Karnataka High Court
Shri. Vijay Shivaji More, vs The State Of Karnataka, on 24 November, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2020
VISHAL N
PATTIHAL
BEFORE
Digitally
signed by
VISHAL N
PATTIHAL
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
Date:
2020.12.15
15:38:10
+0530
CRIMINAL REVISION PETITION NO.2310 OF 2011
BETWEEN:
SHRI VIJAY SHIVAJI MORE,
AGE : 40 YEARS, OCC : PRIVATE SERVICE,
R/O.H.NO.303/21, PATIL MAL,
BELGAUM.
... PETITIONER
(BY SHRI SHREEVATSA SURESH HEGDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH KHADE BAZAR POLICE,
BY PUBLIC PROSECUTOR,
BELGAUM.
... RESPONDENT
(BY SHRI RAMESH B.CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYED
THAT THE JUDGMENT DATED 20.09.2011 PASSED BY THE PRL.
SESSIONS JUDGE, BELGAUM IN CRL.APPEAL NO.84/2010
CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 04.05.2010 PASSED IN C.C.NO.1124/2009 BY THE
J.M.F.C.-III COURT, BELGAUM MAY BE SET ASIDE BY CALLING
FOR THE RECORDS AND THE REVISION PETITIONER MAY BE
ACQUITTED, IN THE ENDS OF PROMOTING JUSTICE.
2
THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused aggrieved by the Judgment of conviction and order of sentence passed by the JMFC-III Court, Belgaum in Criminal Case No.1124/ 2009 dated 04.05.2010 sentencing the accused to undergo simple imprisonment for a period of six months for the offence punishable under Section 504 of IPC; and to undergo simple imprisonment for one month for the offence punishable under Section 506 of IPC and to pay a fine of Rs.1,000/- for the offence punishable under Section 448 of IPC, in default of payment of fine amount, to undergo simple imprisonment for a period of two months, which came to be confirmed by the Principal Sessions Judge, Belgaum in Criminal Appeal No.84/2010 on 20.09.2011.
2. For the sake of convenience, the parties herein shall be referred to as per their status and rank before the trial Court.
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3. Brief facts leading to filing of this revision petition is as under :
It is the case of prosecution that on 13.07.2009 at 5.00 p.m. accused went to Belgaum Vyapari Multipurpose Co- operative Society, Kelkarbag, Belgaum, being enraged due to his removal from employment in the society, illegally trespassed into the said office, picked up quarrel with P.Ws.3 and 4, abused them in filthy words, and when complainant came to the office of society, accused abused him also in filthy words and gave him life threat. Hence, accused was charged for the above said offences. After taking cognizance of the matter, accused appeared and obtained bail, pleaded not guilty and claimed to be tried, accordingly he was tried.
4. In order to prove the guilt of accused, prosecution examined P.Ws.1 to 7 and got marked Exs.P.1 to 10. On closure of the prosecution evidence, the statement of accused was recorded under Section 313 of Cr.P.C., wherein, accused denied all the incriminating evidence against him. 4 However, accused did not lead any evidence on his behalf and neither did he produce any documents.
5. After going through the entire materials both oral and documentary, the trial Court came to conclusion that prosecution has established the guilt of accused beyond reasonable doubt and accordingly convicted the accused for the offences punishable under Sections 448, 504 and 506 of IPC.
6. Aggrieved by the said conviction order, accused preferred an appeal before the Principal Sessions Judge, Belgaum in Criminal Appeal No.84/2010. After re- appreciating and reevaluating the material evidence, both oral and documentary, the appellate Court came to a conclusion that accused had no business to go to the said society and to abuse the President and other society members and staff. Accordingly, held that Judgment of conviction and order of sentence passed by trial Court was just and proper and hence did not interfere with the same. 5
7. Aggrieved by the said concurrent findings of Courts below, accused is before this Court challenging the legality, correctness and propriety of Judgments of both the Courts.
8. I have heard the learned counsel Sri.Shreevatsa Suresh Hegde for petitioner and Sri.Ramesh B.Chigari, learned H.C.G.P. for respondent-State.
9. It is vehemently contended by learned counsel for petitioner that Judgments passed by both courts below are contrary to the material facts and evidence on record and hence the same requires to be set aside. He further contends that prima-facie the offences alleged do not attract the necessary ingredients for convicting the accused. Learned counsel further contends that the allegations made in complaint are vague and absurd and even ex-facie would not attract the provisions for which the accused is charged. The learned counsel further contends that the provision of Section 448 of IPC would not be application to the facts of case, as there was forceful entry by accused and more so, it was not a private place, but it was a public place. Learned 6 counsel further contends that Section 506 of IPC would not be applicable to the facts of present case for the reason that there is no allegation or proof that the complainant or any member of the society were alarmed by the alleged threats by accused. Learned counsel further contends that even if the complaint is taken on its face value, the ingredients required to prove Section 504 of IPC is not made available and hence, there is no criminal intimidation by accused.
10. He further submits that the trial Court and the appellate Court have ignored these basic fundamental aspects of criminal jurisprudence and have mechanically convicted the accused. Learned counsel further contends that the trial Court, as well as the appellate Court, have not applied their mind and have passed orders which are erroneous in law and facts and circumstances of the present case. He further contends that non-application of mind by both the courts below has caused grave miscarriage of justice to accused. On these submissions, learned counsel for 7 petitioner seeks to allow the petition and set aside the order passed by Courts below.
11. Per contra, learned H.C.G.P. contends that the Judgment of conviction and order of sentence passed by trial Court and confirmation by appellate Court is in accordance with law and based on materials placed before the Court. There is no illegality or perversity by the Courts below in passing the impugned order. Learned counsel further contends that the Courts below have appreciated the evidence on record and materials placed before the Court and after analyzing the same, have came to a rightful conclusion to convict the accused. Learned H.C.G.P. further contends that there was no business for the accused to enter into the premises of co-operative society office, as he was terminated from the employment. The fact that he has barged into the society office proves the intent of accused to cause injury to the complainant and other office bearers of the society. He further contends that there is no worthwhile evidence on behalf of accused, which has disproved the case 8 of prosecution. Therefore, he contends that the accused has not made out any ground to show before this Court any illegality or perversity committed by Courts below. On these submissions, he seeks to dismiss the petition and confirm the orders of Courts below.
12. Having heard the learned counsel for petitioner and learned HCGP, the point that arises for consideration before this Court is, Whether the accused has made out any ground to show before this Court that there is illegality and perversity in convicting him for the aforesaid offences by Courts below.
13. It is not in dispute that accused was working as pigmy collector in the Belgaum Vyapari Multipurpose Co- operative Society, Kelkarbag, Belgaum. It is also not in dispute that accused was removed from his employment on 06.06.2008. On 13.07.2009, accused barged into the premises of society office and abused the members of society 9 present in the office, namely Paresh Gopal Shinde and Dhanaraj Narayan Kavilkar, i.e., P.Ws.3 and 4. It is the case of prosecution that accused used filthy language and abusive words against P.Ws.3 and 4 and on being informed of the same, P.W.1 Premanath Nayak the President of society, came to the office to pacify the accused to resolve the issue. It is stated that accused abused P.W.1 also in filthy language and intimidated the office bearers P.Ws.1, 3, and 4, thereby committed offences punishable under Sections 448, 504 and 506 of IPC. It is seen from the complaint that the accused has used the filthy words and vulgar language against the Chairman and other members of society which are narrated in the complaint and same is extracted below:
"¨ÉÆøÀr ªÀÄPÀ̽gÁ £À£ÀߣÀÄß «£ÁPÁgÀt PÉ®¸À¢AzÀ vÉUÉzÀÄ ºÁQ¢j ¸ÀÆ¼É ªÀÄPÀ̽gÁ ¤ªÀÄä£Àß R¯Á¸À ªÀiÁqÀÄvÉÛãÉ. "
14. It is also noticed that due to act of accused suddenly barging into the office premises of society. P.Ws.3 and 4 called President of the society, who rushed to office of the society and despite consoling the accused he continued 10 to abuse even the President of society, while the society members consoled and sent him out of the society office, during this time accused threatened the members of society that he would kill them. These are some of the factual aspects of the matter, wherein the accused being disturbed from removal from service, went to the office premises of society without seeking permission, forced his entry and used the above stated filthy words and vulgar language and threatened the office bearers with dire consequences.
15. On the basis of such act, a complaint came to be filed for the aforesaid offences against accused. After giving sufficient opportunity of fair trial, accused was tried and based on the material evidence and corroboration of the evidence of prosecution witnesses, accused came to be convicted for the aforesaid offences. It is the main attack of accused that there is a delay in filing the FIR as the complaint is filed on the following day. It is also the case of accused that there is no serious threat or any intention of such act of threat given by accused. It is the argument of 11 learned counsel for accused that though the accused has gone to the office premises of co-operative society, which is a public place and not a private place, the provision invoked under Section 448 of IPC would not be applicable to the facts of case. Secondly, it is the argument of learned counsel for accused that the utterances of abusive words and vulgar language are not intended to literally mean the same and nothing has caused any hurt or injury to reputation of complainant as well as other office bearers. But, it is due to frustration in view of his removal from the employment. It is also argued that there is no real threat of assault or intimidation to cause any injury in the form of physical nature to the complainant and other office bearers of society and it may be merely a sudden out worst of the accused which would not show any intention and therefore, there is no mens rea in committing of such offences stated above.
16. It is seen that the trial Court has appreciated the evidence of all the witnesses and the material produced before the Court and so also the Appellate Court has re- 12 appreciated and re-evaluated the material evidence placed on record and have arrived at a conclusion that the prosecution has made out a case to prove the guilt of accused and has therefore, convicted accused for the aforesaid offences. On careful perusal of the material on record, it has to be seen whether there is any illegality or perversity committed by both the Court in passing the impugned order.
17. In view of this it is essential to see Section 448 of IPC, which reads as follows:
"Punishment for house-trespass.--
Whoever commits house-tres-pass shall be
punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
So also, the provisions of Section 504 and 506 of IPC, which are as follows:
"504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally 13 insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
506. Punishment for criminal intimidation.--
Whoever commits, the offence of criminal
intimidation shall be punished with
imprison-ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison-ment of either description for a term which may extend to seven years, or with fine, or with both."
18. In order to substantiate his arguments, learned counsel for accused has relied on the following judgments: 14
(1) VIKRAM JOHAR vs STATE OF UTTAR PRADESH AND ANOTHER reported in AIR 2019 SC 2109;
(2) MANIK TANEJA AND ANOTHER vs STATE OF
KARNATAKA AND ANOTHER reported in 2015
CRI.L.J. 1483;
(3) FIONA SHRIKHANDE vs STATE OF MAHARASHTRA AND ANOTHER reported in AIR 2014 SC 957; (4) ANIL MANOHAR WALKE vs PRAMOD UTTAMRAO TIDKE in Crl. Application No.1554 of 2010 - DD 2nd August 2011 of Bombay High Court;
(5) HAJEE ABDUL REHMAN AND OTHERS vs GULAM NABI reported in 1964 Cri.L.J. 40;
(6) SARASWATHI AND ANOTHER vs STATE reported in 2002 Cri.L.J. 1420.
The sum and substance of the judgments relied on by the learned counsel for accused is that to attract the provisions of Section 504 and 506 of IPC, 'the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.' 15
19. In the case of VIKRAM JOHAR, referred to supra, the Hon'ble Apex Court has held that 'for proving the offence under Section 506 IPC, the prosecution must prove, (i) That the accused threatened some person; (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; (iii) That he did so with intent to cause alarm to that person; Investigating Officer to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.' It has also noted that ingredients of Section 504 IPC comprises mainly, (a) intentional insult (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence.
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20. The ratio laid down by the Hon'ble Apex Court in the aforesaid judgments are necessarily to be followed in dealing with the provisions of Sections 448, 504 and 506 of IPC, which is not disputed by the learned Government Pleader. The question on hand before this Court is whether the trial Court and Appellate Court have followed these necessary requirements of the provisions and the ingredients in convicting the accused.
21. The offence under Section 448 IPC reveals the punishment to house tress pass. In order to pass conviction under Section 448 IPC, it must be found that intention of the accused was to commit an offence or to insult or annoy the complainant. There must be an unlawful entry and there must be proof of one or other intention mentioned in Section 441 IPC. It is necessary to state here that knowledge and intention are essential behavior of the mind and cannot be demonstrated as physical object.
22. In the present case on hand though the trial Court as well as Appellate Court on careful analysis of the 17 evidence and the documents produced, have arrived at a conclusion that the evidence on record clearly establish the commission of offence punishable under Section 448 IPC and also the commission of offence under Sections 504 and 506 of IPC. It is also necessary to note that the provisions of house tress pass under Section 448 of IPC, could not necessarily mean that tress pass should be in a private place and it may not be in an Office. Therefore, even if a person tress pass into the Office premises the provisions of section 448 IPC could be attracted. In the present case on hand the accused having tress passed into the Office premises of the Co-Operative Society is liable for the offence punishable under Section 448 IPC. Therefore, considering the entire material both oral and documentary, the trial Court and the Appellate Court have rightfully have come to a conclusion in convicting the accused for the aforesaid offences.
23. Learned counsel for accused has not been able to pin point any material irregularity, illegality or perversity committed by the Courts below in convicting the accused for 18 the aforesaid offences. Therefore, I do not find any reason to interfere with the orders passed by both the Courts below in convicting the accused for the aforesaid offences. Nevertheless, awarding of sentence is a matter which has to be considered based on the mitigating circumstances and other relevant circumstances in suitably awarding punishment in proportion to the offence. Therefore, there has to be a proportionality in awarding sentence to the offence committed. In my opinion, same requires modification as even the provisions invoked herein, namely, Sections 504 and 506 IPC are offences where punishment could be awarded either by way of imprisonment or with fine or with both. Therefore, the same requires interference and certain modifications. Accordingly, I proceed to pass the following order;
ORDER
1. Petition is partly allowed;
2. Judgment of conviction passed by the by the JMFC-III, Belagavi in Criminal Case No.1124/2009 dated 19 04.05.2010 and confirmed by the Principal Sessions Judge, Belagavi in Criminal Appeal No.84/2010 on 20.09.2011, are hereby upheld.;
3. Sentence imposed on the accused is modified in the following manner:
(i) Accused is sentenced to pay a fine in a sum of Rs.5,000/- for the offence punishable under Section 504 IPC, in default of payment of fine amount, he shall undergo simple imprisonment for a period of three months;
(ii) Accused is sentenced to pay a fine in a sum of Rs.5,000/- for the offence punishable under Section 506 IPC, in default of payment of fine amount, he shall undergo simple imprisonment for a period of three months
4. Sentence with regard to offence punishable under Section 448 IPC is not disturbed and the accused shall pay a fine of Rs.1,000/- for the offence punishable 20 under Section 448 IPC, in default of payment of fine amount, he shall undergo simple imprisonment for a period of two months.
Sd/-
JUDGE Ckk/VK