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Karnataka High Court · body

2019 DIGILAW 137 (KAR)

DEVENDRA BHIMAPPA NAIK v. STATE OF KARNATAKA

2019-01-10

H.P.SANDESH

body2019
JUDGMENT H.P. SANDESH, J. 1. Though this matter is listed for admission today, it is taken up for final hearing with the consent of both the counsel. 2. I have heard the arguments of the petitioner's counsel and also the learned Addl. SPP for respondent No.1. Respondent No.2 though served did not choose to appear before this Court or to engage the counsel. 3. The factual matrix of the case is that this petitioner who was contested in the election and came to inspection bungalow on 17/12/2015 and without obtaining permission held a press meet, which was not permitted under law because of code of conduct was in force. Hence, the case has been registered against this petitioner for the offence punishable under Section 171F and 188D of IPC and the investigation has been conducted and collected the material and filed a charge sheet against this petitioner for the same offences. 4. The petitioner in this petition has contended that he is a retired K.A.S. Officer and law abiding citizen and he known the consequences and fully aware about the code of conduct and the procedure of elections. It is totally impossible even at a stretch of imagination that he has committed the offences. Further contended moreover strict code of conduct is not applicable in the MLC election and it is only in general elections. There is no code of conduct declared by the authority in the said MLC election and no necessity of permission to hold the meeting. It is further contended that CW-4 was on duty on 17/12/2015, and he was Choukidar and the police recorded his statement and he has narrated in this statement that he went to lunch at about 1.30 p.m. and when he left the place, nobody was there in the inspection bungalow and after having the lunch, he returned to his duty, he learnt that the petitioner held a press meet in the inspection bungalow and the same came to his knowledge when the higher officer one Rudrapur has informed the same to him. It is contended that he has not lodged any complaint, only he came to know about the same through the higher authority. It is contended that he has not lodged any complaint, only he came to know about the same through the higher authority. Under the circumstances, detailed enquiry is required, but, without any basis, the police have registered the case and investigated the matter and submitted the charge sheet and hence, the initiation of proceedings against the petitioner has to be quashed. 5. The counsel appearing for the petitioner in his argument vehemently contends that the statement of Choukidar is clear that it is a hearsay statement and only he comes to know the same through his higher officer and he was not present and based on the hearsay evidence, the proceedings cannot be continued agianst this petitioner and prayed this Court to allow the petition and quash the proceedings. 6. Per contra, the learned Addl. SPP in his arguments, contends that not only the prosecution proceeded against this petitioner, based on the hearsay material collected and photo is also produced to show that he conducted the press meet in the inspection bungalow and all these aspects has to be tested in trail and this Court cannot exercise the powers under Section 482 of Cr.P.C. and the scope of 482 is very limited, if any proceedings amounts to abuse of process and miscarriage of justice and then only the Court exercise the powers under Section 482 of Cr.P.C. and there are ample materials to proceed against the petitioner and hence, prayed this Curt to dismissed the petition. 7. Having heard the petitioner's counsel and also the learned Addl. SPP, this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. 8. The main allegation against the petitioner is that he has conducted the press meet in the inspection bungalow without obtaining the permission and he has violated the code of conduct and hence, offence under Section 171 F and 188 D of IPC are invoked against this petitioner. The main contention of the petitioner is that CW-4 who was Choukidar (Sepoy) in his statement he stated that he went to lunch at around 1.30 p.m. and when he came to know that a press meet was conducted and the same was informed to him by his higher officer and hence, the proceedings cannot be continued against the this petitioner. 9. On the other hand, the Addl. 9. On the other hand, the Addl. SPP also brought to notice of this Court by placing the photo, stating that a prosecution has not only relied upon the statement of Choukidar (Sepoy) and photo which clearly disclose that a press meet was conducted in the inspection bungalow. When the photo is annexed along with the charge sheet and statement of witnesses also recorded and the same has to be tested in trial only and the police have conduced investigation and filed the charge sheet and the Assistant Engineer also in his letter dated 17/12/2015 has stated that in the Inspection bungalow without any permission a press meet was conducted by this petitioner and the said document also has to be tested in the trial only and when the investigation has been completed and the charge sheet has been filed and the Court below also while taking the cognizance passed an order stating that perused the prosecution papers and there are sufficient grounds and prima face case has been made out to proceed against the petitioner and accordingly, cognizance was taken for the offences punishable under Sections 171F and 188 of IPC. When the Court below also applied its judicial mind taking cognizance and proceeding against the petitioner and also the material placed along with the charge sheet disclose that a press meet was conducted and prima facie material discloses that the alleged offences are taken place without the permission and the petitioner also not produced any document to show that he has taken permission to conduct the press meet when the election was declared and he has violated the code of conduct. Hence, it is not a fit case to exercise the powers under Section 482 of Cr.P.C. to quash the proceedings initiated against this petitioner. If it quashed, it amounts to exercise the powers of the original Court and Section 482 of Cr.P.C. is only an exception and not a rule and only to see whether any miscarriage of justice has been occurred and if it is not, then the scope of Section 482 is limited. 10. In view of the discussions made above, I pass the following: ORDER The petition is dismissed.