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Karnataka High Court · body

2020 DIGILAW 57 (KAR)

Veeresh v. State

2020-01-07

H.B.PRABHAKARA SASTRY

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JUDGMENT 1. The present second respondent in his capacity as the Head of the Flying Squad Team, Jewargi has lodged a complaint before the respondent police on 12.05.2018. 2. The summary of the said complaint is that on the said day of 12.05.2018 in the midnight at about 2.30 a.m. when he was on patrolling duty in connection with Assembly Elections in the State, noticed the present petitioner standing near the Government Urdu School in the town of Jewargi. The complainant enquired him about his identity and checked him, when he noticed that the petitioner was in possession of cash of Rs.52,050/- without any documentation supporting to the possession of the said cash. The complainant drew an inference that it is violation of the election guidelines and that he was possessing the said cash to distribute the same to the voters. As such, he summoned two panchas and drew a panchanama by seizing the said cash and brought the accused/petitioner along with cash and also panchanama to the jurisdictional police and lodged the complaint. The said complaint was registered before the respondent Police Station in Crime No.135/2018 for the offences punishable under Sections 171C, 171F and 188 of the Indian Penal Code (hereinafter for brevity referred to as IPC) and under Section 123 of Representation of People Act (hereinafter for brevity referred to as RP Act). 3. The complainant Police are said to have filed the charge sheet against the petitioner for the alleged offences. The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter for brevity referred to as Cr.P.C.) seeking quashing of the said criminal case against him. 4. The contention of the petitioner as well the argument of learned counsel for the petitioner is that even assuming for a moment that the petitioner was found in possession of said cash with him on the alleged day, still in the absence of any material to show that petitioner/accused was in possession of the said cash only to distribute the same to the voters or bribing in any manner, the alleged offences cannot be attributed. 5. 5. Per contra, the learned High Court Government Pleader in his argument submitted that as per the standard procedure issued to the Electoral Officer that an individual cannot possess a cash more than Rs.50,000/- for the purpose of election without any documentation, as such, the complainant has rightly apprehended the petitioner and a prima facie case has been made out by the complainant, which requires the police to subject him for trial. 6. A perusal of the complaint and the copy of the statement of CWs.4 and 5 filed by the petitioner along with the petition would go to show that neither in the complaint nor in the statements either the complainant or the charge sheet witnesses have stated that during the alleged enquiry with the petitioner on the alleged night of 12.05.2018 it was disclosed by the petitioner/accused that the amount found in his possession was retained by him for the purpose of distributing the same to the voters or for favouring any candidate in the election. For that matter, either the complaint or the alleged statement of CWs.4 and 5 are totally silent as to on what basis they drew an inference that the accused/petitioner has violated the code of conduct and was in possession of the said amount to distribute the same to the voters and to influence them. In the absence of any such allegation much less the material or evidence, a mere possession of some amount by an individual during time of election by itself cannot be considered as the amount was for bribing the voters and falling under Section 123 of RP Act. Even Section 171 (c) of IPC also requires that there must be either some threat or inducement or atleast an attempt to induce a candidate or voter. However, in the case on hand, neither the complaint nor the alleged statements of CWs.4 and 5 in any manner can be taken as leading any such inference that the petitioner was intended to induce anybody or had threatened anybody or atleast possessed the alleged cash to distribute the same to the voters. 7. Apart from these, the very complaint as well the statement of CWs.4 and 5 are also silent about any political allegiance or allegiance to any candidate in the election by the petitioner. 7. Apart from these, the very complaint as well the statement of CWs.4 and 5 are also silent about any political allegiance or allegiance to any candidate in the election by the petitioner. There is no whisper that the petitioner was either acting as an agent or as a party worker or atleast was in possession of any electoral material including posters, banners etc. As such, there being no whisper about any such element or atleast the allegations, merely because the petitioner since said to have found with cash which was marginally higher than the prescribed amount of Rs.50,000/- under standard operating procedure issued by the Election Commission of India under Order No.76/instructions/EEPPS/2015/Vol-II dated 29.05.2015, the same cannot be concluded as the petitioner has committed such an offence. As such, initiation of the complaint and the charge sheet since does not make out necessary ingredients to proceed further in the matter and to compel the petitioner/accused to face a full-fledged trial, the matter deserves interference by this Court by exercising the discretion under Section 482 of Cr.P.C. in quashing the criminal proceedings instituted against the petitioner. Accordingly, the petition is allowed. The C.C.No.35/2019 said to be pending in the Court of Senior Civil Judge and JMFC against the present petitioner for the offences punishable under Sections 171C, 171F and 188 of IPC and under Section 123 of RP Act stands quashed.