Karnataka High Court
Smt. Umashree vs The State Of Karnataka on 8 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:31712
CRL.P No. 10227 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 10227 OF 2022
BETWEEN:
SMT. UMASHREE,
AGE: 65 YEARS, OCC: ACTRESS,
R/O RABAKAVI - 587 301,
TQ: JAMAKHANDI,
NOW TQ: RABAKAVI-BANAHATTI,
DIST: BAGALKOT.
...PETITIONER
(BY SRI. S. MAHESH KIRAN SHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY SATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
Digitally signed THROUGH TERADAL P.S,
by NAGAVENI (BANAHATTI CIRCLE ).
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. JAGADEESHA B.N., ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC., PRAYING TO ALLOW THIS PETITION BY QUASHING
THE ENTIRE PROCEEDINGS IN CC NO. 831/2019 (IN CRIME
NO. 34/2019) REGISTERED WITH BANAHATTI PS FOR THE
OFFENCES PUNISHABLE UNDER SECTION 123(3A) RP ACT AND
171 (D) OF IPC PENDING ON THE FILE OF THE CIVIL JUDGE
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NC: 2024:KHC:31712
CRL.P No. 10227 of 2022
AND JMFC BANAHATTI IN SO FAR AS ACCUSED NO.2 IS
CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Petitioner is before this Court calling in question the proceedings in C.C.No.831/2019 (in Crime No.34/2019) registered for the offence punishable under Sections 123(3A) Representation of People Act (hereinafter referred to as R.P. Act for short) and 171 (D) of Indian Penal Code, 1860 (hereinafter referred to as IPC for short) pending on the file of the Civil Judge & JMFC, Banahatti.
2. Heard the learned counsel Sri. S. Mahesh Kiran Shetty appearing for the petitioner and learned Additional SPP Sri. Jagadeesha B.N. appearing for the respondent.
3. Learned counsel for the petitioner would submit that the issue in the lis has answered by the coordinate Bench in Criminal Petition No.101459/2021.
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4. The order in the aforesaid petition is as under:
2. The factual matrix of the case enumerated from the records are that that one Chanamallappa S. Domanal appointed as flying squad for the Lokasabha Elections held in the year 2019 has filed complaint on 18.03.2019 before Terdal Police Station alleging that on 17.03.2019 when he was on patrolling duty at Madarkandi village, at 6.20 p.m., received a phone call that in wrestling competition held at Shivalingeshwar Jaatra Sasalatti village will be inaugurated by the political leaders. Immediately, he along with flying squad has visited the spot around 7.20 p.m. but nobody was there.
3. It is further alleged that, after seeing the VST prepared by the VST team on 18.03.2019 at wrestling inauguration different political leaders have attended the function and Sri. Sanagamesh Nirani was addressing the public about Sasalatti Yaat Neeravari Yojane and he was accompanied by Smt. Umashri, Ex- Minister of Terdal and violated the code of conduct and therefore, he filed complaint for the offence punishable under Section 123(3A) of Representation of People Act.
(hereinafter referred to as the 'R.P. Act', for brevity) and Section 171(D) of IPC.
4. The main contention of the learned counsel is that the Police have no jurisdiction to investigate without taking permission of the judicial Magistrate as contemplated under Section 155(2) of Cr.P.C.
5. I have carefully perused the said provisions under the Representation of Peoples Act. Nowhere in the R.P. Act, it is declared that the said provisions are cognizable offence. Section 171(D) of IPC deals with punishment for Personation at elections i.e., procures or attempting to procure the voting by any person during the election. The -4- NC: 2024:KHC:31712 CRL.P No. 10227 of 2022 punishment for the said offence under Section 171(D) is punishable under Section 171(E) of IPC. Punishment for the said offence is imprisonment which may extent to one year and fine. Therefore, for all practical purposes, it can be taken that Section 171(E) of IPC and Section 123 of the R.P. Act are non-cognizable offences. Section 155(2) of Cr.P.C. is a mandatory provision which mandates that, "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."
6. On a detailed discussion of the Representation of the Peoples Act, the Hon'ble Apex Court in the decision reported in (1996)11 SCC 557 (Keshv Lal Thakur Vs. State of Bihar), has held that, "Election People Act, 1951 Representation of S 31 Investigation Into, and taking cognizance of offence under Legality Being a non-cognizable offence, investigation into offence under S.31 without an order of a competent Magistrate under S. 155(2) Cr.P.C., held, illegal - Hence, the Magistrate could not take cognizance thereof upon the report submitted on completion of such Investigation Criminal Procedure Code, 1973, Ss.2(c) & (d), 154, 155(2) & 190(1)(a)(b)."
7. Relying upon the aforesaid decision, the co- ordinate Bench of this Court in the case of Shashil S/o. Gangadhar Namoshi Vs. The State of Karnataka and another in Criminal Petition No.200420/2015, has held that taking cognizance by the Magistrate on the basis of report submitted by the police, after due investigation pertaining to ล non- cognizable offence is bad in law and the same is liable to be quashed.
8. Looking to the above said decisions and in the facts and circumstances of the case, taking -5- NC: 2024:KHC:31712 CRL.P No. 10227 of 2022 cognizance by the Magistrate on the basis of the report submitted by the police after due investigation, pertaining to a non- cognizable offence is bad in law and the same is liable to be quashed. Accordingly, the following.
ORDER Petition is allowed.
All further proceedings in C.C. No.831/2019 (Crime No.34/2019 of Terdal Police Station) on the file of Civil Judge and JMFC, Banahatti for the offence under Section 171(D) of IPC and Section 123(3A) of R.P. Act are hereby quashed so far as the petitioner is concerned.
5. Learned Additional SPP would not dispute the position of law as is laid down by the Coordinate Bench.
6. In the light of the issue in the lis having completely answered by the Coordinate Bench, the petitioner is entitled to succeed by the same order.
7. Accordingly, the following:
ORDER
(i) Petition is allowed.
(ii) All further proceedings in C.C.
No.831/2019 (Crime No.34/2019)
registered with Banahatti PS, pending on -6- NC: 2024:KHC:31712 CRL.P No. 10227 of 2022 the file of Civil Judge and JMFC, Banahatti for the offence under Sections 171(D) of IPC and Section 123(3A) of R.P. Act are hereby quashed insofar as the petitioner is concerned.
Sd/-
(M.NAGAPRASANNA) JUDGE BVK List No.: 1 Sl No.: 1 CT: BHK