Karnataka High Court
Nijaguni vs Taluka Executive Magistrate on 8 August, 2017
Author: R.B Budihal
Bench: R.B Budihal.
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
WRIT PETITION NO.108129/2016(GM-POLICE)
BETWEEN:
NIJAGUNI SITARAM BADIGER
AGE:42 YEARS, OCC. MRF TYRE DEALERS
ORIDINARY, R/O ADHYAPAK NAGAR
NEAR HANUMAN TEMPLE
NARGUND,
PERMANENT R/O H.NO.1996
JADAGERI ONI & AT POST-MUNAVALLI
TQ. SAVADATTI, DIST. BELAGAVI
... PETITIONER
(BY SRI.NAMADEV SEETARAM BADIGER, ADVOCATE)
AND
1. TALUKA EXECUTIVE MAGISTRATE
MINI VIDHANA SOUDHA
SOUNDATTI, DIST. BELAGAVI
2. SUB-DIVISIONAL MAGISTRATE
BAILHONGAL, DIST. BELAGAVI
3. THE KARNATAKA STATE HOME DEPARTMENT,
R/BY SECREATY SECRETARY OF HOME DEPARTMENT,
VIKAS SOUDHA, BENGALURU
4. THE SUPERINTENDENT OF POLICE
BELAGAVI
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5. THE DIVISIONAL SUPERINTENDENT OF POLICE
RAMDURGA, DIST. BELAGAVI
6. THE SUB-INSPECTOR OF POLICE,
SAVANDATTI POLICE STATION,
SAVANDATTI, DIST. BELAGAVI
... RESPONDENTS
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C AND PRAYED FOR QUASH THE FIR FILED ON 27.08.2016
IN CRIME NO.325/2016 OF SAVANDATTI POLICE STATION
REGISTERED UNDER 107 OF CR.P.C. MARKED AS ANNEXURE-B
AND THE SUBSEQUENT PROCEEDINGS THEREON
CULIMINATING IN THE ORDER PASSED BY THE TALUKA
EXECUTIVE MAGISTRATE IN MAG CR.PC.107/CR35/16-17
MARKED AS ANNEXURE-A WITH RESPECT TO PETITIONER
DATED:06.09.2016 AND QUASH THE IMPUGNED NOTICE
DATED:07.09.2016 MAG/CR.M/CR14/2016-17, MARKED AS
ANNEXURE-E ISSUED U/S.58 OF KARNATAKA POLICE ACT 1963
BY SUB DIVISIONAL MAGISTRATE BAILHONGAL WITH RESPECT
TO PETITIONER AND PROPOSED ACTION AND PROCEEDINGS
TO BE TAKEN FOLLOWING THEREON.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused under articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. praying the court to quash the FIR dated 27.08.2016 in Crime No.325/2016 of Savandatti :3: Police Station registered under Section 107 of Cr.P.C. produced as per Annexure-B and also the subsequent proceedings thereon culminating in the order passed by the Taluka Executive Magistrate in MAG.Cr.P.C.107/Cr.35/16-17 marked and produced as per Annexure-A dated:06.09.2016, also sought for quashing the impugned notice dated 07.09.2016 in the said proceedings i.e., MAG/CRM/CR-14/2016-17 marked as Annexure-E issued under Section 58 of Karnataka Police Act, 1963 by Sub-Divisional Magistrate, Bailhongal in respect of petitioner proposed action and proceedings to be taken following there on.
2. Brief facts leading to filing of this petition as averred in the petition that, the petitioner being a member of the joint family having permanent residence at Munavalli, also having ordinary residence at Adhyapaka Nagar, Naragund for carrying business of MRF dealership along with family since from 8 years. It is the traditional practice of petitioner that, all festivals are celebrated :4: together with rest of the family members at Munavalli resident only. Because of that, to attend the "Ganesh Immersion Ceremony", the petitioner is used to be present before his permanent residence along with the family members. The ASI of Munavalli out-post came and served a copy of Notice/Communication/Order on 01.09.2016. Before serving he himself made correction in the number and the date, the petitioner is in confused mind and he does not understand the contents of the said notice also the date as it was not clearly visible whether it is 12.09.2016 or 18.09.2016. Under such confused state of mind, petitioner deems it is on 18.09.2016. The petitioner's Advocate appeared before the Taluka Executive Magistrate office on 17.09.2016 and made an enquiry regarding to the date and about his confusion, the case worker told that, move bail application along with the surety, then he applied for certified copy of entire order sheet, FIR and Police report dated 27.08.2016 relating to the said case on going through the documents it reveals that, complainant Sub-Inspector of Savadatti on suo- :5: motto, registered Crime No.0325/2016 under Section 107 of Cr.P.C and filed FIR before the Magistrate Savadatti on 27.08.2016 also complainant to that effect has submitted the alleged information to Magistrate and asked calling upon the petitioner for execution of the Interim Bond under Section 116(3) of Cr.P.C is not tenable, the complainant-Police Sub-Inspector of Savadatti swear on oath stating in the aforesaid proceedings the contents of FIR are true and correct to the best of his knowledge. Petitioner's counsel applied for entire order sheet but copying officer said what is marked as Annexure-D is copy of entire order sheet of proceedings. On 12.09.2016 against ASI, Talwar served a copy of notice issued under Section 58 of Karnataka Police Act, impugned notice came to the knowledge of the petitioner that, the Savadatti Magistrate initiated action and proceedings for externing the petitioner under Section 56(g) of Karnataka Police Act, dated 07.09.2016 in No.MAG/Cr.M/Cr.14/2016-17 marked as Annexure-E. The further averments in the petition that, on application under Section 6(1) and 7(1) of RTI Act, :6: 2005 the PSI of Savadatti neither refused nor provide the said information. Therefore an appeal made to Superintendent of Police for prior order for entering the name of petitioner in rowdy list as rowdy sheeter. In answer to the appeal Savadatti PSI endorsed he is the "Public Information Officer" and therefore the petitioner is required to file appeal before him. Being aggrieved by the said intimation and the initiation of the proceedings by the Taluka Executive Magistrate, the petitioner challenged the said actions on the grounds as mentioned in ground numbers VIII to XX.
3. Heard the arguments of the learned counsel appearing for the petitioner and also the learned HCGP appearing for the respondents.
4. Learned counsel for the petitioner has submitted that sofar as the proceedings registered under Section 107 of Cr.P.C., the Taluka Executive Magistrate has not followed the mandatory provisions of Criminal Procedure Code, but simply relying upon the report :7: submitted by the Police, the Taluka Executive Magistrate straightaway proceeded to pass such order of issuing show cause notice to the petitioner, as to why he should not be asked to execute a bond for a period of one year for keeping peace in the society. Hence, it is his contention that when the police report is filed, the Taluka Executive Magistrate has to apply his mind to the said report and then he has to pass the order under Section 111 of Cr.P.C., but in this case, without following such procedure, show cause notice was issued to the petitioner. It is also his contention that as the petitioner was confused with the date that whether it is 12 or 18 of September, 2016, he has not appeared before the Taluka Executive Magistrate. Hence, he has submitted that the proceedings initiated under Section 107 of Cr.P.C. are liable to be quashed.
5. Learned counsel for the petitioner has also submitted that regarding the second prayer in the petition about placing the name of the petitioner in the rowdy sheeter list, the Police authorities have not at all followed :8: the mandatory requirements when he applied for the copies of the documents, they were also not supplied to him, hence, even regarding externment proceedings initiated invoking Section 58 of Karnataka Police Act are also illegal and not sustainable in law. Because of the said illegality committed by the Police, the proceedings initiated under Section 56G of Karnataka Police Act are not sustainable in law. Hence, he contended that the proceedings are liable to be quashed.
6. In support of his contention, learned counsel for the petitioner has relied upon the following decisions filed along with the memo dated 18.07.2012:
i. AIR 1970 PATNA 107 (V 57 C 17) in the case of Balkishun Sao and others vs. Munno Khan. ii. Order passed by this Court dated 16.02.2016 in Crl.P.1057/2016 in the case of Sri V.Nagaraj and others vs. State of Karnataka and others. iii. 2010 Crl.L.J. 2267 Crl.Mis.620/2010 dated 15.2.2010 :9:
iv. Crl.RP.Nos.274 and 275 of 1983 dated 23.11.1984 in the case of Udandappa Hanamappa Pujari vs. State of Karnataka v. Order of this Court in Crl.RP.219/1981 in the case of Kempaiah vs. State of Karnataka dated 24.03.1982.
vi. Order of this Court in Crl.P.6520/2014 in the case of Sri Rustom Kerawala vs. State of Karnataka
7. Per contra, learned HCGP has submitted that sofar as proceedings under Section 107 of Cr.P.C. are concerned, there was an opportunity to the petitioner to appear before the Taluka Executive Magistrate in response to the show cause notice and he ought to have shown the cause, which he has not done in this case. Therefore, when the petitioner failed to appear before the Taluka Executive Magistrate in response to the show cause notice, the Taluka Executive Magistrate proceeded to initiate the proceedings under Section 107 of Cr.P.C., hence, there is no illegality committed by the Taluka Executive Magistrate in initiating such proceedings. With regard to the : 10 : externment proceedings initiated by Police authorities invoking Section 56G of Karnataka Police Act is concerned, it is on the basis of the report and studying the criminal antecedents of the petitioner involving in causing disturbance for peace and tranquility in the society. It is also his contention that regarding the action taken for placing the name of the petitioner in the rowdy sheeter list is concerned, appeal is maintainable under Karnataka Police Act and Manual. Hence, when such efficacious remedy is available, the petition invoking Article 226 and 227 of Constitution of India and Section 482 of Cr.P.C. is not at all maintainable.
8. I have perused the grounds urged in the petition, documents produced by the petitioner along with the petition, so also, the decisions, relied upon by the learned counsel for the petitioner, which are referred above.
9. Perusing the materials placed before me, when it is the case of the prosecution that Police submitted the : 11 : report before the Taluka Executive Magistrate, who after considering the report ought to have passed the order under Section 111 of Cr.P.C., but without passing such order, the Taluka Executive Magistrate has proceeded with the matter directly issuing show cause notice to the petitioner to show the cause as to why he should not be directed to execute the bond for keeping peace in the society for a period of one year.
10. When the Taluka Executive Magistrate has not taken a decision to pass the order under Section 111 of Cr.P.C., proceeding to pass such order directly to issue show cause notice is not sustainable in law. Therefore, the proceedings initiated under Section 107 of Cr.P.C. are not legal and valid, hence, to that extent the petitioner has made out a case for allowing the petition for quashing the proceedings initiated by the Taluka Executive Magistrate.
11. Sofar the second relief is concerned, as submitted by the learned HCGP that there is a provision for appeal against the said order, without exhausting the : 12 : remedy and when the statute itself provides appeal, without taking recourse of the said provision, the petition filed either under Article 226 and 227 of Constitution of India, which is an extraordinary remedy or maintaining the petition under Section 482 of Cr.P.C., is not at all maintainable.
12. Therefore, the petitioner has to take steps to challenge the said order by preferring the appeal, without doing so, he cannot seek such remedy at the hands of this Court invoking Section 482 of Cr.P.C. Hence, with regard to the petitioner challenging the order passed by the Police Authorities placing his name in the rowdy sheeter list is concerned, the petitioner has not made out a case to allow the petition.
13. It is submitted by the learned counsel for the petitioner that the order made by the Police authorities by invoking Section 58 of K.P.Act is not an appealable order, but looking to the materials placed before me, they show that placing the name of the petitioner in the rowdy : 13 : sheeter list is an appealable order. Hence, petitioner has to exhaust the remedy by preferring the appeal without which he cannot maintain the present petition. Therefore, sofar as second relief sought in the petition, there is no case made out by the petitioner. Hence, I proceed to pass the following :
ORDER:
i. Petition is allowed-in-part.
ii. Registering of the case by the order
dated 06.09.2016 passed by the Taluka
Executive Magistrate invoking Section 107 of Cr.P.C. is hereby quashed.
iii. The prayer for quashing of impugned notice dated 07.09.2016 as per Annexure-E is rejected.
Sd/-
JUDGE CKK/BSR