Allowed

B.M. Subramanya v. State of Karnataka by

Karnataka HC16 Apr 2024CRL.RP/1302/2015

Case brief

AI extract

What is this about?

Accused No.1, a food inspector, was convicted for abusing and threatening police while brandishing a revolver during election code of conduct. The High Court found the sanction order doubtful and cognizance under Section 188 IPC taken without the complaint mandated by Section 195 CrPC, acquitted him and set aside the convictions below.

What did the court decide?

Conviction and sentence dated 30.08.2012 in C.C.No.697/2009 and appellate judgment dated 03.11.2015 set aside; accused No.1 acquitted; bail bond cancelled.

B.M. Subramanya Vs State of Karnataka by — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL REVISION PETITION NO. 1302 OF 2015

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BETWEEN:

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B.M. SUBRAMANYA, S/O MALINGAPPA, AGED ABOUT 41 YEARS, R/AT BYADARAHALLI, KATTAYA HOBLI, HASSAN TALUK - 573 128 WORKING AS FOOD INSPECTOR CENTRAL RANGE, BANGALORE.

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RAJU @ YATHIRAJU, S/O N.M. MURTHY, AGED ABOUT 37 YEARS, R/AT BYADARAHALLI, KATTAYA HOBLI, HASSAN TALUK - 573 128.

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…PETITIONERS

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(BY SRI. VEERANNA G TIGADI, ADVOCATE FOR

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Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. VISHNUMURTHY, ADVOCATE; V/O DATED:30.10.2023, PETITION NO.2/ACCUSED NO.2 IS ABATED)

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AND:

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STATE OF KARNATAKA BY EXTENSION P.S., HASSAN, R/P BY SPP, HIGH COURT OF KARNATAKA, BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI. VINAY MAHADEVAIAH, HCGP)

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THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC, HASSAN IN C.C.NO.697/2009

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2 - NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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VIDE ITS ORDER DATED 30.08.2012 WHICH IS ALSO CONFIRMED BY V ADDL. DIST. AND S.J., HASSAN IN CRL.A.NO.127/2012 VIDE ITS ORDER DATED 03.11.2015.

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

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ORDER

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The petitioner, accused No.1, convicted for offences under Sections 353, 504, 506, 188 read with Section 34 of the Indian Penal Code (IPC) and Sections 20 and 25 of the Arms Act, 1959, is before this Court.

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2. Case of Prosecution :

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On 11.04.2009 at approximately 10:45 p.m., accused Nos.1 and 2, in an inebriated state, were near Hotel Rashmi on B.M. Road, Hassan. Constable witnesses (CW.1 and 12) requested the accused to go home. Instead, the accused used abusive and vulgar language. Subsequently, CW.1 and CW.12 informed the control room and called CW.5 and CW.6 to the scene. When the police asked the accused to come to the police station, they pushed CW.1 and CW.12 and threatened them. Accused No.1 brandished a revolver. The accused obstructed CW.1 and other police officers from performing their duties. With assistance from CW.10 to CW.12, the accused were apprehended, taken to the police station, and presented to CW.15, the Sub-Inspector. Based on statements from CW.1 and CW.15, a case was registered against the accused under Crime No.49/2008, and during the investigation, a revolver was recovered from accused No.1.

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NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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To substantiate its case, the prosecution examined witnesses PW.1 to PW.15, exhibited 17 documents (Exs.P1 to P.17(a)), and presented material objects (MO.1 to MO.3). The trial court, after reviewing the evidence, concluded that the prosecution had established the guilt of accused No.1 beyond reasonable doubt and convicted him of the aforementioned offences. The learned Sessions Judge confirmed this judgment, although accused No.2 was acquitted of charges under Section 188 read with Section 34 of IPC and Section 25 of the Arms Act, 1959. Hence, this Criminal Revision Petition was filed.

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The learned counsel for petitioner-accused No.1 argued that independent witnesses (PW.3 and 4), who allegedly observed the incident, turned hostile, and nothing was drawn out during their cross-examination to support the prosecution's case. Therefore, the testimonies of the police personnel (PW.1, 5, 6, and 12) should not be considered credible or trustworthy. The conviction based solely on statements from these interested witnesses cannot be sustained. Additionally, the counsel argued that the sanction order under Section 25 of the Arms Act was fraudulent. In the absence of a valid sanction, the conviction under Section 25 of the Arms Act is unfounded. Thus, the counsel sought the petition to be allowed.

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The learned High Court Government Pleader (HCGP) for the respondent-State contended that despite independent witnesses turning hostile, the police personnel consistently testified that they were abused and threatened by accused No.1, who

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NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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brandished a revolver. There was no evidence elicited during cross-examination to discredit these statements. Therefore, the evidence clearly established accused No.1's guilt beyond reasonable doubt. In the absence of any arbitrariness or perversity in the judgment, the conviction should not be interfered with, and the petition should be dismissed.

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The arguments of the learned counsel for the parties and the trial court records are duly considered.

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The prosecution's case alleged that accused Nos.1 and 2 abused and threatened police personnel (PW.1, 5, 6, and 12) in a public place, with PW.3 and 4 as eyewitnesses. The police personnel supported the prosecution's case, but PW.3 and 4 turned hostile, providing no supportive evidence during crossexamination.

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On the incident date, the code of conduct was in force, and those with licensed revolvers were required to surrender them to the jurisdictional police. The accused were alleged to be inebriated at the time of the incident.

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PW.7, the doctor who examined the accused, noted signs of inebriation (smell and eye color) but stated that conclusive proof required urine and blood tests. Thus, the prosecution failed to definitively establish the accused's inebriated state.

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PW.1 testified that the accused fled when asked to go to the police station, but were later apprehended after a chase, during which a revolver was seized from accused No.1. The

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NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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seizure panchanama, however, was drawn in the presence of two panchas (PW.2 and 9), who turned hostile.

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Ex.P14 was the order dated 30.06.2009 by the Additional District Magistrate, Hassan District, granting sanction under Section 39 of the Arms Act to prosecute accused No.1.

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PW.14, the Investigating Officer, was examined as PW.15. During cross-examination, it was admitted that there was no post of Additional District Magistrate, and no evidence was provided to show that the Deputy Commissioner (District Magistrate) was on leave when the sanction was granted on 30.06.2009. This raised serious doubts about the authenticity of the sanction order.

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Section 195 of the CrPC requires a written complaint by a public servant or a court for prosecution of offences under Sections 172 to 188 of the IPC. The Supreme Court in Bandekar Brothers Private Limited and Another v. Prasad Vassudev Keni and others (2020) held that if two offences arise from the same transaction and Section 195 is applicable, it must be followed.

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Accused No.1's conviction under Section 188 of the IPC for possessing a revolver during the election period required a complaint from a public servant. However, the trial court took cognizance based on the police's final report under Section 173 CrPC, invalidating the judgment of conviction due to the noncompliance with Section 195 of CrPC.

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6 - NC: 2024:KHC:15117 CRL.RP No. 1302 of 2015

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Considering the above, the prosecution failed to prove the guilt of accused No.1 beyond a reasonable doubt. Therefore, the impugned judgment of conviction is unsustainable in law and must be set aside.. Accordingly, I pass the following:

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ORDER

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i) Criminal Revision Petition is allowed.

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ii) The impugned judgment of conviction and order of sentence dated 30.08.2012 passed by the Principal Civil Judge and JMFC, Hassan in C.C.No.697/2009 and the judgment dated 03.11.2015 passed by the 5th Additional District and Sessions Judge, Hassan in Crl. Appeal No.127/2012 are hereby set aside.

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iii) Accused No.1 is acquitted of the aforesaid offences. Bail bond, if any, executed stands cancelled.

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Sd/JUDGE

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MKM

B.M. Subramanya v. State of Karnataka by

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B.M. Subramanya v. State of Karnataka by

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