IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL PETITION No.5236/2017 BETWEEN:
1. MR.MAHABALA KUNDER AGED ABOUT 59 YEARS S/O LATE APPANNA KUNDER KALMADY, MALPE POST UDUPI – 576 101.
2. MR.PRASANNA SHETTY ALIAS MANJU AGED ABOUT 42 YEARS S/O KARUNAKARA SHETTY KODANDA BETTU MANE BOMMARABETTU VILLAGE HIRIADKA POST UDUPI TALUK – 576 113.
3. MR.SADANDA SHETTY AGED ABOUT 50 YEARS S/O LATE RAJU SHETTY KODANDABETTU BOMMARABETTU VILLAGE HIRIADKA POST UDUPI TALUK – 576 113.
4. MR.VINOD KUMAR AGED ABOUT 51 YEARS S/O RAMACHANDRA RAO BOMMARABETTU VILLAGE HIRIADKA POST UDUPI TALUK – 576 113.
5. MR.BHASKARA POOJARY AGED ABOUT 59 YEARS S/O BOLLU POOJARY DODDAKEREBETTU MANE HIRIADKA POST UDUPI TALUK – 576 113.
6. MR.SUDHIR HEGDE AGED ABOUT 54 YEARS S/O LATE VSHWANATHA HEGDE VISHWA SHANTI, ANJARU VILLAGE UDUPI TALUK – 576 113.
7. MR.KIRAN AGED ABOUT 18 YEARS S/O RAGHU NEAR KEB, MANAYI ROAD KODANDA KATTE HIRIADAKA UDUPI TALUK – 576 113.
8. MR.PRASHANTH SHETTY AGED ABOUT 32 YEARS S/O SADANANDA SHETTY PALLANJE MANE, BOMMARABETTU VILLAGE HIRIADAKA UDUPI TALUK – 576 113.
9. MR.SHIVRAJ AGED ABOUT 23 YEARS S/O BHASKARA POOJARY DODDAKERBETTU MANE HIRIADAKA UDUPI TALUK – 576 113.
10. MR.GUNAPADA POOJARY AGED ABOUT 43 YEARS S/O LATE PUDDU POOJARY BHATRA MANE BOMMARABETTU VILLAGE HIRIADAKA UDUPI TALUK – 576 113.
11. MR. SURESH NAIK AGED ABOUT 44 YEARS S/O ACHUTHA NAIK MANDAJE MANE BOMMARABETTU VILLAGE HIRIADAKA UDUPI TALUK – 576 113. …PETITIONERS (BY SRI RAVIKANTH A., ADV.) AND:
THE STATE BY SHO HIRIADKA POLICE STATION REPRESENTED BY THE SPP HIGH COURT OF KARNATAKA BENGALURU – 560 001. …RESPONDENT (BY SRI SANDESH J. CHOUTA, SPP-II) THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., PRAYING TO i) QUASH THE FIR FILED BY THE COMPLAINT IN CR.NO.58/2016 (HIRIADKA POLICE DATED 20.06.2016) FOR THE OFFENCES U/S 171(C), 353 R/W 149 OF IPC AND SEC.130, 131, 133 OF REPRESENTATION OF POLICE ACT AGAINST THE PETITIONERS.
ii) QUASH THE TRIAL AND PROCEEDINGS BASED ON THE CHARGE SHEET IN C.C.NO.912/2017 DATED 31.03.2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI AND SUMMONS ISSUED AGAINST THE PETITIONERS ON TAKING COGNIZANCE OF OFFENCES U/S 171(C), 353 R/W 149 OF IPC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioners. Perused the records. The police have charge sheeted the petitioners for the offences under sections 171-C, 353 r/w section 149 of IPC and also under sections 130, 131, 133 of Representation of People Act. The Trial Court Magistrate has passed an order in the following manner:
“ ORDER Perused the charge sheet along with documents. Cognizance taken under sections 171(C), 353 r/w 149 of IPC., Sections 130, 131, 133 of Representation of People Act. Register the case as C.C. in Register No.III. Issue summons to accused returnable by 20.4.2017. Date of cause of Action 20.2.2016.
Principal Civil Judge & JMFC Udupi ”
2. The above said order has been called in question by the accused-petitioners before this court on the ground that none of the provisions are attracted so as to enable the Magistrate to take cognizance. Learned counsel brought to the notice of this Court that the Representation of People Act is not at all applicable so far Panchayath and Zilla Panchayath Elections are concerned. He also further submits that Section 171(C) is not a penal provision under which the Court has taken cognizance. Therefore, it shows that the Magistrate has not applied his mind before passing such orders.
3. Under section 204 of Cr.P.C, it is the duty of the Magistrate to record his opinion while taking cognizance of an offence that there are sufficient grounds for proceeding against the accused persons. Then only the Magistrate can issue process against the accused. Section 190 of Cr.P.C also mandates the Magistrate to examine the materials on record before taking cognizance of the offence. The said provision says that the Magistrate is empowered to take cognizance only on the basis of the information of the police report which contains the allegations constituting the offence alleged by the police or under any law for the time being in force. These two provisions if they are read co- jointly together, it bestows the responsibility on the Magistrate. He has to go through the entire charge sheet material and ascertain as to which of the penal provisions are attracted so as to issue process and whether there is any bar for the time being in force to take cognizance. After satisfying himself, he should express his opinion and then to proceed to issue process against the accused.
4. Though learned Special Public Prosecutor brought to the notice of this court that there are provisions under sections 26, 27 and 28 of the Karnataka Panchayat Raj Act, 1993 which are on par with sections 130, 131 and 133 of the Representation of People Act, but the fact remains that neither the police have looked into these provisions nor the Magistrate has applied his mind, but very casually summons have been ordered to be issued to the accused. Admittedly, the Representation of People Act is applicable only to the Elections pertaining to the Legislative Assembly and Parliamentary Elections, as rightly submitted by the learned counsel for the petitioners.
5. Section 171-C of IPC is also not attracted because it is only a definition section. Therefore, it clearly goes to show, the Magistrate has not applied his mind before passing such orders. Under the above said circumstance, the order taking cognizance is bad in law and the same is liable to be quashed. The Magistrate is at liberty to go through the materials on record in the charge sheet, apply his mind and then pass appropriate orders, either rejecting the report of the police or passing any appropriate order in accordance with law.
6. Under these circumstances, I proceed to pass the following order:
The order passed by the learned Magistrate dated 31.3.2017 in taking cognizance for the above said offences without applying his mind is hereby quashed. The entire charge sheet papers are restored on the file of the learned Magistrate to pass appropriate orders after going through the contents of the entire charge sheet papers.
Sd/- JUDGE Dvr: