Sri Mohammed Rafiq vs State Of Karnataka
2023 Latest Caselaw 2641 Kant

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                                                     CRL.P No. 6309 of 2022




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 26TH DAY OF MAY, 2023

                                         BEFORE

                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                         CRIMINAL PETITION NO. 6309 OF 2022

               BETWEEN:

               SRI. MOHAMMED RAFIQ,
               S/O G ABDUL WAHEED,
               AGED ABOUT 51 YEARS,
               OCC: DISTRICT PRESIDENT,
               BALLARI, DCC,
               R/AT: NO.17, BANDIHATTI ROAD,
               CMC COLONY, BELLARY - 583 102.
                                                              ...PETITIONER

               (BY SMT. KEERTHANA NAGARAJ, ADVOCATE)

               AND:

               1.    STATE OF KARNATAKA,
                     BY THE POLICE OF
                     COWLBAR POLICE STATION,
Digitally signed
by PADMAVATHI        BALLARI - 583 102.
BK                   REP. BY THE STATE PUBLIC PROSECUTOR,
Location: HIGH       HIGH COURT OF KARNATAKA,
COURT OF             BENGALURU BENCH,
KARNATAKA            BENGALURU - 560 001.

               2.    DR. HANUMANTHAPPA,
                     S/O HANUMAPPA,
                     MAJOR IN AGE,
                     OCC: STATE GOVT. EMPLOYEE,
                     HEALTH OFFICER, BALLARI CITY,
                     BALLARI - 583 102.
                                                            ...RESPONDENTS

               (BY SRI. MAHESH SHETTY, HCGP)
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                                            CRL.P No. 6309 of 2022




      THIS CRL.P IS FILED U/S.482 OF CR.P. PRAYING TO
QUASHING THE ENTIRE PROCEEDINGS IN C.C.NO.14681/2022
(OLD C.C.NO.865/2020 IN CR.NO.32/2018 OF COWLBAZAR
P.S., BALLARI) REGISTERED FOR THE OFFENCE P/U/S 3 OF
THE KARNATAKA OPEN PLACE DISFIGUREMENT ACT,1951 AND
1981, PENDING ON THE FILE OF THE LEARNED XLII A.C.M.M.
COURT BENGALURU.

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

                               ORDER

Learned HCGP is directed to accept notice for respondent

No.2.

2. Heard the learned counsel Smt.Keerthana Nagaraj

appearing for the petitioner and learned HCGP for the

respondents.

3. Facts in brief, germane, are as follows:

On 22.01.2018, respondent No.2 registers a crime in

Cr.No.32/2018 for the offence punishable under Section 3 of

the Karnataka Open Place Disfigurement Act, 1951 as amended

in the year 1981 (hereinafter referred to as 'Act' for short).

4. It is the case of the prosecution that on 04.01.2018

at 8.00 p.m., the petitioner who was the then DCU president,

Ballari along with others is alleged to have put up hoardings

and advertisements welcoming the leaders of the party without

CRL.P No. 6309 of 2022

obtaining prior permission of the Ballari Municipal Corporation.

It is alleged that the hoardings and advertisements were put up

in the areas of public place next to Bantara Bhavana.

Therefore, a complaint is registered against the petitioner as he

was the then President of DCU, Ballari.

5. On 05.01.2018, it transpires that, a notice was

issued upon the petitioner seeking a reply as to why the action

should not be taken in terms of the Act. The petitioner appears

to have ignored the notice and not submitted his reply, as

always. It is therefore a crime comes to be registered against

the petitioner in Cr.No.32/2018 alleging offence punishable

under Section 3 of the Act. The police, after investigation, have

filed a charge sheet in C.C.No.14681/2022 and the same is

pending before the concerned Court. It is after filing of the

charge sheet, the petitioner has knocked at the doors of this

Court in the subject petition.

6. Learned counsel for the petitioner would contend

with vehemence that the proceedings under the Act can be

initiated only if it is notified to be coming under the provisions

of the Act. Unless such a notification is issued, the provisions of

CRL.P No. 6309 of 2022

the Act would not get attracted to each and very place of the

State.

7. Learned HCGP would seek to refute the submissions

to contend that it does amount to an offence under the Act and

the charge sheet is already laid. He would submit that the

petition be dismissed and it is for the petitioner to come out

clean in the proceedings.

8. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

9. The afore-narrated facts are not in dispute. The

issue in lis need not detain this Court for long or delve deep

into the matter as its stands covered by the judgments

rendered by the co-ordinate Bench of this Court as well as this

Court.

10. This Court following the earlier judgments rendered

on the issue as to whether offence under the Act can be laid

without there being a notification of bringing the said area

under the Act is considered in Crl.P.No.9264/2022 wherein, this

Court has held as follows:

CRL.P No. 6309 of 2022

"2. The learned counsel appearing for the petitioners, would submit that the issue stands covered by the judgment rendered by the Co-

ordinate Bench of this Court in Crl.P.No.200377/2019, disposed on 26.11.2021, wherein this Court has held as follows:

"Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.

2. This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners for the offences punishable under Section 171H of IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 (for short 'the Act').

3. Factual matrix of the case is that the complaint is lodged by one Basavaraj stating that he was deputed for election duty on the eve of assembly elections during the year 2018. He was performing flying squad duty in Muddebihal Assembly constituency along with other officials by forming six teams on 20.04.2018. It is also alleged that a candidate belonging to Indian National Congress had come to Tahsildar office, Muddebihal, for filing nomination papers and some vehicles had accompanied him to Tahsildar's office displaying stickers containing symbol and flag of Indian National Congress. It is further alleged that he along with his team members inspected the said vehicles and noticed that stickers displaying palm symbol of Indian National Congress was displayed on the motorcycle and flags of

CRL.P No. 6309 of 2022

Indian National Congress were tied to Bolero vehicle and Tata Ace vehicle. It is also alleged that the same was done without any permission and they have violated the Election Code of Conduct. Hence, the case has been registered, the police have investigated the matter and filed charge sheet.

4. The learned counsel appearing for the petitioners would vehemently contend that first of all, Act invoked i.e., the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 is not applicable to Muddebihal and the said Act is applicable only in respect of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. The learned counsel also submits that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was also taken. The learned counsel also would submit that when non-cognizable offence is invoked, it requires permission from the learned Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.

5. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal Constituency. The

CRL.P No. 6309 of 2022

learned counsel also relied upon the order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in violation of the same and there is no specific notification for applying the above Act but election notification is issued. It is not in dispute that the petitioners herein came to the Tahsildar's office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.

6. Having heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State and on perusal of the records, it is evident that a case was registered against the petitioners under Section 171H of IPC and Section 3 of the Act. The learned counsel also relied upon several judgments and those judgments are in respect of Section 171H of IPC and no doubt for the said offence a private complaint has to be filed under Section 195 of Cr.P.C. But, in the case on hand, Section 3 of the Act is also invoked. Having considered the said Act particularly, according to Section 8 of the Act, any offence punishable under the Act shall be deemed to be a cognizable offence within the meaning of the code. Having considered the same, no doubt offence invoked against the petitioners is cognizable offence. But the question is whether the above Act is applicable to Muddebihal or not. Section 1 of the Act reads as under:

CRL.P No. 6309 of 2022

"1. Short title and commencement.- (1) This Act may be called the Karnataka Open Places (Prevention of Disfigurement) Act, 1991.

(2) It shall.-

(i) be deemed to have come into force in the cities of Bangalore, Mysore, Hubli- Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976 or under any other law, on the fifth day of May, 1981; and

(ii) come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas."

Reading of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore, Mysore, Hubli- Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.

7. But, no such Notification was issued in respect of Muddebihal. The Notification was

CRL.P No. 6309 of 2022

issued on 09.07.1991 vide Karnataka Gazette dated 08.08.1991 including Gulbarga, apart from the above cities. But, no other notifications are issued. When such being the facts and circumstances of the case, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law. This Court in an unreported order passed in Criminal Petition No.505/2017 along with connected matters dated 20.06.2018 also considered similar issue and observed that no notification was issued particularly in respect of respective municipal area and quashed the initiation of proceedings invoking the provisions of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.

8. With regard to the other offence under Section 171H of IPC is concerned, this Court would like to extract very provision of Section 171H of IPC, which reads as under:

"171H. Illegal payments in connection with an election.-- Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publi- cation, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:

Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."

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CRL.P No. 6309 of 2022

9. Section 171H of IPC deals with illegal payments in connection with an election. But, in the case on hand, the allegation against the petitioners is that they came in vehicles with flag of political party and no allegations with regard to illegal payments in connection with election are found in the complaint.

Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.

10. On perusal of the contents of the column No.17 of the charge sheet, it is clear that allegation made against the petitioners is that without permission while filing the nomination, they came with flag, stickers and photos displaying symbol of particular political party. No allegation of illegal payments in connection with election is made. Having considered the allegation made in the complaint as well as in the charge sheet, it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. First of all, complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings has been initiated. The contention of the State that the election was declared in terms of the notification of Election Commission of India is not in dispute and election squad appointed is also not in dispute. The documents placed by the State substantiate the same. But the fact is that very initiation of proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal

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CRL.P No. 6309 of 2022

and also no ingredients of offence under Section 171H of IPC.

11. In view of the observations made above, I pass the following:

ORDER

The petition is allowed.

The proceedings initiated against the petitioners herein for the offences punishable under Sections 171H of IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act 1981 and taking of cognizance by the learned Magistrate vide order dated 13.07.2018 in C.C.No.167/2018 is hereby quashed."

3. Learned HCGP, though would refute the submission of the learned counsel for the petitioners, is not in a position to dispute the position of law as is laid down by this Court (supra)."

11. It is not in dispute that there is no notification

issued by the State Government bringing in Ballari City under

the provisions of the Act and unless that comes about, the

offence under the Act cannot be laid.

12. In the light of the issue standing covered by the

judgment rendered by this Court by following earlier judgment

rendered by the co-ordinate Bench of this Court, the petition

deserves to succeed and the impugned proceedings to be

obliterated.

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CRL.P No. 6309 of 2022

13. For the aforesaid reasons, the following:

                i.      Criminal Petition is allowed.


                ii.     Proceedings in C.C.No.14681/2022 (old

C.C.No.865/2020 in Crime No.32/2018 of Cowlbazar PS, Ballari) pending on the file of pending the Ld. XLII Additional CHief Metropolitan Magistrate (42nd ACMM) Court, Bengaluru, stand quashed qua the petitioner.

Sd/-

JUDGE

VM

CT: BHK