IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO. 4243/2019 (GM-RES) BETWEEN:
Sri. Rajashekarananda Swamiji Aged about 46 years Shrimad Vidyamanya Teertha Samsthanam Vajradehi Gurupura Mutt Mangaluru Taluk, D.K.-575001. ... Petitioner (By Sri. Aruna Shyam .M., Advocate) AND:
1. The State of Karnataka by Mangaluru Rural Police Station Mangaluru Rep. by State Public Prosecutor High Court of Karnataka Bengaluru – 560001.
2. P.S.I. Crime Sri. Venkatesh Mangalore Rural P.S. Kulshekara Kaikamba Mangalore, D.K.575007. ... Respondents (By Sri. S. Chandrashekaraiah, HCGP) This petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the entire proceedings initiated against the petitioner in C.C.No.1426/2017 arising out of Crime No.426/2014 by the Mangaluru Rural Police Station, on the file of the Hon’ble J.M.F.C.-III at Mangalore along with FIR, complaint and charge sheet for the offences U/S. 143, 341, 290, 153(A) r/w 149 of IPC also the order of taking cognizance dated 03.05.2017 on the file of the Hon’ble JMFC – III at Mangalore same is produced at Annexure-A, B, C and D and etc.
This petition coming for Preliminary Hearing this day, the Court made the following:
O R D E R Though matter is listed for preliminary hearing, it is taken up for final disposal.
2. Petitioner, who has been arrayed as accused No.7 in C.C.No.1426/2017 (arising out of Crime No.426/2014) registered by the Mangaluru Rural Police Station for the offences punishable under Sections 143, 341, 290, 153(A) read with Section 149 of IPC is before this Court for quashing of said proceedings.
3. Case of the Prosecution is that on 05.12.2014 during night hours, some unknown persons from Muslim community are said to have assaulted and tried to kill Hindu Community people, upon which a case and counter case came to be registered in Crime Nos.422/2014 and 423/2014 and police were deployed to maintain peace and order. On 06.12.2014, complainant along with his staff while on duty found petitioner having assembled, along with other accused persons, numbering about 100 and had formed an unlawful assembly near Vamanjoor Junction, conducted a Dharana by shouting slogans against Muslim Community. On account of such protest being held, a complaint came to be lodged which was registered in Crime No.426/2014 for the aforesaid offences. After completion of investigation, charge sheet has been filed and learned Magistrate has taken cognizance for the offences punishable under Sections 143, 341, 290, 153(A) read with Section 149 of IPC.
4. I have heard arguments of Sri. Aruna Shyam, learned counsel appearing for petitioner and Sri. S. Chandrashekaraiah, learned High Court Government Pleader appearing for respondents and also perused records.
5. It is the contention of Sri. Aruna Shyam that learned trial Judge has mechanically taken cognizance without judicious application of mind. He would contend right to protest is a fundamental right guaranteed under Articles 19(1)(a) and 21 of Constitution of India and holding protest by itself would not attract the penal provisions to be invoked against petitioner and even a bare reading of the complaint would not disclose any such offence having been committed as alleged against petitioner. He would elaborate his submissions by contending that Section 153(A) of IPC which has been invoked is a cognizable offence and jurisdictional police ought to have taken sanction under Section 196 of Cr.PC which was not done in the instant case and as such, proceedings initiated against petitioner is liable to be quashed.
6. Per contra, learned Government Advocate supports the prosecution initiated against the petitioner and would submit that on account of unlawful assembly which was at the instance of petitioner, prosecution has rightly proceeded against them by registering a case for the offences set out in the charge sheet and it is for accused to appear before learned Magistrate and face the trial.
7. Having heard the learned counsel for parties and on perusal of records, it clearly discloses that Section 153(A) of IPC has been invoked against petitioner on the ground that petitioner had indulged in holding a Dharana making speech promoting enemity between different groups on account of religion/race which caused prejudice to maintain harmony in society. Mandate of Section 196 of Cr.P.C., would disclose that no Court can take cognizance of any offence punishable under Chapter VI or under Section 153(A), 295A, 505 of IPC except with the previous sanction of the Central Government or of the State Government.
8. Learned High Court Government Pleader is unable to place any material to show that as on the date of learned Magistrate taking cognizance, such sanction was obtained from appropriate Government. As such, proceedings cannot be continued against petitioner.
Insofar as other offences which have been initiated against the petitioner, based on omnibus statement/allegation made in the complaint and there being no particular incident which has been imputed against petitioner and also charge sheet material not disclosing any offence against the petitioner i.e., for the offences punishable under Sections 143, 341 and 290, continuation of proceedings against petitioner for said offence would be abuse of process of law as held by Hon’ble Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others reported in 1992 SUPP (1) SCC 335, wherein it has been observed that ‘where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for Proceedings against accused’ and if the accused is made to undergo the ordeal of trial it is not only abuse of process of law and also it would be waste of precious judicial time.
In that view of the matter, continuation of proceedings against the petitioner would not be called for. Hence, the following:
ORDER 1. Writ petition is allowed.
2. Proceedings pending in C.C.No.1426/2017 (arising out of Crime No.426/2014) registered by the Mangaluru Rural Police Station against petitioner for the offences punishable under Sections 143, 341, 290, 153(A) read with Section 149 of IPC insofar as petitioner is concerned is quashed.
3. However, State is at liberty to proceed against petitioner, if so advised after obtaining proper sanction.
SD/- JUDGE SN