Karnataka High Court

Priyank Kharge vs State Of Karnataka on 3 October, 2023

Bench: M.Nagaprasanna

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                                                                 NC: 2023:KHC:35628
                                                             CRL.P No. 7603 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 3RD DAY OF OCTOBER, 2023

                                                BEFORE

                              THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                                 CRIMINAL PETITION NO. 7603 OF 2023

                      BETWEEN:

                      1.   PRIYANK KHARGE
                           S/O MALLIKARJUN KHARGE,
                           AGED ABOUT 44 YEARS,
                           MEMBER OF LEGISLATIVE ASSEMBLY (MLA),
                           289, 17TH CROSS, SADASHIVANAGARA,
                           BANGALORE-560001.

                      2.   ESHWAR KHANDRE
                           S/O BHEEMANNA KHANDRE,
                           AGED ABOUT 61 YEARS,
                           MEMBER OF LEGISLATIVE ASSEMBLY (MLA),
                           KANDREGALLI, GUNJ AREA, BHALKI TALUK,
                           BIDAR-585328.

                      3.   SALEEM AHMED S/O AZEEZ AHMED,
                           AGED ABOUT 56 YEARS,
                           MEMBER OF LEGISLATIVE ASSEMBLY (MLA),
                           PRESENTLY AT ASHIANA NO 1375,
         Digitally
         signed by
         VISHAL            12TH CROSS, 2ND, BANGALORE-560001.
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
         2023.10.10
         13:40:04
         +0530
                      4.   SRI. B.K. HARIPRASAD
                           S/O LATE A. KEMPAIAH,
                           AGED ABOUT 69 YEARS,
                           MEMBER OF LEGISLATIVE ASSEMBLY (MLA),
                           PRESENTLY AT 84, 6TH MAIN ROAD,
                           MALLSHWARAM, BANGALORE-560055.

                      5.   SMT. PUSHPA AMARNATH W/O AMARNATH,
                           AGED ABOUT 45 YEARS,
                           PRESENTLY AT KPCC OFFICE,
                           BANGALORE-560001.
                                                                      ... PETITIONERS
                      (BY SRI. SANJAY YADAV B. REP.
                       SRI. SURYA MUKUNDARAJ L., ADVOCATE)
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                                         NC: 2023:KHC:35628
                                     CRL.P No. 7603 of 2023




AND:

1.   STATE OF KARNATAKA,
     THROUGH IJOOR POLICE STATION,
     RAMANAGARA DISTRICT,
     R/BY STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA,
     BANGALORE-560001.

2.   MR. M. VIJAYAKUMAR
     S/O LATE M. MADAPPA,
     AGED 57 YEARS,
     GOVERNMENT OFFICIAL GAZETTED,
     TAHASILDAR, TALUK EXECUTIVE MAGISTRATE,
     RAMANAGARA-562120.
                                               ... RESPONDENTS
(BY SMT. YASHODHA, HCGP)

      THIS CRL.P FILED U/S 482 CR.PC BY THE ADVOCATE FOR THE
PETITIONER TO QUASH ENTIRE PROCEEDINGS AS AGAINST
PETITIONERS IN C.C.NO.6231/2023 INITIATED BY THE 1ST
RESPONDENT IJOOR POLICE PENDING BEFORE THE HONBLE 42ND
ADDL. C.M.M. COURT, (SPECIAL COURT FOR TRIAL OF CASES
AGAINST SITTING AS WELL AS FORMER MPS/MLAS TRIABLE BY
MAGISTRATE IN THE STATE OF KARNATAKA), BANGALORE FOR
OFFENCE P/U/S 5(3A) OF KARNATAKA EPIDEMIC DISEASES ACT,
SEC. 141, 143, 290, 336 R/W 149 OF IPC AND GRANT RELIEFS TO
THE PETITIONER HEREIN.

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


                           ORDER

1. The petitioners are before this Court calling in

question the proceedings in CC.No.6231/2023, registered

for the offences punishable under Section 5(3A) of

NC: 2023:KHC:35628 CRL.P No. 7603 of 2023

Karnataka Epidemic Diseases Act and sections 141, 143,

290, 336 R/W 149 of IPC.

2. Qua accused No.1, this court has quashed the

proceedings in Crl.P.No.3432/2023 in terms of its order

dated 7.7.2023.

3. Learned counsel appearing for the petitioners

would submit that issue in the lis stands covered by

judgment so rendered supra.

4. This Court in Crl.P.No.3432/2023 has held as

follows:

7. The afore-narrated facts are not

in dispute. The issue lies in a narrow

compass, as to whether the learned

Magistrate could have taken cognizance of

the offence under Section 51(b) of the Act.

To consider the said issue, it is germane to

notice certain provisions of the Act. Section

51 of the Act deals with punishment for

obstruction and reads as follows:

"51. Punishment for obstruction, etc.-- (1) Whoever, without reasonable cause--

NC: 2023:KHC:35628 CRL.P No. 7603 of 2023

--(1) Whoever, without reasonable cause--"

(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or

(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to

58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act.

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The clauses also provide for penalties for these offences.

(Emphasis supplied)

Section 51(b) of the Act directs that

whoever would refuse to comply with any

direction given by or on behalf of the

Government, as the case would be, become

an offence under the Act.

8. Section 60 of the Act deals with

cognizance for the offences and reads as

follows:

"60. Cognizance of offences.--No court shall take cognizance of an offence under this Act except on a complaint made by--

(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or

(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to

NC: 2023:KHC:35628 CRL.P No. 7603 of 2023

the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid."

(Emphasis supplied)

Section 60(b) mandates that, if cognizance

is to be taken for an offence punishable

under Section 51 of the Act, a person who is

arrayed as accused should have been given

a notice not less than 30 days in the manner

prescribed.

9. The prescription is in terms of

the Rules. Rules, i.e. the Disaster

Management (notice of alleged offence)

Rules, 2007. Rule 3 of the said Rules, reads

as follows:

"3. Notice of alleged offence and intention to make a complaint .--A notice under clause (b) of section 60 of the Act by a person, of the alleged offence and his intention to make a complaint shall be delivered to, or left at, the office of one of the following--

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(a) in the case of the Central Government, except where the complaint relates to a railway, the Secretary incharge of the concerned Ministry or the Department in that Government;

(b) in the case of the Central Government where the complaint relates to a railway, the General Manager of that railway;

(c) in the case of State Government, the Secretary incharge of the concerned Department in that Government;

(d) in the case of the National Authority, the Secretary or, if there is no Secretary, the Additional Secretary, of the National Authority;

(e) in the case of a State Authority, the Chief Executive Officer of the State Authority;

(f) in the case of a District Authority, the Chief Executive Officer of the State Authority."

(Emphasis supplied)

The Rule mandates that a notice under

Section 60(b) of the Act by any person

should be issued on/of his intention to make

a complaint, and that shall be delivered to

the person against whom complaint is said

to be made. The manner of issuance and

delivery are narrated from (a) to (f).

Therefore, there is prescription under the

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Rules as to the action to be taken under

Section 60(b) of the Act.

10. On the bedrock of the aforesaid

mandate under the Act and the Rules, the

case at hand requires to be noticed. The

incident takes place on 04.01.2021, around

10.30 a.m. and the crime is registered on

04.01.2021 for the offence punishable under

Section 51(b) of the Act and Section 188 of

the IPC. The learned Magistrate takes

cognizance of the offence on 25.01.2022.

The order of the learned Magistrate taking

cognizance reads as follows:

"Perused the compliant.

Complainant is a Public Servant. Hence, recording of Sworn Statement is dispensed with as contemplated u/s.200 of Cr.P.C. cognizance is taken for the offence punishable u/s.51(b) of NDA Act.

I have perused the documents produced by the complainant and considered the allegation made in the complaint. The allegation are supported by documents and if allegations are not denied the same will lead to the conviction of the accused.

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There are sufficient materials to issue process against the accused. Accordingly, I proceed to pass the following order:

ORDER

1. Register the case as CC

2. Issue summons against accused no.1 to 9 for the offence punishable u/s.

51(b) of NDA Act.

3. Call on: 26.02.2021."

(Emphasis

added)

The learned Magistrate prior to taking

cognizance ought to have noticed the rigor

of Section 60(b) as to whether a notice has

been issued to the accused in terms of Rule

3 of the said Rules (supra). Ostensibly, the

mandate under the Act or the Rules is not

followed by the complainant and it is not

even noticed by the learned Magistrate prior

to the taking of cognizance. It is therefore,

contrary to law.

11. In the light of it being contrary to law,

is resultantly rendered unsustainable. The

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NC: 2023:KHC:35628 CRL.P No. 7603 of 2023

unsustainability of it, would lead to its

obliteration.

12. For the aforesaid reasons, following

ORDER

I. Criminal petition is allowed.

II. The order dated 25.01.2021 passed in C.C.No.6231/2023 on the file of the 42nd Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioner.

5. Learned HCGP would also submit that qua

accused No.1 the proceedings are quashed and this would

enure to the benefit of the other accused as well.

Therefore and for the aforesaid reasons, the following: