bail bonds and surety bonds of the Accused No.1 to 6 stand canceled, 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 February - 2024). Digitally signed
PREETH by PREETH J
Date:
J (Preeth.2024.03.13
J)
13:21:36 +0530
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) 21 CC.No.30011/2022 ANNEXURES Witnesses examined for the Prosecution:
PW.01 : Jeevan Sab, PW.02 : Y.M.Rajendra, PW.03 : T.M.Channabasaiah, PW.04 : H.D.Nijalingana Gouda, PW.05 : K.Halesha, PW.06 : Mahesha B., PW.07 : Raghu Naik, PW.08 : H.M.Lokanatha, PW.09 : V.B.Jagadish, PW.10 : D.Mahantesh, PW.11 : Manjunatha Mudugade, PW.12 : Noor Mahammad, PW.13 : Virupakshi Gaddi, PW.14 : Smt.P.Sarala.
Documents exhibited for the Prosecution:
Ex.P.01 : Complaint,
Ex.P.01(a) : Signature of PW.01,
Ex.P.01(b) : Signature of PW.14,
Ex.P.02 : Mahazar,
Ex.P.02(a) : Signature of PW.01,
Ex.P.02(b) : Signature of PW.06,
Ex.P.02(c) : Signature of PW.14,
Ex.P.03 : Photo,
Ex.P.04 : Photo,
Ex.P.05 : C.D.,
Ex.P.06 : Notice,
Ex.P.06(a) : Signature of PW.02,
Ex.P.07 : Seizure Mahazar,
Ex.P.07(a) : Signature of PW.02,
Ex.P.07(b) : Signature of PW.03,
Ex.P.07(c) : Signature of PW.07,
Ex.P.07(d) : Signature of PW.13,
Ex.P.07(e) : Signature of PW.14,
Ex.P.08 : Photo,
Ex.P.09 : Notice,
Ex.P.09(a) : Signature of PW.03,
Ex.P.10 : Statement of PW.04,
22 CC.No.30011/2022
Ex.P.11 : Statement of PW.05,
Ex.P.12 : Notice,
Ex.P.13 : Certificate u/s.65-B,
Ex.P.13(a) : Signature of PW.07,
Ex.P.14 : Notice,
Ex.P.14(a) : Signature of PW.07,
Ex.P.15 : Statement of PW.09,
Ex.P.16 : Certificate u/s.65-B,
Ex.P.16(a) : Signature of PW.13,
Ex.P.17 : FIR,
Ex.P.17(a) : Signature of PW.14,
Ex.P.18 : Requisition Letter dated:01-01-2022,
Ex.P.19 : Requisition Letter dated:01-01-2022,
Ex.P.20 : Requisition Letter dated:01-01-2022
to the Thasildar,
Ex.P.21 : Requisition Letter dated:01-01-2022
to the D.C., & District Election Commission, Ex.P.22 : Requisition Letter dated:01-01-2022 to the C.P.I., H.B.Halli, Ex.P.23 : Orders of Election Commission documents, Ex.P.24 : Sketch, Ex.P.25 : Reply dated:05-01-2022.
Ex.P.26 : List of Center of Polling Booth of Public Election-2021 Ex.P.27 : Appointment list of Election duty Staff. Material object exhibited for the Prosecution:-
- NIL -
Witnesses examined for the defence Accused:-
- NIL -
Documents exhibited for the defence Accused:- Digitally signed
- NIL - PREETH Date:
by PREETH J
J 2024.03.13
13:21:58
+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) 23 CC.No.30011/2022