Bangalore District Court
State By Keshwapur Police Station vs Manoj on 10 February, 2023
1 CC.No.32637/22
KABC030799422022
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 10th day of February, 2023.
: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.32637/2022.
(Old.CC.No.852/2018)
Complainant: State by Keshwapur Police Station,
Hubli North Sub - Division Circle,
Hubballi - Dharwad District.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: 1. Manoj,
S/o.Sripati Vasudev,
49 Years, R/o.Sangli
Taluk, Sangli District,
Maharashtra State.
2. G.S.Patil, MLA,
R/o. Ron, Ron Taluk,
Gadag District.
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3. Shivarama,
S/o.Thippanna Vannala,
R/o. Gadag Betageri,
Balaji Road, Rajapootagalli
Betageri.
(By Sri.S.M., Advocate)
1. Date of commission of offence : 12.04.2018.
2. Date of report of offence : 12.04.2018.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 18.11.2022.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Sri.Krishna Kullur.
5. The date of recording of evidence : 03.03.2022.
6. The date of closing of evidence : 14.12.2022.
7. Offences complained of : U/s.171(E) of IPC.
8. Opinion of the Judge : Accused found not
guilty.
=============
JUDGMENT
01. That the Police Sub-Inspector of Keshwapur Police Station, Hubli North Sub-Division Circle, Hubballi - Dharwad District has filed charge sheet against the accused No.1 to 3 for the offence punishable under section 171(E) of IPC. 3 CC.No.32637/22
02. The case of the prosecution in brief is as follows:
On 12-04-2018 at about 04.30 p.m., near D.D.M Church, situated at Gadag Road, the accused No.1 being the driver of Ashok Lay-land Goods Vehicle bearing Registration No.MH-10-AQ-8159 was transporting 1500 T-Shirts bearing the name and portrait of the accused No.2 and 1500 Track Pants from Sangli to Gadag, through accused No.3 on behalf of accused No.2 to distribute the same to the voters so as to attract their votes in the upcoming general election and thus, the accused No.1 to 3 have violated the Election Model Code of Conduct and thereby committed the offence punishable under section 171(E) of IPC.
03. On the basis of the complaint of CW-1, case has been registered under Cr.No.29/2018 against the accused No.1 to 3 for the offence punishable under section 171(E) of IPC. Thereafter, the Investigating Officer visited the spot and the spot mahazar was drawn, recorded the statements of the witnesses and on completion of the investigation charge sheet has been 4 CC.No.32637/22 filed against the accused No.1 to 3. On receipt of charge sheet, the court was pleased to take cognizance of the said offence.
04. On appearance of the accused No.1 to 3, 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 was read over and explained to the accused persons in the language known to them for the offence punishable under section 171(E) of IPC. He has 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 Eight Witnesses as PW-01 to 08 and got marked 11 documents as Ex.P.01 to Ex.P.11. After closure of the prosecution evidence, the accused No.1 to 3 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 to 3 5 CC.No.32637/22 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:-
Point No.1: Whether the prosecution proves beyond all reasonable doubt that on 12-04- 2018 at about 04.30 p.m., near D.D.M Church, situated at Gadag Road, the accused No.1 being the driver of Ashok Lay- land Goods Vehicle bearing Registration No. MH-10-AQ-8159 was transporting 1500 T- Shirts bearing the name and portrait of the accused No.2 and 1500 Track Pants from Sangli to Gadag, through accused No.3 on behalf of accused No.2 to distribute the same to the voters so as to attract their votes in the upcoming general election, violated the Election Model Code of Conduct and thereby committed the offence punishable under section 171(E) of IPC?
Point No.2: What Order?6 CC.No.32637/22
08. 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
09. Point No.1: The criminal law was set into motion on the basis of First Information given by CW-1-Krishna Kullur. Ex.P.01 is the First Information given by him in which, he has narrated that on 12-04-2018 at about 04.30 p.m., near D.D.M Church, situated at Gadag Road, the accused No.1 being the driver of the Ashok Lay-land Goods Vehicle, transported 1500 T- Shirts and 1500 Track Pants in vehicle bearing Registration No. MH-10-AQ-8159 through accused No.3 on behalf of accused No.2 who is the Candidate for the upcoming General Election, so as to distribute the said T-Shirts and Track Pants to the voters to attract their votes on behalf of accused No.2. He has also narrated that the T-Shirts were bearing the name and portrait of the accused No.2.
7 CC.No.32637/22
10. CW-01 is examined as PW-01 and in his evidence, he has deposed about the contents of Ex.P.01. He has also deposed about seizure of the T-Shirts and Track Pants and also about drawing of mahazar at the spot and also about drawing mahazar with regard to seizure of the property. And, he has deposed that he has lodged the complaint. And, the same is marked as Ex.P1. The photo taken, when the properties were seized is marked as Ex.P2. The seizure mahazar is marked as Ex.P3.
11. The prosecution has also examined CW-02 and 03, who are said to be the spot mahazar witnesses as PW-02 and
03. The spot mahazar is marked as Ex.P.04. In their chief - examination, they have deposed that the police have not drawn any mahazar in their presence. They have identified their signatures on Ex.P.04. They have deposed that they do not know the contents of those documents.
12. At the request of learned Sr. Assistant Public Prosecutor, both PW-02 and PW-03 were treated as hostile and 8 CC.No.32637/22 permission was accorded to cross-examine them, but nothing worthy has been elicited from their mouth to prove the case of the prosecution in respect of Ex.P.04. Both the witnesses have denied all the suggestions put to them by Lrd. Sr. APP.
13. The prosecution has also examined CW-04 and 05, who are said to be the seizure mahazar witnesses as PW-04 and 08. In the chief-examination of PW-04, he has deposed that the police have seized one T-Shirt in his presence and CW-5 was also along with him. He has identified his signature on Ex.P.03. He has deposed that he do not know anything more than that.
14. At the request of learned Sr. Assistant Public Prosecutor, PW-4 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 Ex.P.03.
9 CC.No.32637/22
15. PW-8 in his chief - examination has supported the case of the prosecution. But, in the cross - examination, he has deposed that the police have obtained their signature on one document in the spot and took a photo and then, again called them to the Police Station and asked them to sign on another document.
16. CW-9 and 10 who were deputed to the check post situated on Gadag Road, for election duty on he alleged date, are examined as PW-6 and 7. Both are the Official Witnesses. They have deposed that the accused No.1 being the driver was transporting T-Shirts and Track Pants in the vehicle bearing Registration No.MH-10-AQ-8159. They have also deposed that on enquiry with the accused No.1 told them that he is transporting school uniform. They have deposed that the same is taken to the Police Station. They have deposed that later, they came to know that the said T-Shirts and Track Pants were brought to distribute to the voters and thereby to canvass for the election.
10 CC.No.32637/22
17. The I.O is examined as PW-5. He has deposed about receiving the complaint from CW-1 and registering the case. He has also deposed about drawing of the mahazars and seizure of the vehicle, T-Shirts and Track Pants. He has deposed about recording of statement of the witnesses and about filing of the charge sheet.
18. From the over all oral and documentary evidence placed before this court, it goes to show that charge sheet is filed against accused No.1, because he is the driver-cum-owner of the vehicle in which the T-Shirts and Track Pants were transported. And, against accused No.2, because his name and photo was found on the T-Shirts and against accused No.3, because he is the owner of the said T-Shirts and Track Pants.
19. Now, on analyzing the overall evidence of the prosecution, though the material witnesses have supported the case of the prosecution, if the accused must be punished for the alleged offence under section 171(E) of IPC, firstly the 11 CC.No.32637/22 prosecution must prove that the accused have given gratification to any person with the object of inducing him or any other persons to exercise any electoral right or of rewarding any persons for having exercised any such right or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right. Only, if this is proved, then it amounts to the offence of Bribery which is punishable under section 171(E) of IPC.
20. Here, in the case on hand, CW-1 has lodged the complaint on the surmises that the accused No.1 has brought the Track Pants and T-Shirts in his vehicle on behalf of accused No.2 through accused No.3, to gratify the voters and seek their votes in favour of accused No.2. And, evidence of the witnesses are also to that effect only. On the other hand, the accused No.3 has got the seized T-Shirts and Track Pants released by the order of this court and the accused No.1 has got the vehicle released in his favour and has taken the same to their custody, 12 CC.No.32637/22 wherein, accused No.3 has produced documents to show that he has purchased those for his textiles and it appears that he got the same transported in the vehicle of the accused No.1. Such being the case, when, the accused No.2 has not distributed any Track Pants or T-Shirts to the voters nor did he seek any votes from the voters, this court on surmises cannot accept the contention of the prosecution that the accused persons brought the T-Shirts and Track Pants to bribe the voters of the Gadag Constituency. Moreover, if one sees this case, in a practical manner no politician will even think of bribing the voters by giving them T-Shirts and Track Pants. The oral evidence and materials on record is not suffice to constitute the alleged offence.
21. Now, coming to the legal aspect of offence under section 171(E) of IPC., is concerned. Admittedly, the said offence is a non - cognizable offence. 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 13 CC.No.32637/22 Cr.P.C. When, the report is received by the S.H.O. of Police Station in respect of commission of non - cognizable offence, the S.H.O. has to follow the mandatory procedure prescribed under section 155(1) and section 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
14 CC.No.32637/22
of the investigation (except the power to
arrest without warrant) as an officer in
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".
22. 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 15 CC.No.32637/22 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 for non - compliance of procedural aspects, the accused cannot be convicted for the alleged offence under section 171(E) of IPC. Based on the discussions made above, the 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 are 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 No.1 to 3 are acquitted for the offence punishable under section 171(E) of IPC.
The bail bond and surety bond of the accused No.1 to 3 shall stand cancelled.
16 CC.No.32637/22The Properties reported in P.F.No.28/2018, dated:13-04- 2018 i.e., vehicle which are released in favour of accused No.1 and P.F.No28/2018, dated:12-04-2018, i.e.,1500 T-Shirts and 1500 Track Pants, which are released in favour of accused No.3 is made absolute after the appeal period.
(Typed by me directly on the computer, corrected and then pronounced by me in open court on this the 10th day of February - 2023).
(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) ANNEXURES Witnesses examined for the Prosecution:
PW.1 : Krishna Kullur,
PW.2 : Rustum,
PW.3 : Paunti,
PW.4 : Alavin,
PW.5 : Jayashree S. Chalavadi,
PW.6 : Malatesha,
PW.7 : Nagappa,
PW.8 : Akheel.
17 CC.No.32637/22
Documents exhibited for the Prosecution:
Ex.P.01 : Complaint, Ex.P.01(a) : Sig. of PW.1, Ex.P.02 : Photo, Ex.P.03 : Panchanama, Ex.P.03(a) : Sig. of PW.1, Ex.P.03(b) : Sig. of PW.4, Ex.P.03(c) : Sig. of PW.5, Ex.P.03(d) : Sig. of PW.8, Ex.P.04 : Spot Panchanama, Ex.P.04(a) : Sig. of PW.2, Ex.P.04(b) : Sig. of PW.3, Ex.P.05 : FIR, Ex.P.06 : Panchanama of Release, Ex.P.07 : Photo, Ex.P.08 : Photo, Ex.P.09 : Panchanama of Release, Ex.P.10 : Photo, Ex.P.11 : Photo.
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 filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 18 CC.No.32637/22