IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 B E F O R E THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.46615/2017 (GM-RES) BETWEEN:
D.V.SADANANDA GOWDA S/O VENKAPPA GOWDA, AGED ABOUT 64 YEARS R/a KAMALA NIVAS, COLASCO OSPITAL ROAD, BENDURWELL MANGALORE D.K.DISTRICT.
(BY SRI S.RAJASHEKAR, ADVOCATE) AND:
... PETITIONER THE STATE OF KARNATAKA BY MANGALORE RURAL POLICE STATION REPRESENTED BY SPP, HIGH COURT OF KARNATAKA HIGH COURT BUILDING BANGALORE-560 001.
… RESPONDENT (BY SRI S.RACHAIAH, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482, Cr.P.C. PRAYING TO QUASH THE PROCEEDINGS IN C.C.701/2016 PENDING ON THE FILE OF JMFC III COURT, MANGALORE, FOR THE OFFENCE PUNISHABLE UNDER SECTION 171H OF IPC AND SECTION 161 OF REPRESENTATION OF PEOPLE ACT, VIDE ANNEXURE-D.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THE COURT MADE THE FOLLOWING ORDER Learned High Court Government Pleader is directed to take notice for the respondent.
2. Heard learned counsel appearing for the petitioner and learned Government Pleader appearing for the State. Perused records.
3. It is the contention of Mr.Rajashekar, learned counsel appearing for petitioner that respondent-police have submitted a charge sheet against petitioner in C.C. No.701/2016, and learned magistrate without looking into the charge sheet material, has taken cognizance of the offence punishable under Section 171H of the Indian Penal Code (IPC, for short) read with Section 161 of the Representation of People’s Act, 1950, (R.P. Act, for short) and has issued process against the petitioner to appear before him. Hence, he seeks for quashing of the same contending inter alia, that neither the offence punishable under Section 171H of IPC nor under Section 161 of R.P. Act is attracted to the facts and circumstances of the case in the light of allegations made in the complaint and as such offence is made out against petitioner resulting in filing of charge sheet.
4. Per contra, Mr.S.Rachaiah, learned High Court Government Pleader, defends initiation of proceedings against petitioner and prays for rejection of the petition.
5. Having heard the learned counsel for the parties and on perusal of the material on record, it would disclose that Special Officer appointed for monitoring of elections held during the year 2014 for the Parliament, lodged a complaint on 9.4.2014 before the respondent police alleging that one Sri Bhaskar Salian (A-1) had taken out a procession for the purpose of canvassing from 2.00 p.m. to 7.00 p.m. on 30.3.2014 from Yedapadavu to Vamanjoor beyond the permitted hours. It is also alleged that accused nos.2 to 4 had made speeches and thereby they have violated the conditions of permission granted and there is breach of the code of conduct, and as such it attracts offences punishable under Section 171H of IPC and Section 161 of R.P. Act. It is also alleged that in spite of instructions by respondent police to stop the speech, accused persons did not heed to their instructions or directions and continued with their speech, thereby committed the alleged offence. Charge sheet material would also disclose that the witnesses have stated about such procession having been conducted between 2.00 p.m. and 7.00 p.m. on 30.3.2014, and accused persons (respondents 2 to 4) having made speeches, or in other words, having held meeting beyond the permitted hours.
6. As could be seen from allegations made in the complaint as well as the statement of witnesses, it ends at conducting meeting upto 7.00 p.m. and making of speech by accused nos.2 to 4. Under similar circumstances, this court was examining as to whether conducting of a meeting beyond the permitted time would attract the offence punishable under Section 171H of IPC and it came to be held by a co-ordinate bench of this court in Crl.Petition No.2631/2014 (disposed of on 30.6.2014) that nature of allegation indicates conducting of meeting between 5.00 p.m. to 7.00 p.m. and iin the teeth of Section 171H of IPC, it came to be held that head note of provision itself refers to illegal payments in connection with an election and only in the event of a complaint containing an allegation that the candidate incurred or authorized expenses on account of the holding of any public meeting, then only said provision is attracted. It was held as under:
‘…Therefore, holding a public meeting after the specific time given to the candidate cannot said to be an offence u/s.171H of the Indian Penal Code, 1860.’ 7. In the light of aforestated judgment, when the facts on hand are examined, it would clearly disclose that allegations made by the complainant to jurisdictional police against petitioner and other accused persons are similar and identical, namely that procession was taken out on 30.3.2014 between 2.00 p.m. to 7.00 p.m. and speeches were made by accused nos.2 to 4 (including the petitioner who is accused no.3) beyond permitted hours.
8. When this being the allegation, it cannot be held or construed that an offence punishable under Section 171H of IPC would be attracted, inasmuch as there is absolutely no material placed by the prosecution about candidate having incurred any expenditure for the purpose of holding such meeting or had authorized any expenses to any third party to hold such meeting. In the absence of such allegation in the complaint or in the absence of witnesses having made such statement, viz., candidate has incurred expenses and has not accounted for and no permission had been obtained to incur such expenses, it cannot be gainsaid by the prosecution that offence punishable under Section 171H of IPC is attracted or could be invoked. In that view of the matter, continuation of proceedings against petitioner for the said offence would only be an abuse of process of law.
9. Insofar as invoking Section 161 of R.P.Act, 1950, is concerned alleging that said provision is attracted, when seen in the background of said statutory provision, it would disclose that it relates to a situation where State Government makes a requisition under Section 160 of R.P. Act in pursuance to or in connection with an election being held, amount of compensation payable is required to be determined under Section 161 of said Act by taking into consideration rent payable in respect of the premises by applying the yardstick of rent payable in the locality; if in consequence of requisition made under Section 160 and person interested in such premises is compelled to change his residence or place of business for the said purpose and as such reasonable expenses incidental to such change will have to be incurred, and in event of such person being aggrieved by the amount of compensation so determined, he can make an application within prescribed time to refer the matter to an arbitrator. On such application being made, arbitrator may determine the amount payable and in event of there being any dispute as to entitlement to receive compensation or for apportionment of such compensation amount, same is also to be recorded by the arbitrator. Same would also relate to a case where State Government requisitions vehicle facility or animal for which the State would be required to pay compensation to the owner thereof.
10. In the light of said provision, when allegations made in the complaint dated 9.4.2014 (Annexure-B) are perused, it does not even remotely suggest that there was any such dispute having arisen and only allegation made in the complaint which is unambiguous and simple is, that a procession was taken out on 30.3.2014 between 2.00 and 7.00 p.m. and speeches were made by the accused persons beyond time prescribed. Hence, Section 161 of R.P. Act is not even remotely attracted. In that view of the matter, continuation of proceedings against petitioner would only be an abuse of the process of law resulting in wastage of judicial time.
11.Hence, this is a fit case where this court is required to exercise the power under Section 482 of Cr.P.C. to quash the proceedings.
12. In the result, I proceed to pass the following order:
ORDER (i) Criminal petition is hereby allowed.
(ii) Proceedings in C.C.701/2016 pending on the file of JMFC III Court, Mangaluru, are hereby quashed.
(iii) Petitioner is acquitted for offence punishable under Section 171H of IPC and under Section 161 of R.P. Act.
SD/- JUDGE vgh*