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2023 DIGILAW 526 (KAR)

Mahabala Kunder v. State

2023-03-29

R.NATARAJ

body2023
JUDGMENT/ORDER 1. The petitioners have challenged the proceedings initiated against them in C.C.No.912/2017 pending trial before the Principal Civil Judge and JMFC, Udupi for the offence punishable under Ss. 171(F), 353, 145 read with Sec. 149 of IPC and Ss. 26(2) and 27(2) of Karnataka Panchayath Raj Act, 1993. They have also challenged the order dtd. 25/7/2018 taking cognizance of the aforesaid offences. 2. The case of the prosecution was that a report was lodged by the Police Inspector that the accused had formed an unlawful assembly when the Election code of conduct was in force on 20/2/2016 and they forced the voters to exercise their franchise in favour of a particular candidate. When they were confronted, they all challenged the Officer in a raised voice and attempted to pounce on him. Thereafter, the Police Inspector saw two vehicles in which the voters were ferried and on seeing the Police Inspector, all of them ran away from the spot. 3. Based on such a report, the proceedings were initiated and a charge sheet was filed against the accused persons for the offences punishable under Ss. 171(C), 353 read with 149 of IPC and Ss. 130, 131 and 133 of Representation of People Act. The trial Court took cognizance of the said offences and issued process to the accused. The same was challenged before this Court in Crl.P.No.5236/2017. This Court in terms of the order dtd. 6/12/2017 held that the offences punishable under Sec. 171(C) of IPC merely define "Undue influence at Elections" which is not a penal provision and the trial Court without applying its mind took cognizance of the aforesaid offence. It also held that the election that was conducted to the Panchayath and therefore, the provision of Representation of the People Act could not be invoked. This Court therefore, quashed the order taking cognizance of the aforesaid offences against the accused and directed the Magistrate to take fresh cognizance after applying his mind to the facts and circumstances of the case. 4. After such remand, the Magistrate again considered the material on record and held that the offences punishable under Ss. 171(F), 353, 145 read with 149 of IPC and Ss. 26(2) and 27(2) of the Karnataka Panchayath Raj Act, 1993 was made out against accused Nos.1 to 11. Being aggrieved by the same, accused Nos.1 to 11 are before this Court. 5. 171(F), 353, 145 read with 149 of IPC and Ss. 26(2) and 27(2) of the Karnataka Panchayath Raj Act, 1993 was made out against accused Nos.1 to 11. Being aggrieved by the same, accused Nos.1 to 11 are before this Court. 5. Learned counsel for accused Nos.1 to 11 submitted that this Court had directed the Magistrate to apply his mind to the material provided by the Investigating Officer to ascertain whether the charge sheet for the offences punishable under Ss. 353 and 149 of IPC was justified or not. Yet, the trial Court did not apply its mind but merely took cognizance of the offences punishable under Sec. 171 (F) and the provisions of the Karnataka Panchayath Raj Act. He submitted that under Sec. 204 of Cr.P.C., the Magistrate has to apply his mind to the facts and circumstances of the case before taking cognizance and be satisfied that the investigating agency had produced enough material to substantiate filing of the charge sheet for the offences punishable under Sec. 353 of IPC. 6. Per Contra, learned HCGP submits that the code of conduct was in force and therefore, the accused persons could not have solicited votes in front of the Poling centre. He contended that all the accused had formed an unlawful assembly and were forcing to vote in favour of a particular person and when they saw the defacto complainant, they threatened him. Therefore, an offence punishable under Sec. 353 of IPC was made out. Learned HCGP has invited the attention of this Court to "Undue influence at Elections" under Sec. 171(C) and submits that the offence under Sec. 171(C) is punishable under Sec. 171(F) of IPC and the trial Court rightly took cognizance of the said offence. 7. I have considered the submissions made by learned counsel for the accused as well as learned HCGP. 8. The complaint lodged was as bald as it could be since the defacto complainant did not disclose the details of the persons, who were obstructing the voters from entering the Polling Booths and who were allegedly forced to vote in favour of a particular person. Even if the accused were found near the polling booth, that in itself would not amount to "Undue influence at Elections". Even if the accused were found near the polling booth, that in itself would not amount to "Undue influence at Elections". Even in the charge sheet except the official witnesses, there were no other witnesses who recorded their statement that the accused were restraining voters from voting or exercising their franchise in favour of a particular person. 9. A perusal of the complaint also does not disclose that how the defacto complainant was obstructed from performing his duty. As a matter of fact, the First Information Report discloses that some were ferried in two cars and they ran away after seeing the Police Inspector. However, there was no statement of any witness in this regard. Therefore the Magistrate could not have taken cognizance of an offence punishable under Sec. 171(F) or under Sec. 353 of IPC. Furthermore, the prosecution failed to make out offences punishable under Ss. 26(2) and 27(2) of the Karnataka Panchayath Raj Act. In that view of the matter, the entire prosecution of the petitioners in C.C.No.912/2017 on the file of the Principal Civil Judge and JMFC deserves to be quashed. 10. Hence, the petition is allowed. The prosecution of the petitioners in C.C.No.912/2017 on the file of the Principal Civil Judge and JMFC for the offences punishable under Ss. 171(F), 353, 149 of IPC read with Sec. 26(2) and 27(2) of Karnataka Panchayath Raj Act are quashed.