Allowed

Sri Vinay Kulkarni v. the State of Karnataka

Karnataka HC8 Sept 2023CRL.P/8201/2023

Case brief

AI extract

What is this about?

The Karnataka High Court quashed an FIR and charge sheet under the Karnataka Epidemic Diseases (Ordinance) Act, 2020. Relying on a prior judgment, the court held that an offence under Section 5 cannot be laid without a Section 4 notification, and the alleged conduct under Section 75 did not constitute abandonment or neglect of the children involved.

What did the court decide?

The FIR in Crime No.112/2021 and the Charge Sheet in C.C. No.515/2021 stood quashed.

Sri Vinay Kulkarni Vs the State of… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 8201 OF 2023

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BETWEEN:

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SRI. VINAY KULKARNI, AGE. 55 YEARS, MEMBER OF LEGISLATIVE ASSEMBLY KARNATAKA, R/O BHARAKOTI, SHIVAGIRI, DHARWAD, DIST. DHARWAD-580001.

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SRI. SHIVASHANKAR NILAKANTAPPA HAMPANNAVAR, AGE. 60 YEARS, OCC. CONGRESS WORKER, R/O CHARANTIMATH GARDEN, DHARWAD, DIST. DHARWAD-580001.

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SRI. RAVI TULAJAPPA KABADI, AGE. 52 YEARS, CONGRESS WORKER, R/O NEAR ICE FACTORY, RYATANSA APARTMENT, DHARWAD, DIST. DAHRWAD-580001.

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Digitally signed by VISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2023.09.13 12:27:07 +0530

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PRABHU VEERAPAKSHAPPA DAVANSHI, AGE. 50 YEARS, CONGRESS WORKER, R/O SAPTAPUR MAIN ROAD,

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ISHWARYA COMPLEX, DHARWAD, DIST. DHARWAED-580001.

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SRI. BASAVARAJ NAGAPPA HEBBALLI, AGE. 39 YEARS, CONGRESS WORKER, R/O KAMALAPUR, DHARWAD, DIST. DHARWAD-580001.

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SRI. BASAVARAJ PEERAJI JADHAV, AGE. 46 YEARS, CONGRESS WORKER, R/O UDAPI ONI, HOSAYALLAPUR, DHARWAD, DIST. DHARWAD-580001.

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SRI. CHANDRASHEKHARRUDRAYYA PUJAR, AGE. 40 YEARS, CONGRESS WORKER, R/O H.NO. 46, 2^ND CROSS, CHANNABASAVESHWAR NAGAR, BELAGAVI, DIST. BELAGAVI-580001.

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GANESH MAHADEVAPPA MUDHOL, AGE. 39 YEARS, CONGRESS WORKER, R/O BHUSAPPA CHOUK, MEDAR ONI, DHARWAD, DIST. DHARWAD-580001.

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SRI. NAGARAJ MALLESHAPPA GOURI, AGE. 42 YEARS, CONGRESS WORKER, R/O CHANDARNATH NAGAR, JAINAGAR, HUBBALLI, DIST. DHARWAD-580001.

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SRI. NAVEEN PRAKASH KADAM, AGE. 37 YEARS, CONGRESS WORKER, R/O UDAPI ONI, HOSAYALLAPUR, DHARWAD, DIST. DHARWAD-580001.

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SRI. PRADEEP MALLANGOUDA PATIL, AGE. 55 YEARS, CONGRESS WORKER, R/O GOUDAR ONI, SAIDAPUR, DHARWAD, DIST. DHARWAD-580001.

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SRI. RUDRAPPA PADMAPPA KOMPANNAVAR, AGE. 50 YEARS, CONGRESS WORKER, R/O MOGAD, TQ. DHARWAD, DIST. DHARWAD-580001.

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SRI. NOOR HAJARATALI NADAF, AGE. 49 YEARS, CONGRESS WORKER, R/O YETTINGUDDA, DHARWAD, DIST. DHARWAD-580001.

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SRI. SHAMBUGOUDA RUDDARGOUDA SALIMANI, AGE. 50 YEARS, CONGREWSS WORKER, R/O UDAPI ONI, HOSAYALLAPUR, DHARWAD, DIST. DHARWAD-580001.

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SRI. PARAMAESHWAR SHANKAR KALE, AGE. 44 YEARS, CONGRESS WORKER, R/O SHIVALLI, DHARWAD,

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DIST. DHARWAD-580001.

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SRI. ANILKUMAR VEERAPPA PATIL, AGE. 56 YEARS, FORMER CONGRESS PRESIDENT, R/O KARWAR ROAD, NEAR ASI HOSPITAL, DHARWAD, DIST. DHARWAD-580001.

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SRI. ALTAFHUSEN ALLABAKSHA HALLUR, AGE. 36 YEARS, CONGRESS WORKER, R/O. KHASABAPETH MAIN ROAD, KHASABAPETH NEAR POLICE STATION, DHARWAD, DIST. DHARWAD-580001.

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SRI. ATMANAND BASAPPA ANGADI, AGE. 36 YEARS, CONGRESS WORKER, R/O DASANKOPPA POST. NARENDRA, TQ. DHARWAD, DIST DHARWAD-580001.

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… PETITIONERS

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(BY SRI. K.S. PATIL, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY POLICE INSPECTOR, BELAGAVI RURAL POLICE STATION, DIST. BELAGAVI-590001.

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THE POLICE INSPECTOR, HIREBAGEWADI POLICE STATION, TQ & DIST. BELAGAVI -591109,

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BOTH R/BY THE STATE PUBLIC PROSECUTOR, AG OFFICE, HIGH COURT OF KARANATAKA, BENCH AT DHARWAD-580011.

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… RESPONDENTS

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(BY SMT. YASHODA, HCGP)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN CC NO. 515/2021 ON THE FILE OF JMFC II COURT BELAGAVI AND QUASH THE FIR, IN BELAGAVI RURAL PS CRIME NO. 112/2021, DATED 21.08.2021 REGISTERED BY THE RESPONDENT/BELAGVI RURAL PS, COMPLAINT DATED 21.08.2021 AND ALL FURTHER PROCEEDINGS IN C.C.NO. 515/2021 PENDING ON THE FILE OF JMFC II COURT, BELAGAVI FOR THE OFFENCES P/U/SEC. 4, 5(1) (4) OF KARNATAKA EPIDEMIC

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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DISEASES (ORDINANCE) ACT, 2020 (VIDE ANNEXURE-A, B AND C RESPECTIVELY). THIS PETITION, COMING ON FOR ADMISION, 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 the proceedings in C.C. No.515/2021 for the offences punishable under Sections 4, 5(1)(4) of the Karnataka Epidemic Diseases (Ordinance) Act, 2020.

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Heard the learned counsel Sri.K.S.Patil appearing for the petitioners and the learned HCGP.

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Learned counsel for the petitioners submits that the issue in the lis stands answered by several judgments rendered by this Court. This Court in the case of D.K.Shivakumar vs. State of Karnataka and another in Criminal Petition No.3328/2023 has held as follows:

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7. The issue lies in a narrow compass. What triggers registration of the crime is a rally that was held by the Congress party, the President of which is the petitioner. On 10-01-2022, when the rally was in its motion, the President i.e., the

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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petitioner between 11.30 a.m. and 12.30 p.m. visits Vishwodaya High School. The children of the school came out of their classes and posed for a picture with the President. This incident becomes a crime in Crime No.3 of 2022 for the afore- quoted offences. What is alleged against the petitioner is, violation of the provisions of the Karnataka Epidemic Diseases Act and Section 75 of the Act. The violation is in particular to Section 5(3A) of the Karnataka Epidemic Diseases Act and Section 75 of the Act. Therefore, it becomes germane to notice those provisions of law. Section 5 of the Karnataka Epidemic Diseases Act reads as follows:

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"5. Prohibition of Contravention or obstruction of Public Servant. -(1) No person, institution or company shall contravene or disobey any of the provisions of Section 4, rules, regulation or order made under this Act.

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(2) No person shall obstruct any officer or any public servant while acting or purporting to act or discharging any duty in pursuance to any provisions of this Act, rules, regulations or orders made there under.

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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(3) No person shall indulge in any act of violence against a public servant or cause any damage or loss to any public or private property during an epidemic.

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(3-A) whoever contravenes the provisions of sub-section (1) shall be punished with such fine as may be prescribed in rules or in regulations, which may extend to fifty thousand rupees or with imprisonment for a term which may extend up to three months or with both.

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(4) Whoever contravenes any of the provisions of sub-section (2) or (3) shall on conviction be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.

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(5) Whoever, while committing an act of violence against a public servant, causes grievous hurt as defined in Section 320 of Indian Penal Code, 1860 (Act 45 of 1860) to such person, shall be punished with imprisonment for

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees."

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(Emphasis supplied)

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Section 5(3A) mandates that whoever contravenes sub-section (1) shall be punished in terms of sub-section (3A). Sub-section (1) concerns that any person, institution or company contravening or disobeying any provisions of Section 4, Rules or Regulations made under the Act would become an offence and the offence would become punishable under sub-section (3A).

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8. Therefore, it becomes germane to notice Section 4 of the Karnataka Epidemic Diseases Act as the contravention of Section 4 would result in an offence under Section 5. Section 4 of the Karnataka Epidemic Diseases Act reads as follows:

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"4. Power to take special measures and specify regulations as to epidemic disease. - (1) When at any time the Government is satisfied

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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that the State or any part thereof is visited by or threatened with an outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such disease or the spread thereof and require or empower Deputy Commissioner and/or Municipal Commissioners to exercise such powers and duties as may be specified in the said regulations or orders.

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(2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take measures and specify regulations,-

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(a) to prohibit any usage or act which the Government considers sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the State;

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(b) to inspect the persons entering the State by air, rail, road, sea or any other means

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or in quarantine or in isolation, in hospital, temporary accommodation, home or otherwise of persons suspected of being infected with any such disease by the officers authorized in the regulation or orders;

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(c) to seal State or district borders for such period as may be deemed necessary;

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(d) to impose restrictions on the operation of public and private transport;

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(e) to prescribe social distancing norms;

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(f) to restrict or prohibit congregation of persons in public places and religious institutions;

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(g) to regulate or restrict the functioning of offices, Government and Private institutions in the State; and educational

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(h) to impose prohibition or restrictions on the functioning of shops and commercial establishments, factories, workshops and godowns;

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to restrict duration of services in essential or emergency services such as banks, media,

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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health care, food supply, electricity, water, fuel, etc.,;

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(1) to restrict social, political, sports, entertainment, academic, cultural or religious functions or gatherings; and

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(k) such other measures as may be necessary for the regulation and prevention of epidemic diseases as decided by the Government."

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Section 4 mandates that in order to take special measures and specify regulations as to epidemic disease, the Government by a notification in the Official Gazette specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such disease. Therefore, the fulcrum of Section 4 is issuance of a notification in the Official Gazette notifying temporary regulations or orders. It is after such notification under Section 4, if a person contravenes or disobeys those Regulations so notified, it would become an offence under Section 5 for contravention of Regulations notified under Section 4.

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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9. It is admitted fact that no notification is issued by the State Government under Section 4 of the Karnataka Epidemic Diseases Act. If there is no notification issued under Section 4, an offence under Section 5 cannot be laid against any person as there is no regulation that a person would contravene as contravention of the Regulations cannot be imaginary. Therefore, the very offence alleged against the petitioner was fundamentally flawed.

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10. The other offence alleged is under Section 75 of the Act. Section 75 of the Act reads as follows:

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" 75. Punishment for cruelty to child. - Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both:

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NC: 2023:KHC:32402 CRL.P No. 8201 of 2023

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Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases:

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Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees:

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Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees."

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Section 75 makes it an offence if the person who is in- charge of the child or has control over the child assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause the child unnecessary mental or physical suffering shall become punishable for a term which may extend upto 3 years.

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11. The fact that leads to the said allegation is that, the petitioner posed for a picture with the children at Vishwodaya High School, Kanakapura Taluk. The children were neither under the care or protection of the petitioner nor was he in- charge of the children. The children come out of the classes for the picture and the matter ends there. The petitioner did not have any control or in-charge over the children. The very offence is loosely laid against the petitioner, much less to say he is alleged of assault, abandoning, abusing or exposing or neglecting the children. The aforesaid facts cannot even lead to the alleged offences against the petitioner.”

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The learned HCGP would not dispute the position of law as is deemed (supra).

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For the aforesaid reasons, the following:

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ORDER

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(i) Criminal petition is allowed.

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(ii) FIR in Crime No.112/2021 dated 21.08.2021

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registered by the Belagavi Rural Police Station and Charge Sheet filed in C.C. No.515/2021 pending before the JMFC II Court, Belagavi stand quashed.

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(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against the other accused pending before the concerned Court.

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rsh/ct:bck List No.: 19 Sl No.: 17

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Sd/JUDGE

Sri Vinay Kulkarni v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Vinay Kulkarni v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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