Karnataka High Court
Sri Priyank M Kharge vs State Of Karnataka on 8 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:32381
CRL.P No. 8391 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8391 OF 2023
BETWEEN:
SR.I PRIYANK KHARGE S/O MALLIKARJUN KHARGE,
AGE. 44 YEARS, R/AT NO. 440,
11TH MAIN, SADASHIVANAGAR,
RMV EXTENSION, BENGALURU-560080.
... PETITIONER
(BY SRI. ASHWIN C., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY IJOR POLICE RAMANGARA DIST.,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VISHAL BANGALORE-560001.
NINGAPPA
2. M. VIJAYAKUMAR S/O LATE .M. MADAPPA,
PATTIHAL AGED ABOUT 57 YEARS,
TALUK OFFICER, RAMNAGARA TALUK,
Digitally signed by RAMNAGAR-562159.
VISHAL NINGAPPA ... RESPONDENTS
PATTIHAL
(BY SMT. YASHODHA K.P., HCGP)
Date: 2023.09.13
12:27:18 +0530
THIS CRL.P IS FILED U/S 482 CR.PC BY THE ADVOCATE FOR
THE PETITIONER PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.6231/2023 PENDING BEFORE THE HONBLE XLII ADDL.CHIEF
METROPOLITAN MAGISTRATE 42nd A.C.M.M BENGALURU (SPL.COURT
FOR TRIAL OF CASES AGAINST SITTING AS WELL AS FORMER
MPs/MLAs, TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA)
FILED BY THE RESPONDENT NO.1 POLICE FOR THE OFFENCE P/U/S
5(3A) OF KARNATAKA EPIDEMIC DISEASE ACT 2020 AND UNDER
SEC.141,143,290,336,149 OF IPC.
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NC: 2023:KHC:32381
CRL.P No. 8391 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned counsel Shri Ashwin C. appearing for the petitioner and the learned HCGP Smt. Yashodha K.P. appearing for the respondent No.1 - State.
2. The petitioner is before this Court calling in question the proceedings in C.C. No.6231/2023 registered for the offences punishable under Section 5(3A) of the Karnataka Epidemic Disease Act, 2020 and Sections 141, 143, 290, 336, 149 of the IPC.
3. Learned counsel appearing for the petitioner would submit that the issue in the case at hand stands covered by the judgment rendered by this Court in Crl.P. No.5910/2023, disposed off on 28th July 2023, wherein it is held as under:
3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.5726/2022, disposed of on 16.06.2023, wherein this Court has held as follows:-3-
NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 " 3. Facts, in brief, as projected by the prosecution, are as follows:
The petitioners are all Members of the Karnataka Pradesh Congress Committee ('KPCC' for short), the State unit of the Indian National Congress. The petitioners led by the President of the KPCC, accused No.1 announced that a padayatra would be undertaken in order to demand implementation of Mekedatu Project for the benefit of the citizens of the State of Karnataka, in particular the residents of Bangalore City. It is for the said purpose, the padayatra was said to be undertaken by the KPCC from 09-01-2022 till 19- 01-2022. A complaint comes to be registered on 12-01-2022 alleging that the petitioners have not taken requisite permission as the permission sought was refused by the District Magistrate in terms of his endorsement dated 06.01.2022. Notwithstanding this, padayatra was conducted. The Police after investigation filed a charge sheet in C.C.No.8717 of 2022. Identical crime was registered in which the charge sheet was also filed by the Police against accused No.1 herein, the President of the KPCC. The offences alleged therein are the ones punishable under Section 5(3A) of the Act, which is the offence alleged against the petitioners in the case at hand. This Court in Criminal Petition No.3328 of 2023 decided on 16-06-2023 interpreting the offence under Section 5(3A) of the Act has held as follows:
"7. The issue lies in a narrow compass. What triggers registration of the crime is a rally that was held by the Congress party, the President of which is the petitioner. On 10-01-2022, when the rally was in its motion, the President i.e., the petitioner between 11.30 a.m. and 12.30 p.m. visits Vishwodaya High School. The children of the school came out of their classes and posed for a picture with the President. This incident becomes a crime in Crime No.3 -4- NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 of 2022 for the afore-quoted offences. What is alleged against the petitioner is, violation of the provisions of the Karnataka Epidemic Diseases Act and Section 75 of the Act. The violation is in particular to Section 5(3A) of the Karnataka Epidemic Diseases Act and Section 75 of the Act. Therefore, it becomes germane to notice those provisions of law. Section 5 of the Karnataka Epidemic Diseases Act reads as follows:
"5. Prohibition of Contravention or obstruction of Public Servant.--(1) No person, institution or company shall contravene or disobey any of the provisions of Section 4, rules, regulation or order made under this Act.
(2) No person shall obstruct any officer or any public servant while acting or purporting to act or discharging any duty in pursuance to any provisions of this Act, rules, regulations or orders made there under.
(3) No person shall indulge in any act of violence against a public servant or cause any damage or loss to any public or private property during an epidemic.
(3-A) whoever contravenes the provisions of sub-section (1) shall be punished with such fine as may be prescribed in rules or in regulations, which may extend to fifty thousand rupees or with imprisonment for a term which may extend up to three months or with both.
(4) Whoever contravenes any of the provisions of sub-section (2) or (3) shall on conviction be punished with imprisonment for a term which shall not be less than three -5- NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 months, but which may extend to five years and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.
(5) Whoever, while committing an act of violence against a public servant, causes grievous hurt as defined in Section 320 of Indian Penal Code, 1860 (Act 45 of 1860) to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees."
(Emphasis supplied) Section 5(3A) mandates that whoever contravenes sub-section (1) shall be punished in terms of sub-section (3A). Sub-section (1) concerns that any person, institution or company contravening or disobeying any provisions of Section 4, Rules or Regulations made under the Act would become an offence and the offence would become punishable under sub- section (3A).
8. Therefore, it becomes germane to notice Section 4 of the Karnataka Epidemic Diseases Act as the contravention of Section 4 would result in an offence under Section 5. Section 4 of the Karnataka Epidemic Diseases Act reads as follows:
"4. Power to take special measures and specify regulations as to epidemic disease.--(1) When at any time the Government is satisfied that the State or any part thereof is visited by or threatened with an -6- NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such disease or the spread thereof and require or empower Deputy Commissioner and/or Municipal Commissioners to exercise such powers and duties as may be specified in the said regulations or orders.
(2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take measures and specify regulations,--
(a) to prohibit any usage or act which the Government considers sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the State;
(b) to inspect the persons entering the State by air, rail, road, sea or any other means or in quarantine or in isolation, in hospital, temporary accommodation, home or otherwise of persons suspected of being infected with any such disease by the officers authorized in the regulation or orders;
(c) to seal State or district borders for such period as may be deemed necessary;
(d) to impose restrictions on the operation of public and private transport;
(e) to prescribe social distancing norms;
(f) to restrict or prohibit congregation of persons in public places and religious -7- NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 institutions;
(g) to regulate or restrict the functioning of offices, Government and Private and educationalinstitutions in the State;
(h) to impose prohibition or restrictions on the functioning of shops and commercial establishments, factories, workshops and godowns;
(i) to restrict duration of services in essential or emergency services such as banks, media, health care, food supply, electricity, water, fuel, etc.,;
(j) to restrict social, political, sports, entertainment, academic, cultural or religious functions or gatherings; and
(k) such other measures as may be necessary for the regulation and prevention of epidemic diseases as decided by the Government."
Section 4 mandates that in order to take special measures and specify regulations as to epidemic disease, the Government by a notification in the Official Gazette specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such disease. Therefore, the fulcrum of Section 4 is issuance of a notification in the Official Gazette notifying temporary regulations or orders. It is after such notification under Section 4, if a person contravenes or disobeys those Regulations so notified, it would become an offence under Section 5 for contravention of Regulations notified under Section 4.
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9. It is admitted fact that no notification is issued by the State Government under Section 4 of the Karnataka Epidemic Diseases Act. If there is no notification issued under Section 4, an offence under Section 5 cannot be laid against any person as there is no regulation that a person would contravene as contravention of the Regulations cannot be imaginary. Therefore, the very offence alleged against the petitioner was fundamentally flawed.
10. The other offence alleged is under Section 75 of the Act. Section 75 of the Act reads as follows:
"75. Punishment for cruelty to child.-- Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:
Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:
Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous -9- NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:
Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees."
Section 75 makes it an offence if the person who is in-charge of the child or has control over the child assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause the child unnecessary mental or physical suffering shall become punishable for a term which may extend upto 3 years.
11. The fact that leads to the said allegation is that, the petitioner posed for a picture with the children at Vishwodaya High School, Kanakapura Taluk. The children were neither under the care or protection of the petitioner nor was he in-charge of the children. The children come out of the classes for the picture and the matter ends there. The petitioner did not have any control or in-charge over the children. The very offence is loosely laid against the petitioner, much less to say he is alleged of assault, abandoning, abusing or exposing or neglecting the children. The aforesaid facts cannot even lead to the alleged offences against the petitioner.
12. The Police have also filed a charge
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NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 sheet in the matter alleging that Government has notified a Standard Operating Procedure during Covid-19 on 04-01-2022, and therefore, there has been violation of the provisions of the Karnataka Epidemic Diseases Act, 2020. The very summary of the charge sheet clearly indicates that it is laid on imaginary lines. A trivial act which does not contain any of the ingredients of the afore-quoted offences, is laid against the petitioner. A perusal at the summary of the charge sheet would indicate the reason behind filing of the charge sheet. The summary insofar as such indication reads as follows:
"ಕ ಟಕ ಸ ರ ೕ -19 ಂ ಕ ೕಗ ಹರ ದ ತಡಗ ವ ಸ
ರ!"ದ# RD/158/TNR/2020 Date 04/01/2022 ೕ -19 $ಗ %&ಯ ಉಲ* ಂ+", ಮಕ- .ಗ/ಂದ "ನಮ1 2ೕ3, ನಮ1 ಹ4- " ಎಂಬ 7ೕಷ9ಯ : ", ಮಕ- ಳ <ಜ>ೕಯ ? ೕ@AತB.C DE $!, ಸ F ರ!"3ವ RD/158/TNR/2020 Date 04/01/2022 ೕ -19 $ಗ %&ಯ ಉಲ* ಂ+"3 G ತ2HIಂದ JಢಪM 3ತN O."
The petitioner appears to have made the children to eco with him "£ÀvÀÄä ¤ÃgÄÀ , £ÀvÀÄä ºÀPÀÄÌ".
This is said to be politically influencing the children of the High School who are below 15 years of age. Therefore, none of the allegations made against the petitioner are even present in the case at hand and if only for the reason that charge sheet is filed against the petitioner, further proceedings are permitted to continue it would become an abuse of the process of law and result in miscarriage of justice."
4. In the aforesaid order, this Court
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NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 holding that the allegation of violation of the Act against accused No.1 herein who was the accused therein was not proved has allowed the petition. The said finding rendered would cover the issue in the case at hand in all its fours insofar as it pertains to the Act. The other offence alleged are all for formation of unlawful assembly as would obtain under Section 143 and 149 or 141 of the IPC. If the foundation of the allegation is under the provisions of the Act and if that cannot be laid against the petitioners, the offences under the IPC, which are an offshoot of the offences under the Act cannot also be laid. Therefore, for the reasons rendered in Criminal Petition No.3328 of 2023, apart from reasons rendered on all other issues in the case at hand, the petition deserves to succeed."
4. In the light of the issue standing answered in the aforesaid petition (supra), the present petition deserves to be succeed on the very same reasons rendered (supra). For the aforesaid reason, the following:
ORDER
(i) The petition is allowed.
(ii) The proceedings in C.C. No.6231/2023 registered for the offences punishable under Section 5(3A) of the Karnataka Epidemic Disease Act, 2020 and Sections
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NC: 2023:KHC:32381 CRL.P No. 8391 of 2023 141, 143, 290, 336, 149 of the IPC stands quashed.
Sd/-
JUDGE vnp*/ct:bck List No.: 19 Sl No.: 18