IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.2745 OF 2017 BETWEEN:
MALLANAGOWDA BIRADHAR AGED ABOUT NO.46, BISANALA VILLAGE, BASAVANA BAGEVADI TALUK, VIJAYPURA – 586203 (BY SRI.SIVAMANITHAN S, ADVOCATE) AND:
...PETITIONER 1. STATE BY VIDHANASOUDHA PS REPRESENTED BY SPP HIGH COURT OF KARNATAKA 2. DINESH AMIN MATTU AGED ABOUT 56 YEARS, MEDIA ADVISOR TO HON’BLE CHIEF MINISTER OF KARNATAKA, NO.204, 2ND FLOOR, VIDHANA SOUDHA, BANGALORE – 560 001 ...RESPONDENTS (BY SRI. S. RACHAIAH, HCGP FOR R1; R2 SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.22519/2016 ON THE FILE OF VIII ACMM, BANGALORE FOR THE OFFENCES P/U/S 504, 505, 506 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed for quashing of proceedings pending in C.C. No.22519/2016 on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Sections 500, 504, 505 and 506 of IPC.
2. Respondent No.2, who was working as a Media Advisor to the then Chief Minister of Karnataka had written a article about Swami Vivekananda in Prajavani Newspaper about three years back and for said article a Facebook group called Nilume along with other accused persons had posted their comments on 13.01.2015 around 4.00 p.m. stating:
“idhannu baredhavanu mahani alla, thale hiduka, sarkaradha koolu thinnu thidhdhan, bolimaganna chappalli kiththogovaregu hodibeku, neecha”
3. Hence, a complaint came to be lodged by respondent No.2 before first respondent alleging persons who have commented on the facebook are guilty of annoyance, inconvenience, danger, obstruction, insults, injury, criminal intimidates, enmity, ill-will and by persistently making use of computer resource or communication device such comments have been posted. Said complaint came to be registered against petitioner (accused No.5) and five (5) others for the offence punishable under Section 66(A) of the Information Technology Act, 2000 (for short ‘the IT Act’) and under Sections 505, 500, 506 and 504 of IPC. On completion of investigation, charge sheet came to be filed against them in C.C. No.22519/2016, which proceedings are pending on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru. Hence, petitioner is before this Court.
4. It is contended by learned counsel appearing for petitioner that petitioner being a member of said “Nilume” Group, on 12.01.2015 saw a post written by Mr. Anjineya Reddy criticizing respondent No.2 for his article on Swami Vivekananda in Prajavani monthly magazine newspaper about two years back and said Anjineya Reddy had called upon the members of Facebook to post their comments and as such, petitioner had called upon members of the group to post their comments and it is further alleged that it is a comment written by Mr. Anjineya Reddy and not posted by petitioner. Hence, on this prime ground amongst other grounds urged in the petition, he has sought for proceedings pending against petitioner being quashed.
5. Per contra, Sri. S. Rachaiah, learned HCGP appearing for respondent No.1-State would support the case of prosecution and contends that defence, which is sought to be put up by petitioner has to be established during course of trial and as such, it would not be appropriate for this Court to exercise the inherent jurisdiction to quash the proceedings. Hence, he prays for rejection of the petition.
6. Having heard the learned advocates appearing for parties, it requires to be noticed that insofar as IPC offences are concerned are non-cognizable offences and as such, by first respondent before taking up the matter for investigation and registration of FIR without express permission by the jurisdictional Magistrate. The offence alleged i.e., Sections 500, 504, 505 and 506 of IPC are non-cognizable offence. Section 155 of Cr.P.C. deals with the procedure of investigation and cognizance of non-cognizable cases.
“155. Information as to non- cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.”
7. As per the above provisions, when an Officer- in-charge of the police station receives an information with regard to commission of non-cognizable offence/s, (i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
8. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr.P.C. There is nothing on record to show that respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C., or obtained necessary order as envisaged under Section 155(2) of Cr.P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr.P.C. As such, on this ground alone, proceedings initiated against the petitioner is liable to be quashed.
9. That apart, it is also required to be noticed that Hon’ble Apex Court in the case of SHREYA SINGHA vs. UNION OF INDIA reported in (2015) 5 SCC 1 has struck down Section 66(A) of the IT Act as unconstitutional and ultra vires of the Constitution of India. It has been held by the Hon’ble Apex Court that said provision would infringe upon the right to freedom of expression or in other words, said provision would effect the right of freedom of speech. Thus, invoking of Section 66(A) of the IT Act against petitioner, proceedings is liable to be quashed on the ground said provision having been struck down.
10. Exercise of power under Section 482 of Cr.P.C. would be called under the following exigencies:
a. Where the allegations made in the First Information Repot or the complaint as the case may be, even if taken at their face value and accepted in their entirety and was remain unrebutted do no prima facie constitute an offence or make out a case against the accused.
b. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except the order of the Magistrate within the purview of Section 155 (2) of the Code.
c. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same during the course of investigation do not constitute or disclose the commission of any offence and make out a case against the accused.
d. Where, the allegations in the F.I.R or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a conclusion that there is sufficient ground to proceeding against the accused.
e. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence (as in this case), no investigation is permitted by a police officer without an order of the Magistrate as contemplated under Section 155(2) of the Code f. Where there is an express legal bar engrafted in any provisions of the Code or concerned Act (under which the criminal prosecution has been launched) to the institution and continuance of the proceedings and/or where there is a specific provision of the Code or concerned Act, providing efficacious redress of the grievance for the aggrieved party and g. Lastly, where a criminal proceeding is manifestly initiated with malafide and/or where the proceeding is maliciously initiated with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.
11. Keeping in mind the authoritative principles laid down by Hon’ble Apex Court in the case of STATE OF HARYANA AND OTHERS vs. BHAJAN LAL AND OTHERS vide paragraph 102 referred to supra when facts on hand are examined, charge sheet material itself would disclose that statement which has been made is not by the accused but by one Mr. Anjineya Reddy. Thus, even on merits also petitioner is entitled to the relief sought for.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending against petitioner in C.C. No.22519/2016 registered for the offence punishable under Sections 505, 500, 506 and 504 of IPC on the file of VIII Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed and petitioner is acquitted of aforesaid offences.
SD/- JUDGE MBM