Karnataka High Court
Manjunath Dundappa Danawadkar vs The State Of Karnataka on 26 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:11426
CRL.P No. 101966 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 101966 OF 2023
BETWEEN:
MANJUNATH DUNDAPPA DANAWADKAR,
AGE. 35 YEARS, OCC.
R/O. SAMARTH GALLI,
SHAHU NAGAR, DIST. BELAGAVI-590010.
... PETITIONER
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH PSI, MALMARUTI POLICE STATION,
M.M. EXTN, BELAGAVI-590016,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
AT DHARWAD-580011.
2. NINGANAGOUDA A. PATIL,
VISHAL POLICE INSPECTOR CITY CRIME BRANCH,
NINGAPPA
PATTIHAL BELAGAVI-590016, R/BY STATE PUBLIC PROSECUTOR,
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
HIHC COURT OF KARNATAKA, DHARWAD-580011.
Date: 2023.10.16
13:54:00 +0530 ... RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO QUASH THE ORDER DATED 21.02.2022 IN
C.C.NO.702/2021 (CRIME NO. 32/2021) ACCUSED NO.1 FOR THE
OFFENCES P/U/SE.417, 420 OF IPC PENDING ON THE FILE OF JMFC
II, BELAGAVI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:11426
CRL.P No. 101966 of 2023
ORDER
1. The petitioner is before this Court calling in question an order dated 21.02.2022 registered for the offences punishable under Sections 417 and 420 of the Indian Penal Code (hereinafter referred to as 'the IPC', for short).
2. Heard the learned counsel Sri.Vittal S. Teli appearing for the petitioner and the learned HCGP Sri. V.S. Kalasurmath appearing for the respondents.
3. The Learned Council appearing for the petitioner submits that the issue in the lis stands covered by the judgment rendered by this Court in Criminal Petition No.101510 and connected cases. This Court has a held as follows:
"6.4. The learned High Court Government Pleader would vehemently refute the submissions and contends that voluntary statements given by accused 1 and 2 before the Police would clearly indicate that all the accused are prima facie guilty of offences punishable under the provisions of the Act and the IPC. He has placed voluntary statements given by the accused and also has produced written prescriptions by the doctors for supply of Remdesivir injection and would -3- NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 contend that what are produced by the petitioner in Criminal Petition No.101510 of 2021 as prescriptions are all bogus. He would submit that this is a matter for trial in which the petitioners have to come out clean. Insofar as accused 3 and 4 are concerned, it is the submission of the learned High Court Government Pleader that owners of Pola Paradise hospital which was converted to Covid case centre were brought in only on the voluntary statement made by accused 1 and 2 that accused 3 and 4 were also involved in the crime.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute. Accused No.1 is said to have been caught on the scooter when the raid took place. Accused 2, 3 and 4 are brought into these proceedings on certain statements made by accused No.1. Statement made by accused No.1 brings in accused No.2. Statements made by accused 1 and 2 bring in accused 3 and
4. The nexus that is sought to be established lies in very thin air insofar as it concerns accused 2, 3 and 4. Some semblance of nexus is available against accused No.1.
9. Proceedings are instituted for offences punishable under Section 420 of the IPC and Section 5(1) of the Act. I deem it appropriate to notice the provisions of the Act. The Act was promulgated in the year 2020 pursuant to an observation made by a Division Bench of this Court. The Act was brought into force on 16th October, 2020. Certain provisions that are germane are Sections 4, 5, 6 and 9 and they read as follows:
-4-NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 "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 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 theState;
(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 institutions;
(g) to regulate or restrict the functioning of -5- NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 offices, Government and Private and educational institutions in theState;
(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.
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 orany public servant while acting or purporting toact 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.
-6-NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 (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 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.
6. Prohibition for causing damage to public or private property.--(1) No person shall commit or attempt to commit or instigate, incite or otherwise abet the commission of offence to cause loss or damage to any public or private property in any area when restrictions and regulations are in force to contain any epidemic disease.
-7-NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 (2) Whoever contravenes the provision of sub- section (1) shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years and with a fine which shall not be less than fifty thousand rupees, butwhich may extend to two lakh rupees.
9. Cognizance, investigation and trial of offences.--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974),--
(i) an offence punishable under Section 5 or Section 6 shall be cognizable and non-bailable;
(ii) any case registered under Section 5 or Section 6 shall be investigated by a police officer not below the rank of Inspector;
(iii) investigation of a case under Section 5 or Section 6 shall be completed within a period of thirty days from the date of registration of the First Information Report;
(iv) in every inquiry or trial of a case under Section 5 or Section 6, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded, and an endeavour shall be made to ensure that the inquiry or trial is concluded within a period -8- NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 of one year:
Provided that, where the trial is not concluded within the said period, the Judge shall record the reasons for not having done so:
Provided further that, the said period may be extended by such further period, for reasons to be recorded in writing, but not exceeding six months at a time."
10. Sub-section (1) of Section 4 deals and directs the Government to frame such Regulations to be observed by publicor by any person or Society to prevent out-break of such disease and exercise of such power and duty may be specified in those Regulations. Section 5 deals with prohibition of contravention or obstruction of public servant. Sub-section (1) of Section 5 that is invoked in the case on hand directs that no person, institute or a company shall contravene or disobey any of the provisions of Section 4, Rules, Regulations or Order made under the Act. It is the violation of Section 4 that brings in offences punishable under Section 5 of the Act. Section 9 deals with cognizance, investigation and trial of offences and would begin with a non-obstante clause that notwithstanding anything contained in the Cr.P.C. offences punishable under Section 5 or Section 6 are cognizable and non-bailable and any offence registered under Section 5 or Section 6 shall be investigated by a Police Officer not below the rank of an Inspector. Investigation of a case under Section 5 or Section 6 shall be completed within 30 days from the date of registration of the first information report. It is these -9- NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 provisions that are germane to be noticed at this juncture in the case at hand.
11. The incident of raid and seizure happened on 7.5.2021 at 4.30 p.m. Based on the incident, on the very same day a complaint was registered by the Police Inspector before the jurisdictional police which becomes an FIR in Crime No.82 of 2021. The crime is registered for offences punishable under Section 5(1) of the Act and Section 420 of the IPC. Section 5(1) of the Act supra deals with offences punishable for contravention of Section 4. Clause (iii) of Section 9 mandates that investigation of a case under Section 5 or Section 6 shall be completed within 30 days from the date of registration of FIR. The words used "shall be completed within thirty days" and the mandate of the said provision is found in its non-obstante clause. Therefore the investigation ought to be completed within one month from the date of registration of FIR.
12. 7.5.2021 is the date of registration of FIR cannot be in doubt as it is a matter of record. Investigation ought to have been completed by the Investigating Officer on or before 7.06.2021 or even on the date on which the interim order was granted by this Court on 16-08-2021. This Court noticing the fact that investigation ought to have been completed within 30 days from the date of registration of FIR granted an interim order of stay in these three cases on 16-08-2021 and 18-08- 2021. Therefore, clause (iii) of Section 9 supra on the face of it is violated. The submission of the learned High Court Government Pleader that investigation did not complete only due to the interim order
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NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 granted by this Court is contrary to record. Interim order is granted on 16-08-2021 and 18-08-2021 by which time more than 3½ months had lapsed after registration of FIR. Therefore, the entire proceedings would get vitiated on account of violation of the mandate of clause (iii) of Section 9 of the Act.
13. The other allegation that is made is invoking provisions of Section 420 of the IPC. Section 420 reads as follows:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
To allege offence under Section 420 the ingredients as available under Section 415 are to be prima facie narrated in the complaint at least. Section 415 reads as follows:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything
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NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
14. Section 415 mandates that the victim should be induced by the accused in furtherance of an intention to cheat, right from the beginning of a particular transaction. In the case at hand accused No.1 who was caught at the time when he was trying to supply Remdesivir injection had not induced any person to take it and did not get unjust enrichment out of that sale. Therefore, the said offence cannot even link to the incident. There is no compliant by any victim for having been induced with an intention to cheat. As a matter of fact Remdesivir injection was not even sold. Insofar as accused No.2is concerned he is the stockiest who had all the valid documentsfor stocking Remdesivir. He is dragged into these proceedings as Remdesivir bore the seal of the stockiest. Accused 3 and 4 who were also alleged of the same offences are dragged into these proceedings for nothing. Mere fact that the hotel that they own was made a covid care centre and on the voluntary statements of accused 1 and 2 they could not have been brought into these proceedings that too on the ground that they did not cooperate in the inquiry when notices were issued under Section 41A(1) of the Cr.P.C. Section 420 IPC cannot even be alleged to be imagined against accused 3 and 4. It
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NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 is gross highhandedness of the machinery of the State that has dragged accused 3 and 4 into the web of these proceedings. In the light of the incident or the complaint not making out any ingredient of Section 415 of the IPC offences punishable under Section 420 also cannot be invoked. Therefore, the entire crime falls to the ground on account of non-completion of investigation within one month as is mandated by clause (iii) of Section 9 of the Act. The incident on which the complaint is registered does not have any semblance of ingredients that are required under Section 415 of the IPC to even allege offences punishable under Section 420."
4. The learned High Court Government Pleader would, though, refute the submission, is not in a position to dispute the position of law as is laid down supra.
5. Therefore, for the very reasons rendered therein, the subject petition also deserves to succeed.
6. For the aforesaid reasons, the following ORDER i. The petition is allowed.
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NC: 2023:KHC-D:11426 CRL.P No. 101966 of 2023 ii. The proceedings in CC No.702/2021 pending on the file of the learned JMFC II, Belagavi stands quashed qua the petitioners.
Sd/-
JUDGE kmv ct:bck List No.: 1 Sl No.: 34