Criminal Petition No. 4135 of 2023 · The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.4135 OF 2023 BETWEEN: M.MALURU ES EN KRISHNAIAH SETTY S/O SHIVARAPATNA NARAYANA SETTY OCC: EX-MLA, NOW AGRICULTURIST AND BUSINESSMAN AGED ABOUT 63 YEARS R/AT NO.50, 10TH MAIN, 17TH CROSS MALLESHWARAM, BENGALURU – 55. AMENDED VIDE COURT ORDER DATED 02.06.2023 (BY MS. KEERTHANA NAGARAJ, ADVOCATE) ... PETITIONER AND: 1 . STATE OF KARNATAKA BY THE POLICE OF MALLESHWARAM POLICE STATION BENGALURU CITY – 560 003 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 2 . SRI LAKSHMANAPPA C. V., S/O NOT KNOWN AGED ABOUT 50 YEARS OCC: STATE GOVT. EMPLOYEE FLYING SQUAD TEAM-05 NO.157, BWSSB, 3RD MAIN MALLESHWARAM BENGALURU – 560 003. ... RESPONDENTS
Legal Reasoning
(BY SRI B.N.JAGADEESHA, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASHING THE FIR DATED 01.04.2023 VIDE ANNEXURE-B NEW IN CR.NO.1125/2023 IN CR.NO.65/2023 OF MALLESWARAM P.S., REGISTERED FOR THE OFFENCE P/U/S 171(E) OF IPC, PENDING ON THE FILE OF LD. 42ND ACMM, BENGALURU. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner is knocking at the doors of this Court calling in question registration of a crime in Crime No.1125 of 2023 registered for offence punishable under Section 171E of the IPC and pending before the XLII Additional Chief Metropolitan Magistrate, Bengaluru. 3 2. Heard Kum.Keerthana Nagaraj, learned counsel appearing for the petitioner and Sri B.N.Jagadeesha, learned Additional Special Public Prosecutor appearing for the respondents. 3. The facts, in brief, germane are as follows:- The 1st respondent around 2.30 p.m. conducts a search in the house of the petitioner. At about 6.30 p.m. the 2nd respondent/ Member of Flying Squad appointed for the purpose of conduct of searches in connection with the then ensuing Karnataka Legislative Assembly elections, registers a complaint against the petitioner alleging offence punishable under Section 171E of the IPC. The 1st respondent itself registers a non-cognizable report and presented the same before the learned Magistrate. The learned Magistrate on presentation of a non-cognizable report, as the offence alleged was under Section 171E of the IPC, permits registration of crime in terms of sub-section (2) of Section 155 of the Cr.P.C.. It then becomes a crime in Crime No.65 of 2023 which is now numbered as Crime No.1125 of 2023 for the aforesaid offence. The registration 4 of crime is what has driven the petitioner to this Court in the subject petition. 4. The learned counsel for the petitioner Kum. Keerthana Nagaraj would submit that the offence under Section 171E of the IPC is non-cognizable and, therefore, the jurisdictional Police ought to have referred the informant to the Magistrate and jurisdictional police themselves have not sought permission to register the crime. This is the procedural violation that the petitioner projects. She would place reliance upon the judgment of the coordinate Bench of this Court in B.S. YEDIYURAPPA v. STATE OF KARNATAKA – (2020) 4 KCCR 2649. 5. Per contra, the learned Additional State Public Prosecutor would refute the submissions by placing reliance upon the judgment rendered by this Court in VIJESH PILLAI v. STATE OF KARNATAKA – 2023 SCC OnLine KAR 32 wherein it is held that either the informant or the Station House Officer can seek permission to register the crime and it need not be the informant alone. In that light he would submit that the permission granted by 5 the learned Magistrate at the instance of the 1st respondent cannot be invalidated. He would submit, even on merits of the matter that Section 171E of the IPC is found in the case at hand. 6. The learned counsel for the petitioner would join issue in contending that there are no ingredients of Section 171E of the IPC found in the case at hand. Therefore, even on merits of the matter, the learned counsel would seek quashment of proceedings. 7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. 8. The afore-narrated facts are not in dispute. The search that is conducted in the house of the petitioner leads to registration of a complaint. The complaint reads as follows: “gÀªÀjUÉ ಆರ(cid:4)ಕ (cid:6)(cid:7)ೕ(cid:4)ಕರು ಮ(cid:11)ೆ(cid:13)ೕಶ(cid:15)ರಂ (cid:17)(cid:18)ೕ(cid:19) (cid:20)ಾ(cid:22)ೆ (cid:23)ೆಂಗಳ(cid:26)ರು (cid:27)ಾನ(cid:29)(cid:30)ೇ, (cid:31)ಷಯ: "ಾಂ#ನಗರ (cid:31)$ಾನ ಸ&ಾ ’ೇತ)ದ +,ೆ- ಪ(cid:4)ದ ಸಂಭವ(cid:6)ೕಯ ಅಭ(cid:29)23 4)ೕ ಕೃಷ6ಯ(cid:29) 7ೆ89 ಎಂಬುವವರ ಮ(cid:11)ೆ(cid:13)ೕಶ(cid:15)ರಂ ಮ<ೆಯ(cid:18)(cid:13) ಮತ=ಾರ(cid:7)"ೆ ಹಂ?@ೆ 6 (cid:27)ಾA ಮತಗಳ ಆBಷCಡEಲು ಸಂಗ)GHದI JನH =ಾKಾLನುಗಳ ಕು(cid:7)ತು ದೂರು =ಾಖ(cid:18)H @ಾನೂನು ಕ)ಮವGಸುವ ಬ"ೆO. ಉ(cid:11)ೆ(cid:13)ೕಖ: J<ಾಂಕ: 01-04-2023 ರಂದು ಸದ(cid:7) ಸYಳ@ೆZ &ೇ8 (cid:6)ೕA JನH =ಾKಾLನುಗಳನು[ ಪ(cid:7)4ೕ(cid:18)Hರುವ \ೕ(cid:30)ೆ"ೆ. **** \ೕಲZಂಡ (cid:31)ಷಯ@ೆZ ಸಂಬಂ#Hದಂ^ೆ, 2023 ಕ<ಾ3ಟಕ (cid:31)$ಾನಸ&ಾ ಚು<ಾವ(cid:22)ೆಗಳನು[ ನaೆಸುbLರುವ ಅಂಗcಾd ನಂ.157, ಮ(cid:11)ೆ(cid:13)ೕಶ(cid:15)ರಂ (cid:31)$ಾನಸ&ಾ ’ೇತ)ದ(cid:18)(cid:13) ಸಂಭ(cid:31)ಸಬಹು=ಾದ ಚು<ಾವ(cid:22)ೆ (cid:6)ೕb ಸಂG^ೆಗಳನು[ ಉಲ(cid:13)ಂಘ<ೆfಾಗದಂ^ೆ ಚು<ಾವ(cid:22)ೆ ನaೆಸುವ ಸಂಬಂಧ ಮುಖ(cid:29) ಚು<ಾವ(cid:22)ಾ#@ಾ(cid:7)ಯವ(cid:7)ಂದ ರ?ತcಾdರುವ Model code of Conduct (MCC) @ಾಯ3@ೆZ <ೋಡh ಅ#@ಾ(cid:7)ಗಳ <ೇತೃತ(cid:15)ದ(cid:18)(cid:13) @ಾಯ3 (cid:6)ವ3GಸುbLರುವiದು ಸ(cid:7)ಯjೆ9 "ಾಂ#ನಗರ (cid:31)$ಾನ ಸ&ಾ ’ೇತ)ದ +,ೆ- ಪ(cid:4)ದ ಸಂಭವ(cid:6)ೕಯ ಅಭ(cid:29)23fಾದ 4)ೕ ಕೃಷ6ಯ(cid:29) 7ೆ89 ಎಂಬುವವರ ಮ<ೆಯ(cid:18)(cid:13) ಮತ=ಾರ(cid:7)ಂದ ಮತಗಳನು[ ಗkಸಲು ಆBಷCಡEಲು ಅಕ)ಮcಾd JನH =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವ ಬ"ೆO (cid:27)ಾನ(cid:29) <ೊaೆh ಅ#@ಾ(cid:7)ಗk"ೆ ಬಲ(cid:13) ಮೂಲಗkಂದ ದೂರು ಬಂದ G<ೆ[(cid:11)ೆಯ(cid:18)(cid:13) (cid:27)ಾನ(cid:29) <ೋಡh ಅ#@ಾ(cid:7)ಗಳl ಕತ3ವ(cid:29)ದ(cid:18)(cid:13)ದI FST -05 ತಂಡ@ೆZ (cid:6)ೕAದ ಆ=ೇಶದಂ^ೆ <ೋaೆh ಅ#@ಾ(cid:7)ಗಳ <ೇತೃತ(cid:15)ದ(cid:18)(cid:13) ಮ(cid:11)ೆ(cid:13)ೕಶ(cid:15)ರಂ (cid:17)(cid:18)ೕ(cid:19) (cid:20)ಾ(cid:22)ೆಯ ಇnopೆಕ9q ರವ(cid:30)ೊಂJ"ೆ ಜಂ8fಾd ಉ(cid:11)ೆ(cid:13)ೕಖದ J<ಾಂಕದಂದು ಮ(cid:11)ೆ(cid:13)ೕಶ(cid:15)ರಂ, 10 <ೇ \ೖn, 17 <ೇ @ಾ)(cid:19)ನ(cid:18)(cid:13)ರುವ ಮ<ೆ ನಂ: 50 ರ ಮ<ೆಯ(cid:18)(cid:13) ಖುದುI ಪ(cid:7)4ೕ(cid:18)ಸ(cid:11)ಾtತು. ಸYಳದ(cid:18)(cid:13) ಲ’ಾಂತರ ರೂpಾt (cid:23)ೆ(cid:11)ೆ (cid:23)ಾಳlವ JನH =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವiದು ಕಂಡುಬಂJರುತL=ೆ. =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವiದ@ೆZ ಅನುಮb/ರHೕJ/ಇ^ಾ(cid:29)J =ಾಖ(cid:11)ಾbಗಳನು[ @ೇk=ಾಗ ಸಂಗ)ಹ=ಾರರು/ಅವರ ಕaೆಯವರು fಾವi=ೇ =ಾಖ(cid:11)ೆಗಳನು[ <ೋaೆh ಅ#@ಾ(cid:7)ಗk"ೆ uಾಜರುಪAHರುವiJಲ(cid:13). ಮತ=ಾರರ ಮತಗಳನು[ Kೆvೆಯುವ ಉ=ೆIೕಶJಂದ \ೕಲZಂಡ JನH =ಾKಾLನುಗಳನು[ ಅಕ)ಮcಾd ಸಂಗ)GHರುವiದು ಪ),ಾ ಪ)b(cid:6)# @ಾwI ಮತುL ಐ-H ಕಲಂಗಳನು[ ಉಲ(cid:13)ಂyHದಂ^ಾdರುವiದ(cid:7)ಂದ ಈ =ಾKಾLನುಗಳನು[ ಸಂಗ)GHರುವವರ (cid:31)ರುದ{ ಪ),ಾ ಪ)b(cid:6)# @ಾwI uಾಗೂ ಐ.-.H. @ಾwI ಪ)@ಾರ @ಾನೂನು ಕ)ಮವGಸಲು ಈ ಮೂಲಕ @ೋ(cid:7)=ೆ ¸À»/- [4)ೕ H (cid:31) ಲ(cid:4)}ಣಪ(cid:127)] FST-05 vÀAqÀ ¸ÀºÁAiÀÄPÀ ಅ(cid:128)ಯಂತರರು, ++ಎಂ-, pಾಡ3 ನಂ: 76, "ಾtb) ನಗರ,” 7 The crux of the complaint is that in the house of the petitioner, he had stored illegal ration worth several lakhs of rupees, for which the petitioner failed to produce any documents. It is alleged that the grains was stored for distribution during the elections, to woo the voters. Based upon the said complaint, permission is sought from the hands of the learned Magistrate. Permission is granted for registration of crime. 9. The issue whether the informant has to go to the learned Magistrate to seek permission or the Station House Officer need not be gone into, as in the opinion of the Court, the offence under Section 171E is not even attracted in the case at hand. Section 171E of the IPC reads as follows: “171-E. Punishment for bribery.—Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both: Provided that bribery by treating shall be punished with fine only. Explanation.—“Treating” means that form of bribery where the gratification consists in food, drink, entertainment, or provision.” 8 For an offence to become punishable under Section 171E of the IPC which is the punishment for bribery, the ingredients as necessary under Section 171B are required to be present. Section 171B of the IPC reads as follows: “171-B. Bribery.—(1) Whoever— (i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or (ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification. (3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.” Section 171B mandates that any person who gives gratification to any person with an object of inducing any other person to exercise electoral right or any person accepts either for himself or for other 9 person any gratification is said to be committing the offence of bribe. 10. What is found in the case at hand is not distribution of ration by the petitioner but stock of ration. This, unless the petitioner is caught distributing or anybody else receiving such distribution of ration, would not attract the ingredients of Section 171B of the IPC for it to become an offence under Section 171E of the IPC. 11. This Court in the case of SHRI YUVARAJ v. THE STATE OF KARNATAKA1, held as follows: “…. …. …. 3. The learned counsel for the petitioner would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.1560/2024, disposed of on 05.04.2024, wherein the co-ordinate Bench of this Court has held as follows: “2. Learned counsel for the Petitioner vehemently argues that the proceedings are liable to be voided because: 1 Crl.P.No.7180 of 2024 dated 08.08.2024 10 i) ii) in What all has been alleged the FIR/Charge Sheet do not disclose commission of any offence and the ingredients of the alleged offences are lacking; therefore, the matter would fit into one of the postulates in STATE OF HARYANA vs CHOWDHARY BHAJAN LAL, AIR 1992 SC 604 which has been reiterated NEEHARIKA INFRASTRUCTURES PVT. LTD. Vs. STATE OF MAHARASHTRA AND OTHERS, 2021 SCC OnLine 315. M/S in The order of the learned Magistrate which grants permission which occurs at page No.33 of the PETITION is as cryptic as can be and further it does not disclose any application of mind nor it is reasoned. for 3. Learned Addl. SPP appearing
Decision
the Respondent – State vehemently opposes the Petition contending that by looking to the entire material of charge Sheet filed by the police after investigation, it cannot be said that the proceedings are unsustainable. If petitioner faces the trial, no prejudice would be caused to her and that the same would do justice to herself and to the public interest. Even otherwise, petitioner can tap the provisions for discharge or the like, at the hands of learned Magistrate himself, instead of pressing this petition. So contending, he seeks dismissal of the Writ Petition. 4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is inclined to grant indulgence in the matter for the following reasons: (a) Chapter IXA came to be added to the statute book namely IPC, 1860 by way of amendment, with intent to bring purity in election process. It seeks to make punishable under the ordinary penal law, bribery, undue influence & personation, and certain other malpractices at elections not only to the Legislative bodies, but also to membership of public authorities where the law prescribes a method of election. Further, it 11 intends to debar persons guilty of malpractices from holding positions of public responsibility for a specific period. This chapter has to be read along with the relevant provisions of the Representation of People Act, 1951 as it contains additional penalties for certain offences, e.g., sections 171E to 171F of this Code. Thus a conviction under section 171E or section 171F of IPC amounts to a disqualification u/s.8 of RP Act, 1951. This chapter comprises of both a dictionary clause and penal provisions. (b) The offence of bribery is defined under Section 171B of IPC as under: “171B. Bribery— (1) Whoever—(i)gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or (ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. (2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification. (3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward” This section defines bribery as an electoral offence, primarily as the giving or accepting of a 12 gratification either as a motive or as a reward to any person, either to induce him to stand, or not to stand as, or to withdraw from being a candidate or to vote or refrain from voting at an election. In terms of sub-section (2) inter alia it includes offers or agreements to offer and attempt to procure a gratification. “Gratification” is explained in section 161 as not being restricted to only pecuniary things. Section 171-B(1)(i) provides that if gratification is given to any person inducing him or any other person to exercise any electoral right, it amounts to commission of the offence of bribery. c) In the above backdrop, let me examine the penal provision namely Section 171(E) of IPC which reads as under: “Punishment for bribery.—Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both: Provided that bribery by treating shall be punished with fine only.” In order to fit into the definition of ‘bribery’ the requirement is that there should be a person who gives or at least offers to give any gratification as a reward for exercising the electoral right or for having exercised such a right, by another person. Thus, there should be minimum two persons involved in the act, namely one who bribes or offers to bribe and the other who is bribed or offered bribe. (d) Added to the above, it is not the case of respondents that the alleged act has been done by the person concerned for and on behalf of the petitioner herein. To put it succinctly, what emerges from the complaint is that a particular person was carrying the money and that the same has been seized since it was suspected to be used for electoral offences. All that does not amount to the offence of bribery, even if the allegations are taken at their face value, and therefore there is no 13 scope for invoking section 171(E) of IPC, as rightly submitted by learned counsel for the petitioner. e) The next allegation in the complaint relates to the offence punishable under section 133 of the Representation of People Act, 1951. The same reads as under: “Penalty for illegal hiring or procuring of conveyance at elections.—If any person is guilty of any such corrupt practice 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.” The above penal provision in turn refers to a corrupt practice as is specified inter alia in clause 5 of section 123 at or in connection with an election. Section 123 deals with certain acts as corrupt practices. Sub- section(5) specifies one of them, with the following text: “(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person [with the consent of a candidate or his election agent] [or the use of such vehicle or vessel for the free conveyance] of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub- section (1) of section 29 for the poll” Employing the vehicle or vessel as contemplated in the above provision, is a sine qua non for the invocation of section 133. It is nobody’s case that something of the kind exists in the allegations leveled against the person concerned and more particularly, the petitioner herein. In the absence of ingredients as specified in section 123(5),one would be miles away from the precincts of section 133of 1951 Act. In the above circumstances, this petition succeeds. The proceedings in Crime No.52/2023 of in Nipani Town Police Station, now pending 14 CC No.2990/2023 on the file of learned JMFC, Nipani, for the offences punishable under sections 120(1) & 133 of Representation of People Act, 1951 and also for the offence punishable under Section 171(E) of IPC, 1860 are hereby quashed. Petitioner is set free of the subject case." 4. In the Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following: the order passed by light of the ORDER i) ii) The Criminal Petition is allowed. The proceedings in C.C.No.2990/2023 pending on the file of the Additional Civil Judge and J.M.F.C., Court, Nipani, qua the petitioner, stand quashed.” (Emphasis in original) 12. In light of the issue standing covered by the order passed by this Court (supra) and on finding no ingredient of Section 171E of IPC being attracted in the case at hand, the crime registered against the petitioner is rendered unsustainable. The unsustainability, leads to its obliteration. 13. For the aforesaid reasons, the following: O R D E R (i) Criminal Petition is allowed. 15 (ii) Crime registered in Crime No.1125 of 2023 (Old No.65 of 2023) by the Malleswaram Police Station, Bengaluru and pending before the XLII Additional Chief Metropolitan Magistrate, Bengaluru stands quashed. Sd/- ____________________ JUSTICE M.NAGAPRASANNA Bkp CT:SS