Allowed

Jagath Prakash Nadda v. State of Karnataka

Karnataka HC7 Aug 2023CRL.P/5488/2023

Case brief

AI extract

What is this about?

In a police case under Section 171-F IPC, the Court held that the complaint lacked prima facie ingredients of undue influence or personation. Relying on Bhajan Lal categories, the Court quashed the criminal proceedings as the allegations were vague and did not make out a case.

What did the court decide?

The entire investigation in Crime No.89/2023 stands quashed qua the petitioner.

Jagath Prakash Nadda Vs State of… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 5488 OF 2023 (482)

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BETWEEN:

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JAGATH PRAKASH NADDA, AGED ABOUT 63 YEARS, S/O DR. NARAYAN LAL NADDA, VIJAYPUR VILLAGE, P.O., AUHAR, TEHSIL JHANDUTTA, BILASPUR DISTRICT, HIMACHAL PRADESH.

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… PETITIONER

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL Date: 2023.08.18 17:20:56 +0530

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(BY SRI. UDAY HOLLA, SR. COUNSEL FOR SRI. VINOD KUMAR & SRI. PAVAN NARANG NEERAJ & MRS. POOJA SAVADATTI, ADVOCATES)

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AND:

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STATE OF KARNATAKA, R/BY HARAPANAHLLI POLICE STATION, VIJAYANAGAR DISTRICT-583131, R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001.

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SRI. VEERANNA LAKKANNAVAR, GOVERNMENT OFFICIAL,

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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ASSISTANT DIRECTOR, PANCHAYAT RAJ DIVISION, HARAPANAHALLI TOWN, VIJAYANAGAR DISTRICT-583131.

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… RESPONDENTS

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(BY SRI. BELLIYAPPA, SPP FOR R1, R2 SERVED)

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THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE INVESTIGATION IN CRIME NO.89 OF 2023 HARAPANAHALLI POLICE STATION, PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR. DN.) AND C.J.M. COURT HARAPANAHALLI FOR THE OFFENCE PUNISHABLE UNDER SECTION 171(F) OF THE IPC AT ANNEXURE-B.

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THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question registration of crime in Crime No.89 of 2023 pending before the Principal Civil Judge & JMFC, Harapanahalli, Vijayanagara District for offence punishable under Section 171F of the IPC.

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Heard Sri Uday Holla, learned senior counsel along with Sri. Vinod Kumar, Mrs.Pooja Savadatti and Sri. Pavan Narang Neeraj for the petitioner and Sri B.A.Belliyappa, learned State Public Prosecutor appearing for respondent No.1.

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3 - NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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Facts adumbrated are as follows:-

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The petitioner is the National President of Bharatiya Janata Party (‘BJP’) and a former Union Minister. He is presently a Member of Parliament from Bilaspur Parliamentary Constituency, in the State of Himachal Pradesh. Elections to the Karnataka State Legislative Assembly were slated to be held on 10^th May 2023 for which Election Code of Conduct was put in operation from 30^th April, 2023. A public meeting was organized by the BJP on 07-05-2023 at the IB Circle, Harapanahalli Assembly Constituency of Vijayanagar District. At about 1.00 p.m. the petitioner is said to have addressed a public meeting wherein it is alleged that he has wooed or threatened voters which was recorded by the officials of Election Commission. Recordings of the public meeting were published in electronic media and social media. This leads to registration of a complaint before the 1^st respondent/Police on 9-05-2023 for the offence punishable under Section 171F of the IPC. Since Section 171F is a non-cognizable offence, the Police registered NC No.11 of 2023 and transmitted the file to the learned Magistrate seeking permission to register a FIR. In terms of Section 155 of the Cr.P.C, for registration of FIR on a

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4 - NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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non-cognizable offence, permission of the Magistrate is imperative. The permission comes to be granted. After the grant of permission, the issue becomes crime in Crime No.89 of 2023. The registration of crime leads the petitioner to this Court in the subject petition.

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The learned senior counsel, would contend that a perusal at the complaint would not indicate any ingredient of Section 171F of the IPC. Therefore, the very registration of crime suffers from want of bona fides. He would further contend that the learned Magistrate has accorded his permission by the word “permitted” which does not bear any application of mind and, therefore, is contrary to law. He would seek quashment of proceedings.

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Per contra the learned State Public Prosecutor Sri B.A.Belliyappa, would vehemently refute the submissions to contend that the issue is still in the crime stage. At least investigation should be permitted. Without permitting investigation if the Court were to quash the proceedings, it would be contrary to several judgments of the Apex Court which hold that the complaint cannot be treated as an

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5 - NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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encyclopedia of offences. He would contend that even if the Court wants to set aside registration of crime on the ground that the learned Magistrate has not applied his mind, the matter could be remitted back to the hands of the learned Magistrate for appropriate action in accordance with law.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The incident that led to registration of crime, is as narrated hereinabove, and would not require any reiteration, as it is a solitary incident of speaking in a public gathering. The allegation is threatening or wooing the voters. A complaint comes to be registered by the flying squad team of election commission on 09-05-2023. Since the entire issue has sprung from the complaint, I deem it appropriate to notice the complaint which reads as follows:

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“ vÁ®ÆPÀÄ ¥ÀAZÁ¬Äw PÁAiÀiÁð®AiÀÄ, ºÀgÀ¥À£ÀºÀ½î

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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ºÀgÀ¥À£ÀºÀ½î «dAiÀÄ£ÀUÀgÀ f¯Éè ”

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8 - NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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The complaint is for the offence punishable under Section 171F

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of the IPC. Section 171F reads as follows:

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“ 171-F. Punishment for undue influence or

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personation at an election .—Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

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Section 171F punishes those who would commit the offence of undue influence or personation at an election with imprisonment, which may extend to a term of one year. Section 171F requires two ingredients to be present viz., undue influence or personation at an election. Undue influence and personation, are defined under Sections 171C and 171D. They read as follows:

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“ 171-C. Undue influence at elections .—(1) Who ever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

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(2) Without prejudice to the generality of the provisions of sub-section (1), whoever—

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(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or

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9 - NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure,

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shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).

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(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.

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171-D. Personation at elections .—Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election:

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Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force insofar as he votes as a proxy for such elector.”

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Whoever would voluntarily interfere or attempt to interfere with

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the free exercise of any electoral right commits the offence of undue influence and whoever at an election applies for a voting paper or votes in the name of other person, living or dead is said to be guilty of offence of personation in the elections. What is laid against the petitioner is Section 171F of the IPC. If the

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complaint is considered on the touchstone of the contents of Sections 171C, 171D and 171F, what would unmistakably emerge, is a reckless registration of crime and a loosely laid offence.

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The complaint nowhere narrates that the petitioner has unduly interfered with the free exercise of anyone’s electoral right, nor does it narrates that the petitioner is guilty of personation as defined under Section 171D of the IPC in the elections. An incident to become an offence under Section 171F, the minimum requirement is narration in the complaint of the ingredients of undue influence or personation. The allegation is that Code of Conduct has been violated by the petitioner, on speaking at a public gathering on 07-05-2023 by threatening the voters. The complaint is so vague that it would daunt vagueness itself. On such a vague complaint which is loosely made against the petitioner, the crime in Crime No.89 of 2023 is registered and the damocles sword of crime is left hanging on the petitioner projecting it to be an offence.

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If on the aforesaid facts further investigation is permitted to continue against the petitioner it would become a

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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classic case of permitting investigation in a reckless registration

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of crime which on the face of it, would become an abuse of the process of law. Reference being made to the judgment of the

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Apex Court in the case of STATE OF HARYANA AND OTHERS v. BHAJAN LAL AND OTHERS¹ in the circumstances would

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become apposite. The Apex Court has held as follows:

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“…. …. ….

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102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute

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1 1992 Supp (1) SC 335

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or 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 proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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accused and with a view to spite him due to private and personal grudge. ”

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(Emphasis supplied)

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The Apex Court lays down 7 postulates of interference at the stage of registration of crime. The first postulate is that where the allegations even if they are taken on their face value they would not make out a case against the accused. The fifth postulate is that where the allegations in the FIR are so absurd and inherently improbable, it would be a sufficient ground to quash the proceedings. The seventh postulate is where a criminal proceeding is manifestly attended with mala fides or is maliciously instituted with a view to spite the accused, such proceedings should be quashed.

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Three of the aforesaid postulates become completely applicable to the facts of the case at hand. Therefore, permitting further proceedings would be putting a premium upon reckless registration of crime against the petitioner. Thus, this should be nipped in the bud by entertaining the petition in exercise of the jurisdiction of this Court under Section 482 of the Cr.P.C. as the complaint itself nowhere makes out any offence against the petitioner that would become punishable under Section 171F of the IPC. In the light of the issue being

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NC: 2023:KHC:27703 CRL.P No. 5488 of 2023

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answered on the merit of the matter itself, the submission with regard to non-application of mind by the learned Magistrate while granting permission for registration of FIR and on that score matter being remitted back to the learned Magistrate for re-consideration, would pale into insignificance. Finding no

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merit in the complaint, the petition deserves to succeed.

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11. For the aforesaid reasons, I pass the following:

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ORDER

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(i) Petition is allowed.

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(ii) The entire investigation in Crime No.89/2023 of Harapanahalli Police Station, pending on the file of the Principal Civil Judge (Jr. Dn.), CJM Court Harapanahalli stands quashed qua the petitioner.

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Sd/JUDGE

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Rsh/Ct:Bck List No.: 19 Sl No.: 12

Jagath Prakash Nadda v. State of Karnataka

Case brief

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Jagath Prakash Nadda v. State of Karnataka

Case brief

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