Allowed

Basanagouda Patil (Yatnal) Mla v. State of Karnataka

Karnataka HC7 Nov 2024CRL.P/1837/2024

Case brief

AI extract

What is this about?

Petitioner, an MLA, challenged proceedings in a criminal case involving alleged derogatory statements about Tippu Sultan during an election rally. The High Court, following Vijesh Pillai, quashed proceedings because the lower court's order permitting investigation of the non-cognizable offense lacked requisite application of mind.

What did the court decide?

Proceedings in C.C. No. 30799/2023 qua the petitioner were quashed.

Basanagouda Patil (Yatnal) Mla Vs State of Karnataka — Election Law | Karnataka HC (2024)

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 1837 OF 2024

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BETWEEN:

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BASANAGOUDA PATIL (YATNAL) MLA AGED ABOUT 48 YEARS PRESENT AT VIJAYAPURA, VIJAYAPURA DHARWAD, KARNATAKA ADDRESS AS PER CHARGE SHEET

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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S/O LATE SRI RAMANAGOUDA PATIL, AGED ABOUT 60 YEARS, OCC. MEMBER OF LEGISLATIVE ASSEMBLY, VIJAYAPURA CITY CONSTITUENCY-30, R/AT POST AINAPUR, FARM HOUSE, SINDAGI ROAD, VIJAYAPURA DISTRICT-586101.

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…PETITIONER

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(BY SRI. VENKATESH P. DALWAI, ADVOCATE)

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2 - NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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AND:

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STATE OF KARNATAKA

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BY KUNDAGOL POLICE STATION, REP. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, BENGALURU - 560 001.

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KRISHNAMURTI B CHATE S/O NOT KNOWN, AGED ABOUT 59 YEARS, OCCUPATION: EXECUTIVE ENGINEER, ENGINEERING DIVISION, PANCHAYAT RAJ, HUBBALLI TALUK, DHARWAD DISTRICT, KARNATAKA - 580 025.

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…RESPONDENTS

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(BY SRI. B.N. JAGADEESHA, ADDL. SPP FOR R1; SRI. T.G. ANANDA SHETTI, ADV. FOR R2)

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THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO 1) QUASH THE ENTIRE CHARGE SHEET AND ITS FURTHER PROCEEDINGS IN C.C.NO.30799/2023, FILED BY THE RESPONDENT KUNDAGOL P.S., IN CR.NO.58/2023 FOR THE ALLEGED OFFENCES P/U/S 123(3A) AN D125 OF REPRESENTATION OF PEOPLE ACT, PENDING ON THE FILE OF THE 42ND ADDL. CMM BENGALURU (SPECIAL COURT FOR TRIAL OF CASES AGAINST SITTING AS WELL AS FORMER MP'S / MLA'S TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA AND ETC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner is before this Court calling in question the proceedings in C.C.No.30799/2023, pending on the file of the 42^nd Additional Chief Metropolitan Magistrate, Bengaluru.

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Heard the learned counsel Sri.Venkatesh P. Dalwai, appearing for the petitioner, the leaned Additional State Public Prosecutor Sri.B.N.Jagadeesha, appearing for respondent No.1 and the learned counsel Sri.T.G.Ananda Shetti, appearing for respondent No.2.

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The second respondent is the complainant. A complaint comes to be registered on 01.05.2023. That while he was doing his duties as a member of the Flying Squad Team during 2023, as elections for the Karnataka Legislative Assembly between 1.00 p.m. and 2.30 p.m., the petitioner addresses a public rally on behalf of the BJP candidate and while making a speech, he said to have stated some derogatory sentences about Tippu Sultan. Based upon the aforesaid

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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alleged derogatory statement, a complaint comes to be registered by the second respondent, which becomes a crime in Crime No.58/2023 for offences punishable under Sections 123(3A) and 125 of the Representation of People Act, 1950, 1951, 1989 (hereinafter referred to as the 'Act' for short). The Police after investigation filed a charge sheet against the petitioner and the concerned Court takes cognizance and issues summons to the petitioner in C.C.No.30799/2023. The aforesaid action of the concerned Court is what drives the petitioner to this court in the subject petition.

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The learned counsel Sri.Venkatesh P. Dalwai,

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appearing for the petitioner, submits that the alleged act of defaming Tippu Sultan was after completing the public rally. Though there were thousands of members gathered to hear the speech of the petitioner, the Investigating Officer has not chosen to record the statement of any eyewitness. The learned counsel would further contend that the learned Magistrate while

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permitting registration of crime on a non-cognizable offence has not applied his mind, as is necessary in law that laid down

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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by this Court in the case of VIJESH PILLAI VS. STATE OF KARNATAKA¹ .

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Per contra, the learned Additional State Public Prosecutor Sri.B.N.Jagadeesha and the learned counsel Sri.T.G.Ananda Shetti, in unison would seek to defend the action of registration of the crime and filing of the charge sheet contending that it is a matter of trial for the petitioner to come out clean. Insofar as the order of the learned Magistrate is concerned, they would contend that it is a matter of record. The learned Magistrate has applied his mind and then passed the order. In the light of filing of the charge sheet the Court should not put the clock back and quash the crime on the score of non-application of mind by the learned Magistrate.

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I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The issue at this juncture on the aforesaid submissions lie in a

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1 2023 SCC Online KAR 32

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6 - NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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narrow compass. On the merit of the matter, the petitioner has his defence and the respondents have the allegations the alleged offences are the ones punishable under Section 123(3A) and 125 of the Act. They are admittedly non-cognizable. The flying squad is said to have witnessed the speech of the petitioner in which it is alleged that derogatory words of defaming Tippu Sultan took place and therefore, the complaint emerges. The complaint reads as follows:

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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05-2023 ರಂದು �ಾವn %6ೇಹರಕುj �ಾ'ಮದ�C ಕತ�ವ-ದ @ೕ�,ಾEಗ ಕುಂದ�ೋಳ 8Lಾನಸ9ೆ ಚು�ಾವ�ೆ Mೇತ'ದ 9ಾರ�ೕಯ ಜನSಾ ಪoದ ಅಭ-q�#ಾದ 'ೕ ಎd ಆ3 Uಾ!ೕಲ ರವರ ಪರ0ಾD %6ೇಹರಕುj �ಾ'ಮದ�C 'ೕ ಬಸನ�ೌಡ Uಾ!ೕಲ ಯSಾbಳ tಾಸಕರು 8ಜಯಪuರ ರವರು 6ೋv tೆwೕ Jಾಗೂ 0ೇ>�ೆ �ಾಯ�ಕ'ಮದ�C &ಾಗವ%c 9ಾಷಣ Gಾಡು�Tರು0ಾಗ !ಪnx ಸುIಾTನರವರವರು ಹ6ಾಮ�ೋರ6ಾDದುE ಲMಾಂತರ %ಂದೂಗಳನb �ೊIೆ GಾZರುSಾT6ೆ ಎಂದು �ೋಮು OೌJಾದ�Sೆ ಕದಡುವಂತಹ &ಾಷಣ GಾZ !ಪnx ಸುIಾTನರವ��ೆ ಅವJೇಳನ GಾZದುE Jಾಗೂ ನಮ) ಸ�ಾ�ರ ಬಂದ�C �ಾ'ಮ ಪಂ ಾಯತಗಳ�C Jಾ\ರುವ, !ಪnx ಸುIಾTನರವರ �ೕlೋವನುb \ತುT Jಾಕಲು ಆ,ೇ`ಸುSೆTೕ0ೆ ಎಂದು ಕೂZದ ಜನರ�C �ೋಮು OೌJಾಧ�Sೆ�ೆ ದ�ೆF ಬರುವಂತಹ 9ಾಷಣ GಾZದುE ಇರುತT,ೆ .

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�ಾರಣ >�ಾಂಕ: 01-05-2023 ರಂದು ಮ,ಾ-ಹb 01-00 ಗಂlೆmಂದ ಮLಾ-ಹb 02-30 ಗಂlೆ ನಡು8ನ ಅವ�ಯ�C %6ೇಹರಕುj �ಾ'ಮದ�C 6ೋv tೆwೕ Jಾಗೂ 0ೇ>�ೆ 9ಾಷಣದ� @ೕIೆ ನಮೂ>cದ 8ಧ�ಾಸ9ೆ ಚು�ಾವjಯ 9ಾರ�ೕಯ ಜನSಾ ಪoದ ಅಭ-q�#ಾದ 'ೕ ಎd ಆ3 Uಾ!ೕಲ ರವರ ಪರ0ಾD %6ೇಹರಕುj �ಾ'ಮದ�C 'ೕ ಬಸನ�ೌಡ Uಾ!ೕಲ ಯSಾbಳ tಾಸಕರು 8ಜಯಪuರ ರವರು 6ೋv tೆwೕ Jಾಗೂ 0ೇ>�ೆ �ಾಯ�ಕ'ಮದ�C &ಾಗವ%c 9ಾಷಣ Gಾಡು�Tರು0ಾಗ !ಪnx ಸುIಾTನರವರವರು ಹ6ಾಮ�ೋರ6ಾDದುE ಲMಾಂತರ %ಂದೂಗಳನb �ೊIೆ GಾZರುSಾT6ೆ ಎಂದು �ೋಮು OೌJಾದ�Sೆ ಕದಡುವಂತಹ &ಾಷಣ GಾZ !ಪnx ಸುIಾTನರವ��ೆ ಅವJೇಳನ GಾZದುE Jಾಗೂ ನಮ) ಸ�ಾ�ರ ಬಂದ�C �ಾ'ಮ ಪಂ ಾಯತಗಳ�C Jಾ\ರುವ !ಪnx ಸುIಾTನರವರ �ೕlೋವನುb \ತುT Jಾಕಲು ಆ,ೇ`ಸುSೆTೕ0ೆ ಎಂದು ಕೂZದ ಜನರ�C �ೋಮು OೌJಾಧ�Sೆ�ೆ ದ�ೆF ಬರುವಂತಹ 9ಾಷಣ GಾZದುE Gಾದ� ಚು�ಾವ�ೆ /ೕ� ಸಂ%Sೆ ಉಲCಂಘ�ೆ GಾZದುE ಆದE�ಂದ ಚು�ಾವ�ಾ��ಾ�ಗಳ� 70-ಕುಂದ�ೋಳ 8Lಾನಸ9ಾ Mೇತ' ರವರ Gೌ{ಕ ಆ,ೇಶ ಪ|ೆದು�ೊಂಡು ಈ >ವಸ ತಡ0ಾD ಬಂದು =#ಾ�> /ೕZದುE ಇರುತT,ೆ .

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Received & Registered >:02-05-2023 at 12-30 ಕುಂದ�ೋಳ P.S. N.C NO: 23/2023 PÀ®A: 123 (3A) RP Act"

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NC: 2024:KHC:44928 CRL.P No. 1837 of 2024

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The police after investigation have filed a charge sheet. The summary of the charge sheet as obtaining in column No.17 reads as follows:

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"17. �ೇcನ ಸಂ‡ಪT Oಾ6ಾಂಶ

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C¥ÀgÁzsÀ, PÀ®A: 123(3J) 125 D¦ð DPÀÖ "

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The issue now would be whether trial should be permitted, in a case where the learned Magistrate permits registration of the crime for non-cognizable offences in an order which does not bear even a semblance of application of mind. The order granting permission reads as follows:

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"Perused the requisition and the complaint. The office alleged is reg Sec 123(3A) of RP Act and promotion or attempt to promote feeling of enimity or hatredness is alleged in the complaint. Therefore, this is a fit case to be investigated.

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Hence, necessary to grant permission to investigate the offence, by PSI of Kundgol PS. Hence, permitted to investigate by PSI of Kundgol PS. Issue intimation by endorsement on true copy of requisition furnished by the PS 430 of Kundgol PS.

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Sd/I Addl. Sr. Civil Judge & JMFC Hubli and I/c Civil Judge & JMFC Kundgol"

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10. This Court, in the case of VIJESH PILLAI VS. STATE

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OF KARNATAKA² , has held as follows:

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" 7. A complaint comes to be registered before the K.R. Puram Police Station alleging intimidation or threatening the life of the complainant. The complaint reads as follows:

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“Sub: Complainant against Mr.Vijesh Pillai for threatening me to life.

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With regard to the above mentioned subject I would like to bring to you kind attention that a gentleman from kerla named Vijesh Pillai came to meet me at Zuri Hotel, Bengaluru initially asking me for an interview and told me he wants to meet me and discuss above the same. Last Saturday, I went with family to the hotel I mentioned with my family and these after 5 minutes of police introduction, he said was sent by the party secretary, Mr. Govindan to settle the issue between Hon’ble CM of kerala, his family and as a settlement amount they will provide 301 crores INR to leave Bengaluru in a weeks time and go absconding. It I do not agree to the same

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2 2023 SCC Online KAR 32

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then he will have to look for alternative option like charging false case against me by putting contrabands is my baggage while traveling or will kill me so that all issues will settle down. They will also do harm to my family member to teach me a lesson, the has given me week time to think and decide.

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I hereby request the authorities to please take necessary action to protect me and my family from this threat for life as I have a small son going to school.

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I humbly prays to your goodself office to provide me with protection to body and life.

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Kerala police used to provide the same in Kerala when I was there.”

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(Emphasis added)

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The complainant when approached K.R.Puram Police Station, a non-cognizable report is made and a requisition is taken to the learned Magistrate to register a crime on such non-cognizable report as the facts would lead to an offence under Section 506 of the IPC. Section 506 of the IPC reads as follows:

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“ 506. Punishment for criminal intimidation .— Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

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if threat be to cause death or grievous hurt, etc .—and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

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Section 506 deals with criminal intimidation. The ingredients of criminal intimidation are found in Section 503 of the IPC. Whoever threatens another with any injury to his person, reputation or property with intent to cause alarm to that person is said to have criminally intimated the victim. Therefore, the complaint did make out certain ingredients of Section 503. Since Section 506 is an offence that is non-cognizable, permission of the Magistrate would be required under Section 155 of the Cr.P.C., to register a crime. Section 155 of the Cr.P.C., reads as follows:

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“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.

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(2) No police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

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(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.

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(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.”

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(Emphasis supplied)

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Section 155 has four parts to it. Sub-section (1) directs that when information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he should enter the substance of the information and refer the informant to the Magistrate. Therefore, what could be gathered from the said provision is that on a noncognizable offence the informant has to be referred to the learned Magistrate. Sub-section (2) directs that no investigation on a non-cognizable offence can take place

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without the written order of the Magistrate. Sub-section (4) relates to amalgam of a cognizable and a noncognizable offence and if it is an amalgam the rigour of Section 155(1) and (2) would lose its significance. The entire issue now revolves around the aforesaid provisions of law. In the case at hand upon receipt of the afore-quoted complaint, the Station House Officer records a noncognizable report and sends a requisition to the learned Magistrate seeking to register a crime. The learned Magistrate passes the following order:

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“Perused the requisition seeking permission to register FIR in non-cognizable case. Permitted to register and investigate in accordance with law.”

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(Emphasis added)

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xxxxxxx

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In the light of the provision and its interpretation by the Apex Court, I deem it appropriate to invoke the said power to direct the learned Magistrates to pass appropriate orders which should contain the following:

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“ (i) The learned Magistrates shall record as to who has submitted the requisition whether it is the informant or the Station House Officer and make an endorsement of receipt of requisition in a separate order sheet.

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This Court holds that application of mind, prior to

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for granting permission for registration of crime is imperative.

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If the order quoted ( supra) is considered on the touchstone of what is held by this Court, it would unmistakably run foul of the same.

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In the light of the order granting permission bearing

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no application of mind, all proceedings taken in the aftermath are rendered unsustainable.

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For the aforesaid reasons, the following:

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ORDER

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i) The petition is allowed; and

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ii) The proceedings in C.C.No.30799/2023, pending on the file of the 42^nd Additional Chief Metropolitan Magistrate, Bengaluru, qua the petitioner, stand quashed.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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KG List No.: 1 Sl No.: 35

Basanagouda Patil (Yatnal) Mla v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Basanagouda Patil (Yatnal) Mla v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Parties & counsel

Coram

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