Bangalore District Court
State By Hirebagewadi Police Station vs Sanjay Balaso Patil on 29 April, 2022
1 CC.No.30814/2021
IN THE COURT OF XLII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 29th day of April, 2022.
:Present:
Smt. PREETH. J., B.A.L., LLB.,
XLII Addl.CMM Judge,
(Spl. Court for trial of cases filed against sitting as
well as former MPs/MLAs,
triable by Magistrate in the State of Karnataka)
[
CC.No.30814/2021.
(Old.Spl.CC.No.1392/2021)
Complainant: State by Hirebagewadi Police Station,
Hirebagewadi, Belagavi District.
(By Lrd. Sr.A.P.P.,)
Vs.
Accused: 1. Sanjay Balaso Patil,
43 Years, R/o.Adharshanagar,
1st Cross, Senha Building,
Belagavi.
2. Dilip Babu Rao Patil,
30 Years, R/o.Bhagani,
Balaw Taluk, Sangali,
Hali.Hindwadi, Adharsha
Nagar, Belagavi.
3. Ankush Ashok Rao Patil,
35 Years, R/o.Shivagipete,
Kollapur, Hali.Hindwadi,
Adharshanagar, Belagavi.
2 CC.No.30814/2021
4. Mahendra Lakshman Nandrekar,l,
35 Years, R/o.Gova, Savarde,
Hali.Hindwadi, Sena Building,
Belagavi.
5. Pradeep Jinnappa Digge,
39 Years, R/o.Yaluru Road,
Sambajinagar, Vadganvu,
Belagavi.
(By Sri.S.P., Advocate)
1. Date of commission of offence : 05.05.2013.
2. Date of report of offence : 05.05.2013.
3. Arrest of accused : Not applicable.
a) Date of arrest of accused : Not applicable.
b) Date of release on bail : 17.11.2021.
c) The period undergone in custody : Not applicable.
4. The name of the complainant : Madivalaswamy.
5. The date of recording of evidence : 13.03.2015.
6. The date of closing of evidence : 04.04.2022.
7. Offences complained of : U/s.171(E) & (H) of
IPC.
8. Opinion of the Judge : Accused found not
Guilty.
=============
JUDGMENT
1. That the Police Sub-Inspector of Hirebagewadi Police Station, Hirebagewadi, Belagavi District has filed charge sheet against the accused No.1 to 5 for the offences punishable under section 171(E) and section 171(H) of IPC. 3 CC.No.30814/2021
2. The case of the prosecution in brief is as follows:
The accused No.1 being the MLA of Belagavi Rural Constituency from BJP and the accused No.2 to 5 being his followers obtained permission to use the vehicle bearing registration No. KA-22-MG-4141 for the purpose of election companioning. On 05-05-2013 at about 04.30 p.m., on receipt of the credible information, when CW-1 went the spot situated near the Government Primary School of Bendikere Village on Bendikeri Road and when he inspected the above said vehicle which was there at the spot, he found Indian Currency Notes amounting to Rs.100 X 117, Rs.500 X 3, Rs.1000 X 23 totally amounting to Rs.36,200/-, 75 dollars pertaining to New Zealand, 25 dollars pertaining to Mauritius, one American dollar and 50 Singaporean dollars. On enquiring with CW-6, who was at the spot, he informed CW-1 that the accused left the spot in his Skoda bearing registration No.KA-22-P-8700 and thought that the accused No.1 may distribute the money to the voters and CW-6 had caught hold of accused No.2 to 5 and on enquiry, they have not given any documents inrespct of the money that was in the car bearing registration No. KA- 4 CC.No.30814/2021 22-MG-4141. Thus, the accused No.1 to 5 have violated the By-Election Model Code of Conduct and thereby committed the offences punishable under section 171(E) and section 171(H) of IPC.
3. On the basis of the complaint of CW-1, the case has been registered under Cr.No.79/2013 against the accused No.1 to 5 for the offences punishable under section 171(E) and section 171(H) of IPC. Thereafter, on completion of the investigation, charge sheet has been filed against the accused No.1 to 5. On receipt of charge sheet, the court took cognizance of the said offences.
4. On appearance of the accused No.1 to 5, they were enlarged on bail. The copies of the prosecution papers were furnished to the accused persons as contemplated under section 207 of Cr.P.C. Thereafter, heard before charge and framed charges and read over to the accused No.1 to 5 for the said offences. They have not pleaded guilty and claimed to be tried. Hence, the matter was posted for evidence. 5 CC.No.30814/2021
5. In order to bring home the guilt of the accused persons, the prosecution has examined all the Eight witnesses as PW-01 to 08 and got marked 08 documents as Ex.P.01 to Ex.P.08 and M.O.1 to 5. After closure of the prosecution evidence, the accused No.1 to 5 were examined under section 313 of Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. The accused No.1 to 5 have denied their involvement in the crime and did not choose to lead any defence evidence on their behalf.
6. I have heard the arguments addressed by the learned Sr. Assistant Public Prosecutor and the learned counsel for the accused.
7. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 05-05-2013 at about 04.30 p.m., near Government Primary School of Bendikere Village on Bendikeri Road the accused persons where found to be in possession of Indian Currency Notes amounting to Rs.36,200/-, 75 dollars pertaining to New Zealand, 25 dollars pertaining to Mauritius, one American dollar and 50 Singaporean dollars in the vehicle bearing registration No.KA-22-MG-
4141 for the purpose of distribution to the voters 6 CC.No.30814/2021 and violated the By-Election Model Code of Conduct and thereby the accused No.1 to 5 have committed the offences punishable under section 171(E) and section 171(H) of IPC?
2. What Order?
8. The findings of this court on the above points are:
Point No.1 : In the Negative, Point No.2 : As per final order for the following:
REASONS
9. Point No.1: The criminal law was set into motion on the basis of first information given by CW-1-Madiwalaswamy R. Kalmat. Ex.P.03 is the first information given by him in which he has narrated about the alleged incident. CW-1 is examined as PW-4 and in his evidence, he has deposed about the contents of Ex.P.1. He has also deposed that on the said day, he came to know about the alleged incident and he went to the spot at about 04.30 p.m., and inspected the vehicle bearing registration No.KA-22-MG-4141 and found Indian Currency notes amounting to Rs.36,200/- and Foreign Currency note such as 75 New Zealand dollars, 25 Mauritius dollars, one American dollar, and 50 Singapore dollars. He has 7 CC.No.30814/2021 deposed that he drew a mahazar (Ex.P.1) at the spot in the presence of the panchas and seized the currency notes and also the car. He has deposed that on enquiry with CW-6 who was at the spot, he informed him that the accused No.1 had left the spot. He has deposed that the CRPF Police had caught hold of the remaining accused persons and on enquiry, they did not produce any documents in respect of those currency notes.
10. PW-4 is throughly cross-examined by the counsel for the accused. He has deposed that he do not know as to how much money one person is permitted to possess during the election. He has deposed that CW-6 had seized one bag from the vehicle. He has deposed that he has not seen the accused persons distributing any money to the voters of Bendikere Village nor soliciting votes in their favour. He has admitted that there are no foreigners in Bendikeri Village. He has also admitted that possessing foreign currency is not an offence in the natural course. When, it is suggested to him that the accused have not violated the Election Code of Conduct he has deposed as follows:
8 CC.No.30814/2021
"ಯವದದ ಆರರದಪತರರದ ಕರಡ ಚಚನವಣ ನದತ ಸರಹತ ಉಲಲ ರಘನ ಆಗಲಲ ಎರದರ ಸಕ ಆರರದಪತರಚ ಅವರ ವಹನದಲ ಇದದ ಕರಸಸಗ ಳ ಬಗಗ ದಖಲಗಳನಚ ನ ಒದಗಸದದ ಲ ನದತ ಸರಹತ ಉಲಲ ರಘನ ಆಗಚತತರ ಲಲಲ ಎರದಚ ನಚಡಯಚತತರ ".
11. From the evidence of PW-4, who is the complainant, it goes to show that the accused No.1 to 5 have not violated the Election Code of Conduct as projected by the prosecution. Even, otherwise, it is not the case of the prosecution that the accused No.1 to 5 were distributing money to any of the voters at the spot nor it is the case of the prosecution that the accused were soliciting for votes at the spot. Further, the very case of the prosecution is that a sum of Rs.36,200/- and few dollars of different countries were in the car. On calculation of the Indian currency and the Foreign dollars as per its value in the Year - 2013, it will not tally amount to Rs.50,000/- also. Though, PW-4 has deposed that he do not know the limit of the money one could possess during the election, generally one can possess upto Rs.50,000/- during the elections. As such, from the oral evidence of PW-4 and also the case of the prosecution, no case is made out as alleged. 9 CC.No.30814/2021
12. The prosecution has also examined CW-2 and 3 who are said to be the seizure mahazar wintriness as PW-1 and 2. The seizure mahazar is marked as Ex.P.1. In their chief- examination, they have deposed that the police have not drawn any mahazar in their presence. They have deposed that the police have obtained their signature on one document in the police station. They have deposed that the police have not seized any objects or vehicle in their presence. They have identified their signature in Ex.P.1.
13. At the request of learned Sr. Assistant Public Prosecutor, both PW-1 and PW-2 were treated as hostile and permission was accorded to cross-examine them, but nothing worthy has been elicited from their mouth to prove the case of the prosecution in respect of Ex.P.1. Both the witnesses have denied all the suggestions put to them by Lrd. Sr. APP.
14. The prosecution has examined CW-4, who is the panch witness to the vehicle release panchanama. He has deposed that the police have not drawn any panchanama in his presence. He do not know the content of the mahzar. The 10 CC.No.30814/2021 vehicle release mahazar is marked as Ex..5. At the request of learned Sr. Assistant Public Prosecutor, he is treated as hostile and permission was accorded to cross-examine him. He has denied all the suggestions put to him.
15. CW-7 and 8 are cited as eye-witnesses to this case. Amongst them CW-8 is examined as PW-3 who is an independent witness. He has deposed that he is not aware of the alleged incident. He has also denied about the seizure of the currency notes from the Scorpio Car and also about the presence of the accused person at the spot. At the request of learned Sr. Assistant Public Prosecutor, he is treated as hostile and permission was accorded to cross-examine him. He has denied all the suggestions put to him.
16. Next is PW6/CW7 who is an official witness, has deposed that he was appointed as Sector Officer for the Vidhana Sabha Election held on 05-05-2013 and at 04.00 p.m., when he went near Bendekeri Polling Booth, he saw one Scorpio Car stopped by the CRPF Officer and other officials and he also saw the Flying Squad Officers and the 11 CC.No.30814/2021 CRPF Officers discussing about the matter at the spot at about 04.30 p.m. He has deposed about the currency notes found in the car and also about the seizure mahazar which is marked as Ex.P.1. He has deposed that the accused No.1 had left the spot and came to know that the other accused persons may distribute money to the voters. He has deposed that the accused persons have kept that money in violation of election code of conduct.
17. In the cross-examination, he has deposed that the people of Bendekere Village have not complained to him that the accused persons weer distribution money to the voters nor they have complained that the accused were talking to the voters. He has also admitted that there are no foreigners in Bendekere Village.
18. The owner of the Car bearing registration No. KA- 22-MG-4141 is examined as PW-8. He has deposed that he had given the said vehicle to the accused No.1, about 7 to 8 Years back for his personnel work. He do not know anything more about their case. At the request of learned Sr. Assistant 12 CC.No.30814/2021 Public Prosecutor, he is treated as hostile and permission was accorded to cross-examine him. He has denied all the suggestions put to him. His statement is marked as Ex.P.8.
19. The police officer who registered the case and investigated the crime and filed charge sheet is examined as PW-7. He has deposed that on receipt of the complaint lodged by the CW-1, he registered the case in N.C Register and then submitted an requisition to the Jurisdictional Magistrate and after obtaining permission from the concerned Magistrate case was registered and investigated the crime and filed charge sheet. The FIR is marked Ex.P-7. He has deposed about the various stages of investigation conducted by him.
20. Now, on analyzing the overall evidence of the prosecution, though, it is alleged that the accused persons were in possession of India and Foreign currency notes in Scorpio Car bearing registration No. KA-22-MG-4141, it is not the case of the prosecution that they have distributed the same to the voters in the locality, nor it is their case that the 13 CC.No.30814/2021 accursed were trying to distribute the same to the voters. Even, though the official witnesses PW-4, PW-6 and PW-7 have deposed in terms of the case of the prosecution, the same will not amount to an offences under section 171 (E) and section 171(H) of IPC. Further, more the very case of the prosecution is that the amount alleged to be possessed in the car is not exceeding Rs.50,000/-. Even, the evidence of the officials is that the accused had not distributed the money but they were suspecting that the accused persons will distribute. section 171(E) speaks about punishment for Bribery and section 171(B) says what is Bribery which reads as follows:
Section 171(B). Bribery.-
(1) Whoever--
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be 14 CC.No.30814/2021 deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.
Section 171(E) - Punishment for bribery.- Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both: Provided that bribery by treating shall be punished with fine only.
Explanation.- "Treating" means that form of bribery where the gratification consists in food, drink, entertainment, or provision".
21. Section 171(H) speaks about illegal payments in connection with an election which reads as follows:
"Section 171-H: Illegal payments in connection with an election: -
Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public 15 CC.No.30814/2021 meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
22. Now, both the offences alleged against the accused persons will not at all fit into both the above sections, because the very case of the prosecution is that the accused were not distributing any money, but they were suspecting that the accused will distribute. Further more, it is not the case of the prosecution that Foreigners also resided in Bendekerei Village. As such, the allegations that the accused 16 CC.No.30814/2021 possessed foreign currency to distribute to the voters is ruled out.
23. Now, coming to the legal aspects of the case, offence under section 171(E) and section 171(H) of IPC is concerned, admittedly the said offences are non - cognizable offences. As such, it is the bounden duty of the Investigating Officer or the person who receives the complaint to follow the mandatory provisions of section 155 of Cr.P.C. When the report is received by the S.H.O. of the Police Station in respect of commission of non - cognizable offence/s, the S.H.O. has to follow the mandatory procedure prescribed under section 155(1) and 155(2) of Cr.P.C. Therefore, it is necessary to refer the said provision which is as hereunder:
"Section-155:- Information as to non - cognizable cases and investigation of such cases:
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non -
cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this 17 CC.No.30814/2021 behalf, and refer the informant to the Magistrate. (2) 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.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non - cognizable."
24. Therefore, when the S.H.O. of the Police Station receives a report regarding commission of non - cognizable offence/s, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under section 155(1) of Cr.P.C. Thereafter, the Jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate 18 CC.No.30814/2021 the case as mandated by the provisions of section 155(2) of Cr.P.C., stated supra. Unless, the Police Officer is permitted by an order of the Jurisdictional Magistrate to investigate the non - cognizable offence/s, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet. In the case on hand, the said procedure is not followed. As such, for lack of oral and documentary evidence and also for non-compliance of procedural aspects, the accused No.1 to 5 cannot be convicted for the alleged offence under section 171(E) and section 171(H) of IPC. Based on the discussions made above, the Point No.1 is answered in the NEGATIVE.
25. Point No.2:- In view of my findings on the above Point No.1, the accused are entitled to be acquitted by giving benefit of doubt and also for procedural lapses. Hence I proceed to pass the following:
ORDER Acting under section 255(1) of Cr.P.C., the accused No.1 to 5 are acquitted for the offences punishable under section 171(E) and section 171(H) of IPC.19 CC.No.30814/2021
The bail bond and surety bond of the accused No.1 to 5 shall stand cancelled.
(Typed by me directly on the computer, corrected and then pronounced th by me in open court on this the 29 day April - 2022).
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) ANNEXURES Witnesses examined for the Prosecution:
PW.1 : Santhosh, PW.2 : Nijalingappa, PW.3 : Parama, PW.4 : Madiwala R. Kalmatt, PW.5 : Shivarudrappa Aralikatte, PW.6 : Appaiah Fakirappa Lkkebailu, PW.7 : Y.M.Navalagatti, PW.8 : Suresh Maruti Ghatake.
Documents exhibited for the Prosecution:
Ex.P.01 : Seizure Panchanama,
Ex.P.01(a) : Sig. of PW.1,
Ex.P.01(b) : Sig. of PW.2,
Ex.P.02 : Statement of PW.3,
Ex.P.03 : Complaint,
Ex.P.03(a) : Sig. of PW.4,
20 CC.No.30814/2021
Ex.P.03(b) : Sig. of PW.7,
Ex.P.03(c) : Sig. of PW.7,
Ex.P.04 : One Photo,
Ex.P.05 : Vehicle release of Panchaname,
Ex.P.05(a) : Sig. of PW.5,
Ex.P.05(b) : Sig. of PW.7,
Ex.P.06 : Requisition Letter dated:05.05.2013,
Ex.P.06(a) : Sig. of PW.7,
Ex.P.07 : FIR,
Ex.P.07(a) : Sig. of PW.7,
Ex.P.08 : St. of PW.8.
Material object exhibited for the Prosecution: -
M.O.01 : Cash of Rs.36,200/-, M.O.02 : New Zealand Dollars (50+20+5), M.O.03 : Marisas Dollars, M.O.04 : American Dollars, M.O.05 : Singapore Currency.
Witnesses examined for the defence Accused:
- NIL -
Documents exhibited for the defence Accused:-
- NIL -
(Preeth. J) XLII Addl. CMM (Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka) 21 CC.No.30814/2021