Karnataka High Court
M Maluru Es En Krishnaiah Setty vs State Of Karnataka on 10 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4135 OF 2023
BETWEEN:
M.MALURU ES EN KRISHNAIAH SETTY
S/O SHIVARAPATNA NARAYANA SETTY
OCC: EX-MLA, NOW AGRICULTURIST
AND BUSINESSMAN
AGED ABOUT 63 YEARS
R/AT NO.50, 10TH MAIN, 17TH CROSS
MALLESHWARAM, BENGALURU - 55.
AMENDED VIDE COURT ORDER DATED 02.06.2023
... PETITIONER
(BY MS. KEERTHANA NAGARAJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THE POLICE OF
MALLESHWARAM POLICE STATION
BENGALURU CITY - 560 003
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2
2. SRI LAKSHMANAPPA C. V.,
S/O NOT KNOWN
AGED ABOUT 50 YEARS
OCC: STATE GOVT. EMPLOYEE
FLYING SQUAD TEAM-05
NO.157, BWSSB, 3RD MAIN
MALLESHWARAM
BENGALURU - 560 003.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASHING THE FIR DATED 01.04.2023 VIDE
ANNEXURE-B NEW IN CR.NO.1125/2023 IN CR.NO.65/2023 OF
MALLESWARAM P.S., REGISTERED FOR THE OFFENCE P/U/S 171(E)
OF IPC, PENDING ON THE FILE OF LD. 42ND ACMM, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is knocking at the doors of this Court calling in
question registration of a crime in Crime No.1125 of 2023
registered for offence punishable under Section 171E of the IPC and
pending before the XLII Additional Chief Metropolitan Magistrate,
Bengaluru.
3
2. Heard Kum.Keerthana Nagaraj, learned counsel appearing
for the petitioner and Sri B.N.Jagadeesha, learned Additional
Special Public Prosecutor appearing for the respondents.
3. The facts, in brief, germane are as follows:-
The 1st respondent around 2.30 p.m. conducts a search in the
house of the petitioner. At about 6.30 p.m. the 2nd respondent/
Member of Flying Squad appointed for the purpose of conduct of
searches in connection with the then ensuing Karnataka Legislative
Assembly elections, registers a complaint against the petitioner
alleging offence punishable under Section 171E of the IPC. The 1st
respondent itself registers a non-cognizable report and presented
the same before the learned Magistrate. The learned Magistrate on
presentation of a non-cognizable report, as the offence alleged was
under Section 171E of the IPC, permits registration of crime in
terms of sub-section (2) of Section 155 of the Cr.P.C.. It then
becomes a crime in Crime No.65 of 2023 which is now numbered as
Crime No.1125 of 2023 for the aforesaid offence. The registration
4
of crime is what has driven the petitioner to this Court in the
subject petition.
4. The learned counsel for the petitioner Kum. Keerthana
Nagaraj would submit that the offence under Section 171E of the
IPC is non-cognizable and, therefore, the jurisdictional Police ought
to have referred the informant to the Magistrate and jurisdictional
police themselves have not sought permission to register the crime.
This is the procedural violation that the petitioner projects. She
would place reliance upon the judgment of the coordinate Bench of
this Court in B.S. YEDIYURAPPA v. STATE OF KARNATAKA -
(2020) 4 KCCR 2649.
5. Per contra, the learned Additional State Public Prosecutor
would refute the submissions by placing reliance upon the judgment
rendered by this Court in VIJESH PILLAI v. STATE OF
KARNATAKA - 2023 SCC OnLine KAR 32 wherein it is held that
either the informant or the Station House Officer can seek
permission to register the crime and it need not be the informant
alone. In that light he would submit that the permission granted by
5
the learned Magistrate at the instance of the 1st respondent cannot
be invalidated. He would submit, even on merits of the matter that
Section 171E of the IPC is found in the case at hand.
6. The learned counsel for the petitioner would join issue in
contending that there are no ingredients of Section 171E of the IPC
found in the case at hand. Therefore, even on merits of the matter,
the learned counsel would seek quashment of proceedings.
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. The search
that is conducted in the house of the petitioner leads to registration
of a complaint. The complaint reads as follows:
"gÀªÀjUÉ
ಆರ ಕ ೕ ಕರು
ಮ ೇಶ ರಂ ೕ ಾ ೆ ೆಂಗಳ ರು
ಾನ ೇ,
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6
ಾA ಮತಗಳ ಆBಷCಡEಲು ಸಂಗ)GHದI JನH =ಾKಾLನುಗಳ ಕು ತು
ದೂರು =ಾಖ H @ಾನೂನು ಕ)ಮವGಸುವ ಬ"ೆO.
ಉ ೇಖ: J<ಾಂಕ: 01-04-2023 ರಂದು ಸದ ಸYಳ@ೆZ &ೇ8 ೕA JನH
=ಾKಾLನುಗಳನು[ ಪ 4ೕ Hರುವ \ೕ ೆ"ೆ.
****
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ಚು<ಾವ ಾ#@ಾ ಯವ ಂದ ರ?ತcಾdರುವ Model code of Conduct (MCC) @ಾಯ3@ೆZ
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<ೋaೆh ಅ#@ಾ ಗಳ <ೇತೃತ ದ ಮ ೇಶ ರಂ ೕ ಾ ೆಯ ಇnopೆಕ9q ರವ ೊಂJ"ೆ
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50 ರ ಮ<ೆಯ ಖುದುI ಪ 4ೕ ಸ ಾtತು. ಸYಳದ ಲ'ಾಂತರ ರೂpಾt ೆ ೆ ಾಳlವ JನH
=ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವiದು ಕಂಡುಬಂJರುತL=ೆ. =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವiದ@ೆZ
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=ಾಖ ೆಗಳನು[ <ೋaೆh ಅ#@ಾ ಗk"ೆ uಾಜರುಪAHರುವiJಲ.
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ಅಕ)ಮcಾd ಸಂಗ)GHರುವiದು ಪ),ಾ ಪ)b # @ಾwI ಮತುL ಐ-H ಕಲಂಗಳನು[
ಉಲಂyHದಂ^ಾdರುವiದ ಂದ ಈ =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವವರ ರುದ{ ಪ),ಾ ಪ)b # @ಾwI
uಾಗೂ ಐ.-.H. @ಾwI ಪ)@ಾರ @ಾನೂನು ಕ)ಮವGಸಲು ಈ ಮೂಲಕ @ೋ =ೆ
¸À»/-
[4)ೕ H ಲ }ಣಪ•]
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pಾಡ3 ನಂ: 76, "ಾtb) ನಗರ,"
7
The crux of the complaint is that in the house of the petitioner, he
had stored illegal ration worth several lakhs of rupees, for which the
petitioner failed to produce any documents. It is alleged that the
grains was stored for distribution during the elections, to woo the
voters. Based upon the said complaint, permission is sought from
the hands of the learned Magistrate. Permission is granted for
registration of crime.
9. The issue whether the informant has to go to the learned
Magistrate to seek permission or the Station House Officer need not
be gone into, as in the opinion of the Court, the offence under
Section 171E is not even attracted in the case at hand. Section
171E of the IPC reads as follows:
"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."
8
For an offence to become punishable under Section 171E of the IPC
which is the punishment for bribery, the ingredients as necessary
under Section 171B are required to be present. Section 171B of
the IPC reads as follows:
"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 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 171B mandates that any person who gives gratification to
any person with an object of inducing any other person to exercise
electoral right or any person accepts either for himself or for other
9
person any gratification is said to be committing the offence of
bribe.
10. What is found in the case at hand is not distribution of
ration by the petitioner but stock of ration. This, unless the
petitioner is caught distributing or anybody else receiving such
distribution of ration, would not attract the ingredients of Section
171B of the IPC for it to become an offence under Section 171E of
the IPC.
11. This Court in the case of SHRI YUVARAJ v. THE STATE
OF KARNATAKA1, held as follows:
".... .... ....
3. The learned counsel for the petitioner 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.1560/2024, disposed of on 05.04.2024, wherein the
co-ordinate Bench of this Court has held as follows:
"2. Learned counsel for the Petitioner vehemently
argues that the proceedings are liable to be voided
because:
1
Crl.P.No.7180 of 2024 dated 08.08.2024
10
i) What all has been alleged in the
FIR/Charge Sheet do not disclose
commission of any offence and the
ingredients of the alleged offences are
lacking; therefore, the matter would fit
into one of the postulates in STATE OF
HARYANA vs CHOWDHARY BHAJAN LAL,
AIR 1992 SC 604 which has been
reiterated in M/S NEEHARIKA
INFRASTRUCTURES PVT. LTD. Vs. STATE
OF MAHARASHTRA AND OTHERS, 2021
SCC OnLine 315.
ii) The order of the learned Magistrate which
grants permission which occurs at page
No.33 of the PETITION is as cryptic as can
be and further it does not disclose any
application of mind nor it is reasoned.
3. Learned Addl. SPP appearing for the
Respondent - State vehemently opposes the Petition
contending that by looking to the entire material of
charge Sheet filed by the police after investigation, it
cannot be said that the proceedings are unsustainable.
If petitioner faces the trial, no prejudice would be
caused to her and that the same would do justice to
herself and to the public interest. Even otherwise,
petitioner can tap the provisions for discharge or the
like, at the hands of learned Magistrate himself, instead
of pressing this petition. So contending, he seeks
dismissal of the Writ Petition.
4. Having heard the learned counsel for the
parties and having perused the Petition papers,
this Court is inclined to grant indulgence in the
matter for the following reasons:
(a) Chapter IXA came to be added to the
statute book namely IPC, 1860 by way of
amendment, with intent to bring purity in election
process. It seeks to make punishable under the
ordinary penal law, bribery, undue influence &
personation, and certain other malpractices at
elections not only to the Legislative bodies, but
also to membership of public authorities where the
law prescribes a method of election. Further, it
11
intends to debar persons guilty of malpractices
from holding positions of public responsibility for a
specific period. This chapter has to be read along
with the relevant provisions of the Representation
of People Act, 1951 as it contains additional
penalties for certain offences, e.g., sections 171E
to 171F of this Code. Thus a conviction under
section 171E or section 171F of IPC amounts to a
disqualification u/s.8 of RP Act, 1951. This chapter
comprises of both a dictionary clause and penal
provisions.
(b) The offence of bribery is defined under
Section 171B of IPC as under:
"171B. 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 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"
This section defines bribery as an electoral
offence, primarily as the giving or accepting of a
12
gratification either as a motive or as a reward to
any person, either to induce him to stand, or not to
stand as, or to withdraw from being a candidate or
to vote or refrain from voting at an election. In
terms of sub-section (2) inter alia it includes
offers or agreements to offer and attempt to
procure a gratification. "Gratification" is explained
in section 161 as not being restricted to only
pecuniary things. Section 171-B(1)(i) provides
that if gratification is given to any person inducing
him or any other person to exercise any electoral
right, it amounts to commission of the offence of
bribery.
c) In the above backdrop, let me examine
the penal provision namely Section 171(E) of IPC
which reads as under:
"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."
In order to fit into the definition of 'bribery'
the requirement is that there should be a person
who gives or at least offers to give any
gratification as a reward for exercising the
electoral right or for having exercised such a right,
by another person. Thus, there should be minimum
two persons involved in the act, namely one who
bribes or offers to bribe and the other who is
bribed or offered bribe.
(d) Added to the above, it is not the case of
respondents that the alleged act has been done by
the person concerned for and on behalf of the
petitioner herein. To put it succinctly, what
emerges from the complaint is that a particular
person was carrying the money and that the same
has been seized since it was suspected to be used
for electoral offences. All that does not amount to
the offence of bribery, even if the allegations are
taken at their face value, and therefore there is no
13
scope for invoking section 171(E) of IPC, as rightly
submitted by learned counsel for the petitioner.
e) The next allegation in the complaint
relates to the offence punishable under section 133 of
the Representation of People Act, 1951. The same reads
as under:
"Penalty for illegal hiring or procuring
of conveyance at elections.--If any person is
guilty of any such corrupt practice as is
specified in clause (5) of section 123 at or in
connection with an election, he shall be
punishable with imprisonment which may
extend to three months and with fine."
The above penal provision in turn refers to a corrupt
practice as is specified inter alia in clause 5 of section
123 at or in connection with an election. Section 123
deals with certain acts as corrupt practices. Sub-
section(5) specifies one of them, with the following text:
"(5) The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel by a candidate or his
agent or by any other person [with the consent of a
candidate or his election agent] [or the use of such
vehicle or vessel for the free conveyance] of any elector
(other than the candidate himself the members of his
family or his agent) to or from any polling station
provided under section 25 or a place fixed under sub-
section (1) of section 29 for the poll"
Employing the vehicle or vessel as contemplated in the
above provision, is a sine qua non for the invocation of
section 133. It is nobody's case that something of the
kind exists in the allegations leveled against the person
concerned and more particularly, the petitioner herein.
In the absence of ingredients as specified in section
123(5),one would be miles away from the precincts of
section 133of 1951 Act.
In the above circumstances, this petition
succeeds. The proceedings in Crime No.52/2023 of
Nipani Town Police Station, now pending in
14
CC No.2990/2023 on the file of learned JMFC, Nipani, for
the offences punishable under sections 120(1) & 133 of
Representation of People Act, 1951 and also for the
offence punishable under Section 171(E) of IPC, 1860
are hereby quashed. Petitioner is set free of the subject
case."
4. In the light of the order passed by the
Co-ordinate Bench of this Court (supra) and for the reasons
aforementioned, the following:
ORDER
i) The Criminal Petition is allowed.
ii) The proceedings in C.C.No.2990/2023 pending on the file of the Additional Civil Judge and J.M.F.C., Court, Nipani, qua the petitioner, stand quashed."
(Emphasis in original)
12. In light of the issue standing covered by the order passed by this Court (supra) and on finding no ingredient of Section 171E of IPC being attracted in the case at hand, the crime registered against the petitioner is rendered unsustainable. The unsustainability, leads to its obliteration.
13. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.15
(ii) Crime registered in Crime No.1125 of 2023 (Old No.65 of 2023) by the Malleswaram Police Station, Bengaluru and pending before the XLII Additional Chief Metropolitan Magistrate, Bengaluru stands quashed.
Sd/-
____________________ JUSTICE M.NAGAPRASANNA Bkp CT:SS