IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7091/2013 BETWEEN:
SRI C N RAVIKIRAN AGED 39 YEARS, S/O LATE C M NAGARAJ, R/O WARD NO.23, K.S. AGRAHARA, KUNIGAL TOWN, TUMKUR DISTRICT - 572101 ALSO R/AT:
NO.1954, 8TH MAIN, "E" BLOCK, II STAGE, RAJAJINAGAR, BENGALURU - 560 010.
(BY SRI RAMESH K R, ADVOCATE) AND:
1. STATE OF KARNATAKA BY HULIYURDURGA POLCIE, KUNIGAL CIRCLE, TUMKURU DISTRICT, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560 001 …PETITIONER 2. SRI RAVI K.N. EXECUTIVE MAGISTRATE PLYING SQUAD 131-KUNIGAL ASSEMBLY CONSTITUENCY ELECTION (FATHER’S NAME NOT KNOWN TO THE PETITIONER) AGE: MAJOR ASSISTANT DIRECTOR DEPARTMENT OF SERICULTURE KUNIGAL TUMKUR DISTRICT – 572130 ... RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE, ADDL. S.P.P., FOR R1 R2 IS SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE CHARGE SHEET FILED BY THE FIRST RESPONDENT AS AGAINST THE PETITIONER IN C.C.NO.695/2013, PENDING ON THE FILE OF THE ADDITIONAL C.J. (JR. DN.) AND JMFC., KUNIGAL, INSOFAR AS IT RELATES TO THE PETITIONER ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The charge sheet is laid against the petitioner under Section 171H of IPC and 127(a) of Representation of the People Act, 1950 (for short ‘the Act’).
2. The substance of the accusation against the petitioner is that, on 26.04.2013, a Tata Sumo vehicle was found carrying seven small flags containing the photograph of accused No.1 and one flex and two hats bearing election symbol of the petitioner and hence, the case has been registered against the petitioner and accused No.2 under Section 171H of IPC and Section 127(a) of the Act.
3. Heard learned counsel for the petitioner and learned Additional State Public Prosecutor appearing for the respondent No.1 – State. Respondent No.2 is duly served and unrepresented.
4. Perusal of the records indicate that FIR was registered by respondent No.2 namely, Executive Magistrate, Plying Squad, Kunigal Assembly Constituency. In the complaint it was alleged that on 26.04.2013, at about 8.00 p.m., the complainant found a Tata Sumo vehicle bearing registration No.KA-01-P-5454 carrying election materials in violation of the Code of Conduct. The said vehicle as well as the driver were taken to the police station and the incriminating materials found in the vehicle were seized.
5. In the FIR, petitioner herein is shown as accused No.1 and accused No.2 is described as unknown. If infact, the vehicle containing the incriminating materials was seized at the spot and the said vehicle was taken to the police station, in all probability, the name of the driver would have been mentioned. This omission leads to doubt the genesis of the incident. From the complaint, it is evident that accused No.1 namely, the petitioner herein was not present at the spot of the occurrence. The case of the prosecution is that, the alleged election materials were carried in Tata Sumo on behalf of the petitioner. It is not forthcoming as to on what basis the prosecution could come to the said conclusion when no one was arrested at the spot. The material produced along with the charge sheet indicate that the driver of the said vehicle was not examined during the investigation. It is only at the time of submission of the charge sheet, the name of one Shafi Ulla, S/o. Kaleem Ulla is included as accused No.2. On going through the records, learned Additional State Public Prosecutor is unable to point out as to when and what stage of the investigation and on what basis, accused No.2 came to be implicated in the charge sheet.
6. Coming to the offence alleged against the petitioner is concerned, he is sought to be prosecuted under Section 171 H of IPC. The Section reads as under:
“Section 171H: Illegal payments in connection with an election: -
Whoever without the general or special authority in writing of a candidate incurs or authorizes 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.”
7. The facts narrated in the complaint do not attract the ingredients of the aforesaid Section. As per the said section, only the person who has been dealing with the election materials or the advertisement is liable for prosecution. The candidate himself unless he is dealing with said material cannot be prosecuted under Section 171H of IPC. There are no such allegations. As a result, there is no basis for the prosecution of the petitioner. There is also no material to show the involvement of the petitioner in the alleged offences.
8. The charge sheet is also filed under Section 127(a) of the Act. There is no such Section in the Act. Section 127A of the Act, reads as under:
“127A. Restrictions on the printing of pamphlets, posters, etc.— (1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.
(2) No person shall print or cause to be printed any election pamphlet or poster— (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and (b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document,— (i) where it is printed in the capital of the State, to the Chief Electoral Officer; and (ii) in any other case, to the district magistrate of the district in which it is printed.
(3) For the purposes of this section,— (a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression “printer” shall be construed accordingly; and (b) “election pamphlet or poster” means any printed pamphlet, hand-bill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates or any placard or poster having reference to an election, but does not include any hand- bill, placard or poster merely announcing the date, time, place and other particulars of an election meeting or routine instructions to election agents or workers.
(4) Any person who contravenes any of the provisions of sub-section (1) or sub- section (2) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.”
9. Even by cursory reference, the said Section is not applicable to the facts of the case. The allegations in the charge sheet is that a Tata Sumo vehicle was found with some election materials. The said fact even if accepted in its entirety would not make any offence either under Section 171H of IPC or Section 127A of the Representation of the People Act, 1951. Therefore, prosecution of the petitioner for the alleged offences being illegal and abuse of the process of the Court, is liable to be quashed.
10. Accordingly, petition is allowed. The charge sheet filed by the first respondent in C.C.No.695/2013, pending on the file of the Additional C.J. (Jr. Dn.) and JMFC, Kunigal, is quashed.
SD/- JUDGE nvj