SRI MURUGESH RUDRAPPA NIRANI v. STATE OF KARNATAKA
Case at a glance
Outcome
Allowed
The petition is allowed
Provisions considered
- Constitution of India arts. 226, 227
- Indian Penal Code, 1860 ss. 171(F), 171(H), 171F, 171FA, 171H
- Code of Criminal Procedure, 1973 ss. 190(1)(a), 190(1)(b), 204
Key paragraphs
- Para 1212. For the aforesaid reasons, the following: i) The petition is allowed; ii) The
Judgment
(BY SRI. THEJESH P., HCGP FOR R1; SRI. SHARATH S DODWAD, ADV. FOR R2) …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER OF ORDER DATED ORDER DTD. 08.11.2023 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, MUDHOL IN CC NO. 606 OF 2023 BY WHICH ORDER THE TRAIL MAGISTRATE HAS ALLEGEDLY TAKEN COGNIZANCE AND ORDERED THE ISSUANCE OF SUMMONS AGAINST - 2 - NC: 2024:KHC:40011 WP No. 20783 of 2024 THE PETITIONER HEREIN WHO IS ARRAIGNED AS A SOLE ACCUSED FOR THE ALLEGED COMMISSION OF OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 171F AND 171H OF THE INDIAN PENAL CODE, WHICH IS PRODUCED AT ANNX-A AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner - the sole accused in C.C.No.606/2023 calls in question an order dated 08.11.2023 by which the concerned Court takes cognizance of the offence punishable under Sections 171(F) and 171(H) of the IPC and issues summons.
Heard Sri. Ajay Kadkol T., the learned counsel appearing the petitioner, learned High Court Government Pleader Sri. Thejesh P., appearing for respondent No.1 and the learned counsel Sri. Sharath S Dodwad, appearing for respondent No.2.
Facts in brief, germane are as follows: The petitioner claims to be an entrepreneur and a politician, who said to have held multiple positions in the State - 3 - NC: 2024:KHC:40011 WP No. 20783 of 2024 of Karnataka. The story in the case at hand begins on
21.04.2023 at about 5.00 p.m., when the second respondent - complainant - the flying squad receives information of alcohol being used during the elections. A search is conducted at 5:30 p.m., in the quarters of employees of M/s. Nirani Sugars Limited, which is constructed on lands in Sy.No.148/A/2 measuring 7 acres 31 guntas. During the search, 10 boxes containing silver lakshmi lamps weighing 27865.62 grams and valued at Rs.21,45,652/- were recovered. Based upon the said search, a crime is sought to be registered, which ends up in a non-cognizable report in N.C.R.No.26/2023. Thereafter, the Investigating Officer files a requisition before the jurisdictional Magistrate seeking permission to register the crime for offence punishable under Sections 171(F) and 171(H) of the IPC. The concerned magistrate permits such registration, on which basis Crime No.111/2023 is registered against the petitioner as sole accused. On registration of the crime, the police is said to have filed a final report - a charge sheet against the petitioner for the aforesaid offences. The concerned Court, in terms of its dated 08.11.2023 cognizance, registers C.C.No.606/2023 and issues summons to the petitioner. It is - 4 - NC: 2024:KHC:40011 WP No. 20783 of 2024 this that has driven the petitioner to this Court, in the subject petition.
The learned counsel appearing for the petitioner Sri. Ajay Kadkol T., contends that the order of taking of cognizance and issuance of summons does not bear any application of mind. It is contrary to Section 204 of the Cr.P.C. Recovery of articles in the search conducted is not from the hands of the petitioner, from the staff quarters of M/s Nirani Sugars Ltd., in the land on which factory of the petitioner stands. There is not material to indicate any nexus of the petitioner with M/s Nirani Sugars Limited. He would seek quashment of the proceedings.
Per contra, the learned counsel appearing for the respondents would seek to defend the action but would submit that there is no recovery from the hands of the petitioner.
I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record. - 5 - NC: 2024:KHC:40011 WP No. 20783 of 2024
The afore-narrated facts are not in dispute. The issue that fall for consideration is, whether the concerned court applied its mind while taking cognizance and while issuing process. The Court has taken cognizance presumably under Section 190(1)b) of the Cr.P.C., and has issued process under Section 204 of Cr.P.C. The manner in which these actions have to be taken need not detain this Court for long or delve deep into the mater. The Apex Court, in the case of Sunil Todi v. State of Gujarat1, has observed thus: ground proceeding. Tunda [Mehmood Mohammad "39. This Court has held that the Magistrate is duty- bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there is a prima facie In Mehmood UI sufficient Rehman v. Khazir UI Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] , this Court followed the dictum in Pepsi Foods Ltd. v.
Special Judicial Magistrate [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , and observed that setting the criminal law in motion against a person is a serious matter. Hence, there must be an application of mind by the Magistrate to whether the allegations in the complaint together with the statements recorded or the enquiry conducted constitute a violation of law. The Court observed (Mehmood Ul Rehman case [Mehmood UI Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] , SCC pp. 429- 30, paras 20 & 22) : “20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is 1 (2021) SCC Online SC 1174 - 6 - NC: 2024:KHC:40011 WP No. 20783 of 2024 taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court.
It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Special Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter. Magistrate [Pepsi Judicial *** 22. The steps taken by the Magistrate under Section 190(1)(a)CrPC followed by Section 204CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage.
The Code of Criminal Procedure requires speaking order to be passed under Section 203CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204CrPC, by appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204CrPC, the High Court under issuing process - 7 - NC: 2024:KHC:40011 WP No.
20783 of 2024 Section 482CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self- respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” 40. While noting that the requirement of conducting an enquiry or directing an investigation before issuing process is not an empty formality, the Court relied on the in Vijay Dhanuka [Vijay Dhanuka v. Najima decision Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479] which had held that the exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing but an enquiry envisaged under Section 202 of the Code. "
Further, the Apex Court, in the case of Deepak Gaba v. State of U.P2., has held as follows: "30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; and Mehmood Ul Rehman v. Khazir 2 (2023) 3 SCC 423 - 8 - NC: 2024:KHC:40011 WP No. 20783 of 2024 Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124.]
Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192; Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken. " and Birla Corpn.
The afore-quoted judgments of the Apex Court would clearly indicate that when the concerned Court takes - 9 - NC: 2024:KHC:40011 WP No. 20783 of 2024 cognizance and issues summons, the order should reflect application of judicial mind and sufficient material being present to issue process. In the teeth of the aforesaid orders of the Apex Court, it becomes germane to notice the order of taking of cognizance. The order reads as follows: "ORDER Invoking Sec.190(1)(b) of Cr.P.C cognizance for the offence punishable U/sec. 171(F), 171(H) of IPC is hereby taken. Hence, office is hereby directed to registered the case as C C and shall enter the same in the concerned register. This case is madeover to Addl. Civil Judge & JMFC Court Mudhol for disposal according to law. Issue S/S to accused. Call on: 08-11-2023. Sd/- Prl. Civil Judge & JMFC, Mudhol"
The offence is the offences punishable under Sections 171F and 171H of the IPC. They read as follows: "171F. Punishment for undue influence or personation at an election.—Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. 171H. Illegal payments in connection with an election.—Whoever without the general or special authority in writing of a candidate incurs or authorises - 10 - NC: 2024:KHC:40011 WP No. 20783 of 2024 expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate" Sections 171FA of the IPC deals with punishment of undue influence or personation at an election and Section 171H of the IPC deals with illegal payments in connection with an election. Both of which mandate whoever commits the offence of undue influence or personation or whoever makes illegal payments during an election are said to be indulged in said offence.
As observed hereinabove, certain items recovered not from the hands of the petitioner but from the house of an employee of M/s Nirani Sugars Limited. There is no connection with the petitioner and no recovery from the hands of the petitioner. Finding no ingredients of the offences being made - 11 - NC: 2024:KHC:40011 WP No. 20783 of 2024 out, as also the order of taking of cognizance suffering blatant non-application of mind, the petition deserves to succeed.
Operative part
For the aforesaid reasons, the following: i) The petition is allowed; ii) The
08.11.2023 C.C.No.606/2023 pending on the file of the Principal Civil Judge and J.M.F.C., Mudhol, is set aside; and iii) The proceedings in C.C.No.5245/2024, pending on the file of the LXII Additional Chief Metropolitan Magistrate - Special Court for trial of cases against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka, Bengaluru City, qua the petitioner, stand quashed. Sd/- (M.NAGAPRASANNA) JUDGE KG List No.: 1 Sl No.: 8
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The petition is allowed
Which statutory provisions did this judgment involve?
Constitution of India — arts. 226, 227; Indian Penal Code, 1860 — ss. 171(F), 171(H), 171F, 171FA, 171H; Code of Criminal Procedure, 1973 — ss. 190(1)(a), 190(1)(b), 204.
Which court decided this case, and when?
Karnataka High Court, on 26 Sep 2024. The bench was M NAGAPRASANNA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.