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Karnataka High Court · body

2017 DIGILAW 223 (KAR)

K. SHIVARAM BIJAPUR v. STATE OF KARNATAKA

2017-02-01

B.A.PATIL

body2017
ORDER : B.A. PATIL, J. 1. Though this matter is listed for admission today, with the consent of learned counsel for both the parties, it is taken up for final disposal. 2. This petition is filed by accused Nos. 1 to 3 under Section 482 of Cr.P.C., praying to quash the proceedings in Crime No.95/2014 of Talikoti Police Station (C.C. No.336/2015) for the offences punishable under Section 188 read with Section 34 of IPC and Section 133 of the Representation of the People Act, 1951 and 1988. 3. Brief matrix of the case of the prosecution are that on 09.04.2014 at about 5.15 p.m., when flying squad No.3 officials were watching they noticed all of a sudden petitioners who were contestant to M.P. Elections Vijayapura Constituency, without obtaining the permission, unauthorisedly came in the vehicles for canvassing and have also taken out the procession, thereby violated the conduct rules. On the basis of the said complaint, a case has been registered. 4. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State. 5. The learned counsel for the petitioners submits that the entire investigation is without jurisdiction as the said investigation is without following the procedure as contemplated in law. The Investigating Officer before commencing the investigation was obliged to take warrant from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. For not doing so, the entire investigation itself is vitiated. He also contended that the proceedings initiated by the Magistrate on the basis of baseless complaint are also a violation of the provisions established by law. On these grounds he prays for allowing the petition by quashing the said proceedings. 6. Learned High Court Government Pleader on the contrary vehemently argued and contended that the very act of participation of accused/petitioners itself indicate that there is violation of conduct rules and the mandatory provision is only irregularity and it is not the illegality, proceedings only on that ground cannot be quashed by this Court. On these grounds he prays for dismissal of the said petition. 7. I have perused the charge-sheet papers and other materials. The said materials disclose that on 09.04.2014 accused-petitioners brought some vehicles and in one of the vehicles they stood up for the purpose of canvassing about the election and also took out the procession, those vehicles were also having party's flags etc. 7. I have perused the charge-sheet papers and other materials. The said materials disclose that on 09.04.2014 accused-petitioners brought some vehicles and in one of the vehicles they stood up for the purpose of canvassing about the election and also took out the procession, those vehicles were also having party's flags etc. The said act was done by the accused-petitioners without prior permission from the Election Commission. The charge levelled against the petitioners is under Section 188 of IPC, which speaks about disobedience of order duly, promulgated by public servant. 8. For the purpose of brevity I quote Section 195 of Cr.P.C. which reads as under: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance- (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or commit, such offence, or, (ii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a proceeding in any Court, or (ii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. " 9. As could be seen from the provisions of Section 195 of Cr.P.C. the Court cannot take cognizance of the case under Section 188 of IPC unless a public servant files a complaint in writing. The said provision clearly creates a statutory bar to the Court for taking cognizance. " 9. As could be seen from the provisions of Section 195 of Cr.P.C. the Court cannot take cognizance of the case under Section 188 of IPC unless a public servant files a complaint in writing. The said provision clearly creates a statutory bar to the Court for taking cognizance. In view of the said provision, it takes away the general power of Magistrate under Section 190 of Cr.P.C. On perusal of records there is no complaint in writing lodged by the flying squad, who has been appointed to look after the Assembly Election. It also indicates that only on the report submitted by the police, after investigation the Magistrate has taken the cognizance. When registration of case itself is illegal, taking cognizance violates the proceedings under Section 195 of Cr.P.C. 10. Section 133 of the Representation of People Act., reads as under: "[133. Penalty for illegal hiring or procuring of conveyance at elections. If any person is guilty of any such corrupt practise 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.]" 11. In the absence of any material connecting these petitioners to the said vehicle there is no offence made out to penalize the petitioners under Section 133 of the Representation of People Act. The charge is purely on imaginary grounds, which is nothing but the abuse of the process of law. When there is violation of Section 195 of Cr.P.C. and even the ingredients of Section 133 are not satisfied, taking cognizance under such circumstance will vitiate the entire proceedings as such are liable to be quashed. 12. Keeping in view the above said facts and circumstances, the petition is allowed and the proceedings in Crime No.95/2014 of Talikoti Police Station (C.C. No.336/2015) is hereby quashed.