Bangalore District Court
State By Brucepet vs Sri Srinivas Mothkar.T on 25 February, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH82)
Dated: This the 25th day of February, 2020
Spl. CC No. 1252/2019
: Present :
Sri RAMACHANDRA.D.HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Complainant : State by Brucepet
Police Station,
Bellary District, Bellary.
(represented by Public
Prosecutor)
V/s
Accused: 1. Sri Srinivas Mothkar.T
Aged about 45 years,
16th cross, Gurukottureswara
Colony, Talur Road,
Renuka Nagar
Bellary, KARNATAKA.
2. Somashekhar Reddy.G
S/o. Late Changareddy
Aged about 52 years
R/a. H.No.08, Ashok Nagara
Havambavi, Siruguppa Road
2
Spl.CC No.1252/2019
Bellary
Karnataka.
3. Bhaskar Kurehatti
Aged about 44 years
R/at 1st cross, Siruguppa road
Kurihatti, Ballari, Karnataka.
Permanently R/at
1st cross, Siruguppa Road
Kurihatti, Ballari
KARNATAKA.
4. Somashekar R
S/o. Thipperudra Gowda
Age 29 years
Presently R/at. 1st ward,
Sanjeevarayana Kote, Ballari
Taluk, KARNATAKA.
5. Govindarajulu
S/o. Doreswamy
A/a 42 years
Councillor, City Corporation,
R/o. Opp. Ganesh Temp,
Radio Park, Cowlbazar, Ballari,
Karnataka.
6. Veeresh Gowda.H
S/o. Late Narasimha Reddy
Age 48 years
Presently R/at.
Near Veerabhadra Temple
Sindavala village
Ballari Tq.
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Spl.CC No.1252/2019
Date of offence 12012018 to 15012018
Date of report of offence 22012018
Name of the complainant Dr.Hanumanthappa
Date of commencement of 21012020
recording of evidence
Date of closing of 04022020
evidence
Offences complained of U/s 3 of Karnataka Open Place
(Prevention and Disfigurement)
Act, 1951 and 1981.
Opinion of the Judge Accused found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri . R.P.C
Advocate for accused
Nos.1 to 6
JUDGMENT
Accused Nos.1 to 6 have been charge sheeted by the Sub Inspector of Police, Brucepet Police Station, Ballari, for the offences punishable u/s 3 of the Karnataka Open Place (Prevention of Disfigurement) Act, 1981.
2. The brief and relevant facts leading to the case of the prosecution are as under: 4 Spl.CC No.1252/2019 That one Sri. Dr.Hanumanthappa S/o. Hanumappa being the Health Officer of Ballari Mahanagara Palike filed a complaint before Police SubInspector of Brucepet Police Station on 22012018 alleging that, in the Ballari Town, in between 6 a.m, on 2012018 to 5012018 BJP Parivarthana Yatra was arranged by the BJP Party Workers by name Srinivas Mothkar, being the member of City Corporation, Ballari, G.Somashekar Reddy, the then former MLA of Ballari, Sri.Bhaskar Kurehatti, Ballari, Sri.R.SomashekarPresident of Yuva Morcha, Govindarajulu Member of Mahanagara Palike, Ballari, Sri. Veereshagowda, the former President of APMC - Ballari, who are accused in this case. It is alleged in the complaint that, these accused persons have unauthorizedly displayed the banners, advertisements and posters in the Ballari Town in front of New bus Stand Divider, Joladha Rashi Dhoddanagowda Rangamandira etc., 5 Spl.CC No.1252/2019
3. It is further alleged that, because of the unauthorized displaying of the posters and banners by the accused persons, notices came to be issued to accused persons on 4012018, being served on the accused persons. For these notices, accused have not submitted any reply. As no replies are submitted, therefore this complainant filed a complaint before the PSI of Brucepet Police Station, Ballari as per Ex.P1 i.e, before PW7 Rajarathnam (retired), the then Assistant SubInspector of Brucepet Police Station.
4. This PW7 received the said complaint at 2.30 p.m, on 22012018 as per Ex.P1. Registered the same in crime No.11/2018 and set the criminal law into motion. Prepared the FIR as per Ex.P19.
5. On the same day itself, he went to the scene of occurrence at about 3.30 p.m, but could not get any witnesses there. Thereafter, on 23012018, at about 6 Spl.CC No.1252/2019 5.15 p.m he went to the scene of occurrence and conducted spot mahazar as per Ex.P18 in between 4.00 to 5.00 p.m, in the presence of panchas at the divider situated in front of New KSRTC Bus Stand, aforesaid Rangamandira, also at Shaadi Mahal, prepared the scene of occurrence eyesketch as per Ex.P21.
6. This PW7 recorded the statement of witnesses by name Jaganath, Kotresh on the same day. Complainant appeared before him in the Police Station and produced the photographs marked as per Ex.P9 to P16. He recorded the further statement of the complainant. So also C.D was produced by the complainant. He recorded the statement of Gopalaswamy.
7. On 22022018 itself, he arrested accused persons by name Srinivas Mothkar, Bhaskar, Veeresh Gowda and Somashekar Reddy and released them on bail. He received the notices from the complainant marked at 7 Spl.CC No.1252/2019 Ex.P2 to P7. It was told to him that, accused did not pay the fine amount. Therefore, a complaint is filed at a belated stage.
8. After completion of the investigation, the Investigating Officer has filed the charge sheet against the accused persons before the First Additional Civil Judge and JMFC, Ballari.
9. The learned First Additional Civil Judge and JMFC, Ballari, took the cognizance of the offence and secured the presence of accused before the said court. All the accused were enlarged on bail by the said court. The case was posted for recording plea.
10. A detailed order came to be passed by the said court on 31102019 that, in view of the establishment of this court to deal with the criminal cases relating to MLA's and MP's, the said entire records of this case are 8 Spl.CC No.1252/2019 transmitted to this court. After transmission of the records, this case is renumbered as above.
11. Before this court also, the presence of accused Nos.1 to 6 is secured. Copies of the police papers are furnished to the accused persons as contemplated U/s 207 of Cr.P.C.
12. Thereafter, substance of the accusation u/s 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 framed, read over and explained to the accused in Kannada in the Language known to them. They pleaded not guilty and claim to be tried.
13. To substantiate the case made out against the accused persons, prosecution examined in all 6 witnesses from PWs.1 to 6 and got marked Exs.P1 to P 21 with respective signatures thereon.
14. After closure of the prosecution evidence, accused Nos.1 to 6 are examined U/s 313 of Cr.P.C, so as to 9 Spl.CC No.1252/2019 enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence on their behalf.
15. Heard the arguments of Public Prosecutor for State and learned counsel for the accused at length. Meticulously, perused the records.
16. The points that would arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, accused Nos.1 to 6 from 6 a.m, on 02.01.2018 to 5012018 at Divider of Mothi Circle in front of Ballari Town Bus Stand and surrounding areas so also up to Shaadi Mahal divider from Rangamandira Cross and surrounding areas in public places found affixed the advertisements, posters, banners illegally on account of BJP Parivarthana Yatra 10 Spl.CC No.1252/2019 without written permission from the Ballari Mahanagara Palike being the local authority having jurisdiction over such area and inspite of issue of notice, they have not given any reply and thereby committed the offence punishable u/s 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981?
2. What Order or Sentence?
17. My answer to the above points are as under;
Point No.1: In the Negative Point No.2: As per the final order, for the following REASONS
18. Point No.1: In a case of present nature, the prosecution is under an obligation to prove its case beyond all reasonable doubt. So, also, the prosecution has to prove the area in which the alleged banners, posters, advertisements have been fixed by the accused 11 Spl.CC No.1252/2019 persons is a notified area by the Government of Karnataka. Now, let me analyse the evidence, to understand or to know that, whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt.
19. PW1 in this case is the complainant, who has filed the complaint as per Ex.P1. He corroborates the contents of the complaint in his evidence on oath. He identifies Exs.P2 to P7 notices, Ex.P8 is the outward register copy, so also identifies the photographs as per Exs.P9 to P16 and DVD as per Ex.P17. According to his evidence, he did spot inspection and at that time Cws.4 to 6 were very much present.
20. It is elicited in the crossexamination that, he does not know that, when these notices Ex.Ps3 to P7 have been received by the accused persons. He deposed ignorance before the court about issuance and receipt of notices by the accused persons. According to his 12 Spl.CC No.1252/2019 evidence, immediately after issuance of the notices, it was expected by the accused persons to remove the said advertisements but they have not removed. He says that, there is a mention in Ex.P8 about sending of notice to accused No.4. The said offence has taken place in between 2012018 and 5012018 as per the complaint allegations. But a complaint came to be filed on 2201 2018 before the police Station. The delay is stated by PW1, stating that, as the notice so issued were not complied with by the accused persons, therefore, there is delay.
21. According to his evidence, he has not mentioned the time of inspection in the complaint. Even, he says that, at that time, there was also a Parivarthana Yatra being held by Congress Party, as written in Ex.P17. According to him, all were the temporary advertisements. This PW1 speaks with regard to the displaying of banners, posters at the scene of occurrence 13 Spl.CC No.1252/2019 but he never says that, this Ballari Town is a notified Town as per notification issued by Government of Karnataka under the aforesaid Karnataka Open Places (Prevention of Disfigurement) Act, 1981.
22. PW2 Shanthamurthy, PW3 T.Yeshwanth Kumar are the panchas to the scene of occurrence but they have been turned hostile. Nothing worth is elicited from the mouth of these witnesses, so as to disbelieve their version given in the Examinationinchief. Therefore, when these panchas to the scene of occurrence have been turned hostile, no evidentiary value can be attached to the evidence of these witnesses. In all criminal cases, panchas are the authors of panchanama. If, they do not support the case of the prosecution, then it can be said that, panchanama is not duly proved in accordance with law. Thus, in this case spot panchanama is not duly proved in accordance with law. 14
Spl.CC No.1252/2019
23. PW4 Jagannath Kulkarni is the senior Health Inspector, Ballari Corporation. He says that, from 2012018 to 5012018 unauthorizedly the advertisement banners were displayed at Ballari Town, Mothi Circle near New Bus Stand from Rangamandira to Shadhi Mahal. No permission was granted by the Corporation. He identifies the said pictures or banners as per Ex.P9 - P16. According to him, when inspection was done, himself, PW1 and CWs5 to 6 were very much present, he denies other suggestion. According to his crossexamination, he has not said that, these accused persons are responsible for displaying the banners, poster advertisements. Thus, the evidence of PW4 suffers from material particulars. When such an evidence is placed on record, it really requires corroboration.
24. PW5 Kumaraswamy K.N is the Junior Health Officer, Bellary Mahanagara Palike (Corporation). He 15 Spl.CC No.1252/2019 says that, there was BJP Parivarthana Rally at Bellary Town. He says about the display of advertisements, banners, posters etc., According to him, they were unauthorized banners, posters etc., but says that he is ignorant whether the permission was obtained by the persons responsible in putting such banners etc. He has given statement before the police. He has partly turned hostile. He has been crossexamined by learned Public Prosecutor. He admits about giving statement before the police. In the crossexamination, he says that, on 2301 2018, there were no advertisements near KSRTC Bus Stand, Mothi Circle and Rangamandira. He has not seen whether accused persons were responsible for putting banners, posters, advertisements etc. Thus, if his evidence is perused, it can be said that evidence of PW5 also suffers from material particulars.
25. PW6 is the supervisor in Bellary Corporation. Though, he corroborates the evidence of PW5 and 6, but 16 Spl.CC No.1252/2019 in the crossexamination he has given a clear go bye. He deposes ignorance about when the notice have been served by accused persons and do not know who has put the said advertisement posters, banners etc. Therefore, evidence of PW6 will not help the case of the prosecution in any manner.
26. PW7 is the Investigating Officer in this case. He has spoken about registering of the complaint, visiting the scene of occurrence, conducting panchanama etc. In the crossexamination he says that, when he visited the scene of occurrence, he did not notice any advertisements, banners at the scene of occurrence. He has not obtained any notification issued by the Government of Karnataka regarding declaration of Ballari town coming in the purview of Karnataka Open Place (Prevention of Disfigurement)Act, 1981. It was his bounden duty to obtain the same, but simply he has filed the charge sheet.
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27. On scrupulous reading of the oral evidence spoken to by the witnesses, it shows that, there is no consistency in the evidence. So also we find indiscrepant evidence adduced by the prosecution. These factual features are not properly explained by the prosecution. Alleged Ex.P1 is the complaint, Ex.P2P7 are the notices issued to accused persons. Ex.P8 is the outward register, Exs.P9 to P16 are the photographs showing the pictures of banners, posters etc., Ex.P18 is the spot mahazar/ panchanama, Ex.P19 is the FIR, Ex.P20 is the C.D, also Ex.P21 is the scene of occurrence sketch. On scrupulous reading of these documents, they demonstrate about affixing of advertisements, posters, banners.
28. But the evidence of the witnesses is quite otherwise. Prosecution evidence is very much silent that, whether these accused persons are responsible in fixing the posters, banners etc., at the aforesaid place. Therefore, when there is no such evidence linking these accused persons responsible for commission of the crime as alleged 18 Spl.CC No.1252/2019 by the prosecution, then, it can be stated that, prosecution case suffers from material particulars. More so, there is exorbitant delay in filing the complaint. Though, the alleged offence has taken place from 2012018 to 5012018, but a complaint came to be filed on 22012018. The reason for delay was that, a notice came to be issued on 4012018 but no reply was received. The complainant waited till 22012018, to lodge the complaint. No proper reasons are assigned either in the complaint or in his evidence on oath. It is fatal to the case of the prosecution.
29. More so, it is relevant to note the provisions of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981. This section(1) of the said act reads as under:
1. Short title and commencement (1) This Act may be called the Karnataka Open Places (Prevention of Disfigurement) Act, 1981. (2) It shall,
(i) be deemed to have come into force in the cities of Bangalore, Mysore, HubliDharwar, 19 Spl.CC No.1252/2019 Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporations Act, 1976 or under any other law, on the fifth day of May 1981; and
(ii) come in to force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification, appoint and different dates may be appointed in respect of different areas.
30. As per this section, only the cities of Bengaluru, Mysuru, Hubli, Dharwar, Mangalore and Belgaum are the notified Municipal Corporations to which this act applies. Ballari is not included under the purview of this Act. The Investigating Officer has not collected any material to show that the said Ballari Town is included under the purview of this said Act.
31. Learned counsel for the accused placed reliance on the Judgment of Hon'ble High Court of Karnataka in 20 Spl.CC No.1252/2019 Crl.P.505/2017 C/w. Crl.P.No.511/2017, 512/2017, 953/2018. Relying upon this judgment, the counsel for accused submits that, in view of the clear provisions of Karnataka Open Place (Prevention of Disfigurement)Act, 1981, as per the sections 1 and 2, the Investigating Officer has no jurisdiction to investigate the matter without their being the notified area by the State. The evidence of this PW7 is very much silent about getting the jurisdiction to investigate this case. As per the submission of the learned both counsel, the State Government has not issued any notification, notifying this Ballari Municipality or particular area in which the alleged offence has taken place and the aforesaid act applies.
32. In the said judgment, the Hon'ble High Court of Karnataka has quashed the proceedings itself. The said principles so laid down are aptly applicable to the present facts of the case. Therefore, if all the factual features are 21 Spl.CC No.1252/2019 put together, it can be stated that, prosecution has utterly failed to prove its case beyond all reasonable doubt. Hence, accused Nos.1 to 6 are entitled for acquittal by giving the benefit of doubt. Therefore, I record my finding on the above point in the negative.
33. Point No.2: Resultantly, I proceed to pass the following final order ORDER Acting u/s 255(1) of Cr.P.C, Accused Nos.1 to 6 are acquitted of the offences u/s 3 of the Karnataka Open Places (Prevention and Disfigurement)Act, 1981.
Bail bonds of Accused Nos.1 to 6 stand canceled. They are set at liberty.
(Dictated to the Stenographer, transcribed and typed by her, same is corrected by me and then pronounced in the Open Court on this the 25th day of February, 2020) (RAMACHANDRA.D.HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH82) (Special Court exclusively to deal with Criminal cases related to elected MPs/MLAs in the State of Karnataka) 22 Spl.CC No.1252/2019 ANNEXURE:
Witnesses examined by the prosecution.
PW1 Dr. Hanumanthappa PW2 Shanthamurthy PW3 P.Yeshwantha Kumar PW4 Jagannatha Kulakarni PW5 Kumar Swamy PW6 Kotresh PW7 Rajarathnam
Witnesses examined by the defence/accused. NIL Documents exhibited by the prosecution.
Ex.P.1 Complaint Ex.P.1(a) Signture of the Complainant Ex.P.1(b) Signature of PW.7 Ex.P.2 to 7 Notices to A1 to A6 Ex.P.8 Outward Register Ex.P.916 Posters Ex.P.17 DVD related to Ex.P9 to 16 Ex.P.18 Spot Mahazar Ex.P.19 FIR Ex.P.20 C.D Ex.P21 Rough sketch
Documents exhibited by the defence/accused. NIL List of Material Objects marked by the prosecution: NIL LXXXI ACC & SJ, Bengaluru City (CCH82).
23 Spl.CC No.1252/2019