Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1093 (KAR)

Manappa D. Vajjal v. State of Karnataka

2022-08-22

P.N.DESAI

body2022
JUDGMENT P.N. Desai, J. - This petition is filed under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') praying to quash the complaint, FIR and filing of charge sheet in Lingasugur police station in Crime No. 127/2018 for the offences punishable under Sections 171H and 188 of Indian Penal Code (fort short 'IPC') and Section 7 of the Religious Institutions (Prevention of Misuse) Act (for short 'R.I. Act') and Section 109 of Karnataka Police Act, 1963, (for short 'K.P. Act') pending on the file of Prl. Civil Judge (Jr. Dn) and JMFC at Lingasugur, Dist: Raichur. 2. It is contended that on 01.04.2018 at 01.20 p.m. the petitioner has violated the code of conduct by holding a meeting during the election thereby committed the aforesaid offences. On the basis of complaint lodged by one Shankarmurthi flying squad for election, this complaint came to be registered. Thereafter, the police after investigation have filed the charge sheet. Aggrieved by the same, the petitioner has filed this petition. 3. Heard Sri. Shivanand V. Pattanashetti, learned counsel for the petitioner and Sri. Veeranagouda Malipatil, the learned High Court Government Pleader for the respondent-State. 4. The learned counsel for the petitioner argued that the continuation of the proceedings for the offences punishable under Sections 171H and 188 of IPC and Section 7 of R.I. Act and Section 109 of K.P. Act, is illegal. It is further contended that in view of Section 195 of Cr.P.C. the Court cannot take cognizance of these offences unless a public servant files a private complaint under Section 200 of Cr.P.C. Therefore, filing of charge sheet by the police is illegal. Further, invoking provision 7 of the R.I. Act, was not called for, as on bare reading of Section 7 of the Act, would clearly discloses that for contravention of Sections 3, 4, 5 and 6 of the R.I. Act, it is the manager and every person connected with such Religious Institution who would be liable to be punished. Section 171H of IPC and Section 109 of K.P. Act, are all non-cognizable offences. The police cannot investigate without permission of the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, initiation of proceedings is against the abuse of process of law. Hence, the learned counsel for the petitioner prays to allow the petition. 5. Section 171H of IPC and Section 109 of K.P. Act, are all non-cognizable offences. The police cannot investigate without permission of the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, initiation of proceedings is against the abuse of process of law. Hence, the learned counsel for the petitioner prays to allow the petition. 5. Against this, the learned High Court Government Pleader argued that the Magistrate has properly issued summons and there are materials to show that the petitioner has committed offences as stated above. Hence, he prays to dismiss the petition. 6. I have perused the complaint lodged by the said squad. It is stated that when he heard that election meeting was going on, he went to the said spot and found that there was nobody present i.e., neither this petitioner nor his supporters at the spot. He enquired the other persons and some have told that no meeting was held and some persons told that meeting was held. Therefore, he lodged the complaint stating that by the side of the Temple the meeting was held. I have perused the statements of the witnesses, which does not indicate anything against the petitioner. The statements of witnesses are all hearsay. The statements does not show where they were present, how they have seen any such meeting and how they are deposing is also not forthcoming. Further the place of incident as per panchanama shows that it is a public place. The Temple is on the western side and it is clearly mentioned that place of incident is a public place. Therefore, how the ingredients of R.I. Act are attracted is also not forthcoming. 7. It is evident that there is no whisper about any such meeting held by the petitioner in the premises of the Temple. There is no material to show that this petitioner has solicited votes in any such meeting. 8. The Coordinate Bench of this Court in Crl.P. No. 2077/2019 dated 22.04.2019 in the case of Devananda s/o. Pulasinga Chowhan and another vs. State of Karnataka and another, has discussed the said aspect, wherein there was a meeting in a Mahalaxmi Temple and some persons solicited votes from the members who had gathered at the Temple. But here in this case there is no such allegation of soliciting any vote for anybody or for on party or making propaganda in respect of any political party. But here in this case there is no such allegation of soliciting any vote for anybody or for on party or making propaganda in respect of any political party. It is relevant to refer Para No. 5 of Crl.P. No. 2077/2019 dated 22.04.2019 in the case of Devananda s/o. Pulasinga Chowhan and another vs. State of Karnataka and another which reads as under:- "5. At the outset it requires to be noticed the very invoking of Section 7 of Religious Institutions (Prevention of Misuse) Act, 1988, by prosecution was not called for, inasmuch as bare reading of Section 7 of the Act would clearly disclose that for contravention of Sections 3, 4, 5 and 6 of the Act, it is the manager and every person connected with such Religious institution who would be liable to be punished with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. It is not the case of prosecution that petitioners herein were persons incharge of religious institution or in otherwords connected to religious institution. Hence, continuation of proceedings for the said offence against petitioners would definitely be contrary to the provisions of the Act. Insofar as invoking of Section 171F of IPC against petitioners is concerned, when read with conjunction with allegation made in the complaint, same would disclose that petitioners had not solicited the votes but on the other hand it is alleged that a third party had announced one mike seeking vote on behalf of first petitioner and said person is said to have one Sri. Lakkur Wodeyar, who has not been cited as witness in charge sheet or as an accused. Hence, continuation of proceedings against petitioners for the alleged offence punishable under Section 171F of IPC would not be justifiable and even if prosecution is taken to its logical end it would not end in conviction of the accused and thereby directing the petitioners undergone the ordeal of trial would definitely be abuse of process of law." 9. Further, the Coordinate Bench of this Court in Crl.P. No. 15853/2013 dated 09.07.2019 in the case of Shivangouda Naik s/o. Hanmanthraya vs. The State of Karnataka, discussed the applicability of provisions of Section 188 of IPC at Para No. 14 which reads as under:- "14. Further, the Coordinate Bench of this Court in Crl.P. No. 15853/2013 dated 09.07.2019 in the case of Shivangouda Naik s/o. Hanmanthraya vs. The State of Karnataka, discussed the applicability of provisions of Section 188 of IPC at Para No. 14 which reads as under:- "14. In the case on hand, the records disclose that on the basis of the complaint filed by the Government official who was present at the polling booth, the respondent police have registered the FIR. But, the same is not in accordance with law. Admittedly, the complainant being a public servant has lodged a complaint before the police instead of filing it before the jurisdictional Magistrate. The allegations made in the complaint do not attract the ingredients of Section 130 of Representation of People Act, 1951, as there are no specific allegations about canvassing nearing the polling station. Therefore, initiation of proceedings on the basis of the complaint filed before the police by the election officer is contrary to law and procedure prescribed." 10. Admittedly, in this case the charge-sheet has been filed by the Lingasugur Police Station, which is not permissible in view of Bar under Section 195(1) of Cr.P.C. Therefore, taking such cognizance is bad in law. Apart from that absolutely, there is no material to show that there is contravention of Section 7 of the R.I. Act, against the petitioner. In view of the decision referred above and material placed before the Court, at this stage there is nothing to show that the said Section is applicable to the petitioner. 11. Further it is settled principle of law that if offences are non-cognizable, then the Investigating Officer has to take permission from the Magistrate. The Coordinate Bench of this Court in Criminal Petition No. 101997/2019 dated 10.12.2019 in the case of Vaggeppa Gurulinga Jangaligi vs. The State of Karnataka, has referred the Criminal Procedure Code and in Paras Nos. 18 and 19 has observed as under:- 18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our judicial Magistrates as to how they have to approach and pass orders when requisition is submitted by the SHO of police station seeking permission to investigate into the non-cognizable offence. 18 and 19 has observed as under:- 18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our judicial Magistrates as to how they have to approach and pass orders when requisition is submitted by the SHO of police station seeking permission to investigate into the non-cognizable offence. The provision of Section 155(1) and (2) of Cr.P.C. referred above make it very much clear that the SHO of the police station on receiving the information regarding the commission of non-cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155(1) of Cr.P.C. Once the requisition is submitted to the Magistrate, it is for the jurisdictional Magistrate to consider the requisition submitted by the SHO of police station and pass necessary order either permitting the police officer to take up the investigation or reject the requisition. Section 155(2) of Cr.P.C. specifically provides that no police officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an "order" by the Magistrate permitting the police officer to investigate the non-cognizable offence is an important factor. The word without the order of the Magistrate appearing in Subsection (2) of Section 155 of Cr.P.C. makes it clear that the Magistrate has to pass an 'order' which means supported by reasons. On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word 'permitted' on the requisition submitted by the police itself which does not satisfy the requirement of Section 155(2) of Cr.P.C. such an endorsement cannot be equated with the word 'Orde'. 19. Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:- "INVESTIGATION AND PROSECUTION" 1. Report under Section 154-(1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam. 2. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam. 2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted." 12. I have also perused the order sheet. It does not discloses for what offence the learned Magistrate the cognizance has been taken and for which offence the summons is issued. There is a format of order sheet wherein the name of police station and name of accused is shown and the criminal case for the offence punishable under Section 171H and 188 of IPC is shown. There is nothing on record to show that whether charge sheet is filed, if so when it is filed. On 11.03.2019 straightaway summons came to be issued. The order sheet shows that the learned JMFC has not at all applied his mind to the nature of allegations and the complaint filed or perused any records. 13. It is the duty of the Court when any charge sheet is filed before the Court to direct the Sherestedar to verify, check and put up. Thereafter, on perusing the police report and material, if it discloses any cognizable offence then the Court has to take cognizance and then issue summons. There is no noting in this regard as to what the Magistrate has done. There is also no record to show that any permission was sought by the police for investigation. 14. Therefore, as the statement of complaint itself discloses that he is not certain as to whether any such meeting was held or not, the place of incident is a public place. The statements of witnesses does not discloses commission of the offences. It is a non-cognizable offence and police have not at all taken permission to investigate the matter. Therefore, the continuation of the proceedings against the petitioner for the alleged offence as stated above is not justifiable. Therefore, directing the petitioner to face trial is nothing but abuse of process of law. 15. Further keeping in view the decision of the Hon'ble Supreme Court in the case of Neeharika Infrastructure Private Limited Vs. Therefore, the continuation of the proceedings against the petitioner for the alleged offence as stated above is not justifiable. Therefore, directing the petitioner to face trial is nothing but abuse of process of law. 15. Further keeping in view the decision of the Hon'ble Supreme Court in the case of Neeharika Infrastructure Private Limited Vs. State of Maharashtra and others, reported in (2020) 10 SCC 118 , the petitioner has made out grounds for allowing the petition. Accordingly, I proceed to pass the following: ORDER 1. The petition filed under Section 482 of Cr.P.C. is allowed. 2. The proceedings of complaint, FIR and charge sheet in Lingasugur Police Station Crime No. 127/2018 for the offences punishable under Section 171H, 188 of Indian Penal Code and Section 7 of Religious Institutions (Prevention of Misuse) Act and Section 100 of Karnataka Police Act, 1963, pending on the file of Prl. Civil Judge (Jr. Dn) and JMFC at Lingasugur Dist: Raichur, is hereby quashed.