Tavanappa S/O. Payappa Astagi vs The State Of Karnataka
2021 Latest Caselaw 3279 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 01ST DAY OF SEPTEMBER, 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

      CRIMINAL REVISION PETITION NO.2058 OF 2012

BETWEEN
TAVANAPPA S/O. PAYAPPA ASTAGI
AGE 50 YEARS, OCC AGRICULTURE,
R/O UPPINBETAGERI, TQ DHARWAD.
                                           ...PETITIONER
(BY SRI. PRAKASH S UDIKERI, ADVOCATE)

AND
THE STATE OF KARNATAKA
R/BY SPP, CIRCUIT BENCH,
HIGH COURT, DHARWAD,
DHARWAD SUB URBAN POLICE STATION,
DHARWAD.
                                          ...RESPONDENT
(BY SRI. RAMESH B CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT
AND THE SENTENCE ORDER DATED 12.01.2012 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHAWAD, IN
CRL.A.NO.84/2009 CONFIRMING THE JUDGEMENT AND ORDER
DATED 14.09.2009 PASSED BY THE PRINCIPAL CIVIL JUDGE
(JR.DN.) & PRINCIPAL JMFC, DHARWAD, IN C.C.NO.383/2008
AND ACQUIT THE PETITIONER FOR THE CHARGES LEVELED
AGAINST HIM.

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

This revision petition is filed by the revision

petitioner/accused seeking to set aside the judgment and

order of sentence dated 12.01.2012 passed by the

Principal District and Sessions Judge, Dhawad, in

Crl.A.No.84/2009 confirming the judgment of conviction

and sentence order dated 14.09.2009 passed by the

Principal Civil Judge (Jr.Dn.) & Principal JMFC, Dharwad in

C.C.No.383/2008.

2. For the sake of convenience, parties herein are

referred with original ranks occupied by them before the

Trial Court.

3. The brief factual matrix leading to the case is

that the revision petitioner-accused was prosecuted for the

offence punishable under Section 171(e) of IPC on the

basis of the complaint filed by the PSI, Sub-Urban Police

Station, Dharwad. It is alleged that on 20.05.2008 at

about 5.15 p.m., the accused found distributing meals to

the voters by enticing them to vote in the election in his

favour as he was contesting for Assembly Election of the

year 2008 from Dhrawad Rural Constituency-71 as an

independent candidate. After submission of the charge

sheet, cognizance was taken and the accused appeared

before the learned Magistrate and was enlarged on bail.

The accusation was read over and explained to the

accused. He pleaded not guilty and claimed to be tried.

The prosecution examined in all nine witnesses as PW1 to

PW9 and relied on eight documents, marked at Ex.P1 to

Ex.P8. Thereafter, the statement of the accused under

Section 313 of Cr.P.C., was also recorded. The case of the

accused is of total denial. After hearing the arguments, the

learned Magistrate convicted the accused for the offence

punishable under Section 171(e) of IPC and sentenced him

to pay a fine of Rs.1,000/- vide judgment dated

14.09.2009. Being aggrieved by the said judgment, the

accused preferred an appeal before the learned Principal

District and Sessions Judge in Criminal Appeal No.84/2009

and the learned Sessions Judge by his judgment dated

12.01.2012 dismissed the appeal by confirming the

judgment of conviction passed by the Trial Court.

4. Being aggrieved by the concurrent findings of

both the courts below, this revision petition is filed by the

accused/revision petitioner.

5. Heard the arguments advanced by the learned

counsel for the revision petitioner and the learned HCGP.

Perused the trial court records.

6. Learned counsel for the revision

petitioner/accused would contend that the offence under

Section 171(e) of the IPC is non-cognizable and without

taking prior approval, the prosecution has been made,

which vitiates the proceedings. He would further contend

that except interested testimonies, all other witnesses

have turned hostile and both the courts below have failed

to appreciate the oral as well documentary evidence in

proper perspective. Hence, he claimed that both the courts

below have committed an error in convicting the revision

petitioner and hence, sought for setting aside the

impugned judgments.

7. Per contra, learned HCGP would contend that

the revision petitioner has participated in the proceedings

and under Section 464 of Cr.P.C., he cannot urge these

grounds. Hence, he would seek for rejection of the revision

petition.

8. Having heard the arguments and perusing the

records, it is an undisputed fact that the present revision

petitioner has contested the Assembly Election of 2008 as

an independent candidate and his symbol was television.

The evidence of P.Ws.2 and 5 who are police officers

disclose that raid was conducted and it is found that the

present petitioner was distributing food packets, which is

against the code of conduct and it amounts to enticing the

voters. Except the official witnesses all other witnesses

have turned hostile, but however, there is no reason to

discard the evidence of official witnesses P.Ws.2, 5, 6, 8

and 9 who have clearly deposed regarding the accused

distributing the meals to the large number of people by

enticing to vote in his favour. Further, he was found to be

distributing meals in the house which is owned by him.

Admittedly, he was previously elected member of Zilla

Panchayat of Uppinna Betageri constituency area. P.W.2

was cross-examined elaborately and nothing was elicited

so as to impeach his evidence.

9. Learned counsel for the revision petitioner

would contend that the offence under Section 171(e) of

IPC is non-cognizable and prior permission was not

obtained. However, it is to be noted here that this defence

was not raised at the initial stage when the accused was

prosecuted. He has appeared and enlarged on bail. He

participated in the proceedings and after conviction he has

preferred an appeal. Even in the appeal, he did not raise

this issue. This is a technical error committed by the

investigating officer, but under Section 464(2) of Cr.P.C., if

the court of appeal, confirmation or revision is of opinion

that a failure of justice has in fact been occasioned then

only it becomes relevant. But in the instant case, there is

no evidence placed on record to show that any failure of

justice has in fact been occasioned. However, it is an

omission and an error on the part of the investigating

agency. No evidence is placed on record to show that

accused is prejudiced by this act of investigating officer.

He has contested the matter and elaborately cross-

examined the witnesses by actively participating in the

proceedings. Under these circumstances, in view of Section

464 of Cr.P.C., the said defence is not available at this

juncture as there is no failure of justice occasioned. Hence,

both the courts below have appreciated the oral and

documentary evidence in proper perspective and arrived at

a just decision of convicting the accused. Further, the trial

court has imposed only sentence of fine, which also

disclose that the trial court has taken a very lenient view.

The said part of the sentence is not challenged by the

State. Under these circumstances, there is no reason to

interfere with the impugned judgments of conviction of

both the courts below. Hence, the revision petition is

devoid of any merits, needs to be rejected. Accordingly, I

proceed to pass the following:

ORDER

The criminal revision petition is rejected.

SD/-

JUDGE

yan/MBS