Karnataka High Court
D K Shivakumar vs State Of Karnataka on 9 June, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:19845
CRL.P No. 3329 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 3329 OF 2023
BETWEEN:
D.K.SHIVAKUMAR,
S/O D.K.KEMPEGOWDA,
AGED ABOUT 59 YEARS,
KPCC PRESIDENT
CONGRESS BHAVAN, NO.14
QUEENS ROAD
BENGALURU - 560 052.
...PETITIONER
(BY SRI. ARNAV A.BAGALWADI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH UPPARPETE P.S.,
Digitally signed
by PADMAVATHI REPRESENTED BY SPP OFFICE,
BK HIGH COURT OF KARNATAKA,
Location: HIGH BENGALURU - 560 001.
COURT OF
KARNATAKA
2. NARAYANI
FATHER NAME NOT KNOWN
AGE NOT KNOWN
POLICE SUB -INSPECTOR
UPPARPETE P.S.,
KARNATAKA.
...RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP. FOR R-1)
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NC: 2023:KHC:19845
CRL.P No. 3329 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE PRIVATE COMPLAINT IN
PCR.NO.11/2021 DATED 04.02.2021, THE ORDER OF
COGNIZANCE DATED 23.11.2021 IN PCR.NO.11/2021 AND ALL
FURTHER PROCEEDINGS IN C.C.NO.32628/2021 PRODUCED AS
ANNEXURE-A, B AND C PENDING ON THE FILE OF XLII
ADDL.C.M.M., BENGALURU FOR THE OFFENCE P/U/S 269 OF
IPC AND SECTION 51-B OF DISASTER MANAGEMENT ACT.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.32628/2021, which arose out of the a private complaint in P.C.R.No.11/2021, registered on 20.01.2021, pending before the 42nd ACMM, Bengaluru, for the offences under Section 269 of the IPC and Section 51(b) of the Disaster Management Act, 2005.
2. Heard Sri Arnav A.Bagalwadi, learned counsel for petitioner and Sri Mahesh Shetty, learned High Court Government Pleader for respondent No.1.
3. The brief facts of the case germane for consideration of the lis, as borne out from the pleadings are as follows:
On 21.01.2021, the petitioner along with others had staged a Dharna from the City Railway Station to Freedom Park -3- NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 and was accompanied by several hundreds of people. Despite existence of standard operating procedure apart guidelines and norms issued by the Government on the onset of COVID - 19.
On 23.11.2021, the learned Magistrate takes cognizance of the offences and registers a case in C.C.No.32628/2021 against the petitioner for offences under Section 269 of the IPC and Section 51(b) of the Disaster Management Act, 2005.
4. Learned counsel for the petitioner submits that the issue in the lis stands covered by the order of this Court in Crl.P.No.100332/2022, disposed on 07.02.2022, wherein this Court has considered the very offences and has obliterated the proceedings against the petitioners therein and therefore, he seeks very same relief granted by this Court in the aforesaid petition.
5. Learned High Court Government Pleader would refute the submissions of the learned counsel for the petitioner to contend that the petitioner has to undergo trial and come out clean in the trial. He would admit the position of law as is laid down by this Court in the aforesaid petition - Crl.P.No.100332/2022.
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NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.
7. The afore-narrated facts are not in dispute and requires no reiteration. It is germane to notice Section 269 of the IPC and Section 51(b) of the Disaster Management Act, 2005. Section 269 of the IPC reads as under:
"269. Negligent act likely to spread infection of disease dangerous to life.--Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
Section 51(b) of the Disaster Management Act, 2005 reads as follows:
"51. Punishment for obstruction, etc.--
(a) xxxxxxx
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year -5- NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act.
The clauses also provide for penalties for these offences."
Section 269 of the IPC makes one guilty of the offence, if by unlawful or negligent act of any person, results in likelihood of spread of infection of certain diseases, which is dangerous to life. There is no allegation of the kind against the petitioner as is indicated in Section 269 of the IPC that, due to such an act of the petitioner, there was spreading of disease. The issue in the case at hand need not detain this Court or delve deep into the matter as the issue is covered by the order rendered by this Court in Crl.P.No.100332/2022 disposed on 07.02.2022, which covers the issue on all its fours. This Court in the said petition has held as follows:
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NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 "3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows:
On receipt of credible information of the alleged incident by the complainant-Police Inspector, during his patrolling duty, that some unknown persons were playing cards by violating pandemic lockdown restriction, a raid was conducted and several articles were seized and accordingly, complaint was registered for offences punishable under Sections 188, 269 and Section 80 of the Karnataka Police Act. The police after investigation have filed charge sheet dropping section 188 of IPC, but retaining Section 269 of IPC and Section 80 of the Karnataka Police Act. It is at that juncture, the petitioners have knocked the doors of this Court.
4. The issue with regard to registration of the offences as aforesaid under Section 269 of IPC and Section 80 of the Karnataka Police Act need not detain this Court or delve deep into the matter, as the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court in the case of Mr.Vishwesh Madane V/s. The State of Karnataka, Tarikeri Police Station in Crl.P.NO.5185/2021 disposed on 19.07.2021 has held as follows:
"7. The complainant on receipt of credible information has lodged a complaint, which has resulted in registering FIR against the accused persons for the offence punishable under Section 80 of the Karnataka Police Act, 1963, Sections 269 and 271 of IPC and Section 5(1) of the Karnataka Epidemic Diseases Act, 2020.
8. Reading of the complaint averments would clearly go to show that the ingredients for the purpose of attracting Section 269 of IPC is completely absent. The petitioners were all found in a hotel room and therefore, it cannot be said that they were guilty of unlawfully or negligently doing any act which they know or they have reason to believe that it is likely to spread the infection of any disease dangerous to life. It is not the case of the prosecution that any one of the accused persons had tested Positive for COVID-19 and in the absence of any such material, the offence under -7- NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 Section 269 of IPC cannot be prima facie invoked as against the accused persons.
9. In the judgment relied upon by the learned counsel for the petitioner in Crl.A.No.453/2020 rendered by the High Court of Bombay, Nagpur Bench, it has been held that unless the ingredients, which would attract Section 269 of IPC, are found in the complainant averments, the said provision of law cannot be invoked. Further, this Court in Criminal Petition No.2089/2021 DD 08.07.2021 has held that deliberate attempt to invoke Section 269 of IPC with an intention to avoid obtaining permission under Section 155(2) of Cr.P.C. for registration of a case for non-cognizable offences cannot be permitted. Except Section 269 of IPC, the other offences invoked in the present case are all non- cognizable in nature and therefore, prior permission under Section 155(2) of Cr.P.C. is mandatory in nature. In the case on hand, such permission has not been obtained by the prosecution. Further, though it is alleged that the petitioner was indulged in a game of chance, the complaint averments do not state as to how the prosecution has come to a conclusion that the game of cards allegedly played by the petitioner was a game of chance and not a game of skill.
10. Under the circumstances, I am of the considered opinion that the prosecution has abused the process of law by registering a criminal case against the petitioner invoking the alleged offences and therefore, for the purpose of securing the ends of justice, it is necessary to quash the same. Accordingly, I proceed to pass the following;
Order This Criminal Petition is allowed. The entire proceedings in Crime NO.153/2021 registered by the Tarikere Town Police Station, Chikkamagaluru, for the offences punishable under Section 80 of the Karnataka Police Act 1963, Sections 269 and 271 of IPC and Sections 5(1) of the Karnataka Epidemic Disease Act, 2020 pending on the file of Principal -8- NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 Civil Judge (Sr.Dn.) and C.J.M., Tarikere, Chikkamagaluru, is quashed as against the petitioner.
In view of disposal of the petition, pending I.A. does not survive for consideration. Accordingly, it stands disposed of.
Earlier to the aforesaid judgment, a Co-ordinate Bench of this Court in Crl.P.No.7388/2020 disposed on 02.02.2021. has held as follows:
"7. On perusal of the FIR, case is registered against the unknown persons and the same was registered at about 04:00 p.m., after the arrest, the FIR was also sent to the Court at 05:00 p.m., Having perused the complaint, there is a 6 force in the contention of learned counsel for the petitioners that only in order to take the advantage of non- compliance of Section 155(1) and (2) or Cr.P.C., the prosecution has invoked Section 269 of IPC.
8. No doubt, there was a lock down on the date of the incident and when the credible information was received, the prosecution ought to have registered the case invoking Section 154 of Cr.P.C., It is also important to note that though raid was conducted at 3:00 PM., the FIR was registered at 4:00 p.m. further, the FIR also discloses that the case was registered against unknown persons.
9. complaint discloses that an 12.04.2020, at about 03.30 p.m. complaint and his staff went to the spot and apprehended these petitioners complainant. Material available on record are contrary to each other and hence, this is a fit case to exercise power under Section 482 of Cr.P.C., to quash the proceedings initiated against the petitioners for noncompliance of Section 155(2) of Cr.P.C., Records also disclose 7 that though cognizable offence was taken place, FIR was not registered and before registering the FIR, alleged rapid was conducted."-9-
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023 In the light of the issue standing covered by the order of this Court on all its fours, which infact followed the earlier judgment of the Co-ordinate Bench of this Court in the case of M.VISHWESH MADANE VS. THE STATE OF KARNATAKA IN CRL.P.NO.5185/2021 DISPOSED ON 19.07.2021.
8. For the aforesaid reasons, the following:
ORDER a. The criminal petition is allowed.
b. The proceedings in C.C.No.32628/2021, pending before the 42nd ACMM, Bengaluru, stand quashed.
I.A.No.1/2023 is disposed, as a consequence.
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JUDGE NVJ List No.: 1 Sl No.: 33 CT:SS