Karnataka High Court
Sri Vinay Kulkarni vs The State Of Karnataka on 8 September, 2023
Bench: M.Nagaprasanna
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CRL.P No. 8201 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8201 OF 2023
BETWEEN:
1. SRI. VINAY KULKARNI,
AGE. 55 YEARS, MEMBER OF LEGISLATIVE
ASSEMBLY KARNATAKA,
R/O BHARAKOTI, SHIVAGIRI,
DHARWAD, DIST. DHARWAD-580001.
2. SRI. SHIVASHANKAR NILAKANTAPPA HAMPANNAVAR,
AGE. 60 YEARS, OCC. CONGRESS WORKER,
R/O CHARANTIMATH GARDEN, DHARWAD,
DIST. DHARWAD-580001.
3. SRI. RAVI TULAJAPPA KABADI,
AGE. 52 YEARS, CONGRESS WORKER,
R/O NEAR ICE FACTORY,
RYATANSA APARTMENT,
Digitally DHARWAD, DIST. DAHRWAD-580001.
signed by
VISHAL
VISHAL NINGAPPA4. PRABHU VEERAPAKSHAPPA DAVANSHI,
NINGAPPA PATTIHAL AGE. 50 YEARS, CONGRESS WORKER,
PATTIHAL Date: R/O SAPTAPUR MAIN ROAD,
2023.09.13
12:27:07 ISHWARYA COMPLEX,
+0530 DHARWAD, DIST. DHARWAED-580001.
5. SRI. BASAVARAJ NAGAPPA HEBBALLI,
AGE. 39 YEARS, CONGRESS WORKER,
R/O KAMALAPUR, DHARWAD,
DIST. DHARWAD-580001.
6. SRI. BASAVARAJ PEERAJI JADHAV,
AGE. 46 YEARS, CONGRESS WORKER,
R/O UDAPI ONI, HOSAYALLAPUR,
DHARWAD, DIST. DHARWAD-580001.
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7. SRI. CHANDRASHEKHARRUDRAYYA PUJAR,
AGE. 40 YEARS, CONGRESS WORKER,
R/O H.NO. 46, 2ND CROSS,
CHANNABASAVESHWAR NAGAR,
BELAGAVI, DIST. BELAGAVI-580001.
8. GANESH MAHADEVAPPA MUDHOL,
AGE. 39 YEARS, CONGRESS WORKER,
R/O BHUSAPPA CHOUK,
MEDAR ONI, DHARWAD,
DIST. DHARWAD-580001.
9. SRI. NAGARAJ MALLESHAPPA GOURI,
AGE. 42 YEARS, CONGRESS WORKER,
R/O CHANDARNATH NAGAR,
JAINAGAR, HUBBALLI,
DIST. DHARWAD-580001.
10. SRI. NAVEEN PRAKASH KADAM,
AGE. 37 YEARS, CONGRESS WORKER,
R/O UDAPI ONI, HOSAYALLAPUR,
DHARWAD, DIST. DHARWAD-580001.
11. SRI. PRADEEP MALLANGOUDA PATIL,
AGE. 55 YEARS, CONGRESS WORKER,
R/O GOUDAR ONI, SAIDAPUR, DHARWAD,
DIST. DHARWAD-580001.
12. SRI. RUDRAPPA PADMAPPA KOMPANNAVAR,
AGE. 50 YEARS, CONGRESS WORKER,
R/O MOGAD, TQ. DHARWAD,
DIST. DHARWAD-580001.
13. SRI. NOOR HAJARATALI NADAF,
AGE. 49 YEARS, CONGRESS WORKER,
R/O YETTINGUDDA, DHARWAD,
DIST. DHARWAD-580001.
14. SRI. SHAMBUGOUDA RUDDARGOUDA SALIMANI,
AGE. 50 YEARS, CONGREWSS WORKER,
R/O UDAPI ONI, HOSAYALLAPUR,
DHARWAD, DIST. DHARWAD-580001.
15. SRI. PARAMAESHWAR SHANKAR KALE,
AGE. 44 YEARS, CONGRESS WORKER,
R/O SHIVALLI, DHARWAD,
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DIST. DHARWAD-580001.
16. SRI. ANILKUMAR VEERAPPA PATIL,
AGE. 56 YEARS, FORMER CONGRESS PRESIDENT,
R/O KARWAR ROAD, NEAR ASI HOSPITAL,
DHARWAD, DIST. DHARWAD-580001.
17. SRI. ALTAFHUSEN ALLABAKSHA HALLUR,
AGE. 36 YEARS, CONGRESS WORKER,
R/O. KHASABAPETH MAIN ROAD,
KHASABAPETH NEAR POLICE STATION,
DHARWAD, DIST. DHARWAD-580001.
18. SRI. ATMANAND BASAPPA ANGADI,
AGE. 36 YEARS, CONGRESS WORKER,
R/O DASANKOPPA POST. NARENDRA,
TQ. DHARWAD, DIST DHARWAD-580001.
... PETITIONERS
(BY SRI. K.S. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY POLICE INSPECTOR,
BELAGAVI RURAL POLICE STATION,
DIST. BELAGAVI-590001.
2. THE POLICE INSPECTOR,
HIREBAGEWADI POLICE STATION,
TQ & DIST. BELAGAVI -591109,
BOTH R/BY THE STATE PUBLIC PROSECUTOR,
AG OFFICE, HIGH COURT OF KARANATAKA,
BENCH AT DHARWAD-580011.
... RESPONDENTS
(BY SMT. YASHODA, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN CC NO. 515/2021 ON THE
FILE OF JMFC II COURT BELAGAVI AND QUASH THE FIR, IN
BELAGAVI RURAL PS CRIME NO. 112/2021, DATED 21.08.2021
REGISTERED BY THE RESPONDENT/BELAGVI RURAL PS, COMPLAINT
DATED 21.08.2021 AND ALL FURTHER PROCEEDINGS IN C.C.NO.
515/2021 PENDING ON THE FILE OF JMFC II COURT, BELAGAVI FOR
THE OFFENCES P/U/SEC. 4, 5(1) (4) OF KARNATAKA EPIDEMIC
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DISEASES (ORDINANCE) ACT, 2020 (VIDE ANNEXURE-A, B AND C
RESPECTIVELY).
THIS PETITION, COMING ON FOR ADMISION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question
the proceedings in C.C. No.515/2021 for the offences
punishable under Sections 4, 5(1)(4) of the Karnataka
Epidemic Diseases (Ordinance) Act, 2020.
Heard the learned counsel Sri.K.S.Patil appearing for
the petitioners and the learned HCGP.
Learned counsel for the petitioners submits that the
issue in the lis stands answered by several judgments
rendered by this Court. This Court in the case of
D.K.Shivakumar vs. State of Karnataka and another in
Criminal Petition No.3328/2023 has held as follows:
7. The issue lies in a narrow compass. What
triggers registration of the crime is a rally that
was held by the Congress party, the President of
which is the petitioner. On 10-01-2022, when the
rally was in its motion, the President i.e., the
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petitioner between 11.30 a.m. and 12.30 p.m.
visits Vishwodaya High School. The children of
the school came out of their classes and posed
for a picture with the President. This incident
becomes a crime in Crime No.3 of 2022 for the
afore- quoted offences. What is alleged against
the petitioner is, violation of the provisions of the
Karnataka Epidemic Diseases Act and Section 75
of the Act. The violation is in particular to Section
5(3A) of the Karnataka Epidemic Diseases Act
and Section 75 of the Act. Therefore, it becomes
germane to notice those provisions of law.
Section 5 of the Karnataka Epidemic Diseases Act
reads as follows:
"5. Prohibition of Contravention or
obstruction of Public Servant.-(1) No person,
institution or company shall contravene or
disobey any of the provisions of Section 4, rules,
regulation or order made under this Act.
(2) No person shall obstruct any officer or
any public servant while acting or purporting to
act or discharging any duty in pursuance to any
provisions of this Act, rules, regulations or orders
made there under.
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(3) No person shall indulge in any act of
violence against a public servant or cause any
damage or loss to any public or private property
during an epidemic.
(3-A) whoever contravenes the
provisions of sub-section (1) shall be
punished with such fine as may be
prescribed in rules or in regulations, which
may extend to fifty thousand rupees or with
imprisonment for a term which may extend
up to three months or with both.
(4) Whoever contravenes any of the
provisions of sub-section (2) or (3) shall on
conviction be punished with imprisonment for a
term which shall not be less than three months,
but which may extend to five years and with fine,
which shall not be less than fifty thousand
rupees, but which may extend to two lakh
rupees.
(5) Whoever, while committing an act of
violence against a public servant, causes
grievous hurt as defined in Section 320 of Indian
Penal Code, 1860 (Act 45 of 1860) to such
person, shall be punished with imprisonment for
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a term which shall not be less than six months,
but which may extend to seven years and with
fine, which shall not be less than one lakh
rupees, but which may extend to five lakh
rupees."
(Emphasis supplied)
Section 5(3A) mandates that whoever
contravenes sub-section (1) shall be punished in
terms of sub-section (3A). Sub-section (1)
concerns that any person, institution or company
contravening or disobeying any provisions of
Section 4, Rules or Regulations made under the
Act would become an offence and the offence
would become punishable under sub-section
(3A).
8. Therefore, it becomes germane to notice
Section 4 of the Karnataka Epidemic Diseases Act
as the contravention of Section 4 would result in
an offence under Section 5. Section 4 of the
Karnataka Epidemic Diseases Act reads as
follows:
"4. Power to take special measures and
specify regulations as to epidemic disease.-
(1) When at any time the Government is satisfied
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that the State or any part thereof is visited by or
threatened with an outbreak of any epidemic
disease, the Government may take such
measures, as it deems necessary for the
purpose, by notification in the Official Gazette
specify such temporary regulations or orders to
be observed by the public or by any person or
class of persons so as to prevent the outbreak of
such disease or the spread thereof and require or
empower Deputy Commissioner and/or Municipal
Commissioners to exercise such powers and
duties as may be specified in the said regulations
or orders.
(2) In particular and without prejudice to
the generality of the foregoing provisions, the
Government may take measures and specify
regulations,-
(a) to prohibit any usage or act which the
Government considers sufficient to spread or
transmit epidemic diseases from person to
person in any gathering, celebration, worship or
other such activities within the State;
(b) to inspect the persons entering the
State by air, rail, road, sea or any other means
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or in quarantine or in isolation, in hospital,
temporary accommodation, home or otherwise of
persons suspected of being infected with any
such disease by the officers authorized in the
regulation or orders;
(c) to seal State or district borders for such
period as may be deemed necessary;
(d) to impose restrictions on the operation
of public and private transport;
(e) to prescribe social distancing norms;
(f) to restrict or prohibit congregation of
persons in public places and religious
institutions;
(g) to regulate or restrict the functioning of
offices, Government and Private institutions in
the State; and educational
(h) to impose prohibition or restrictions on
the functioning of shops and commercial
establishments, factories, workshops and
godowns;
to restrict duration of services in essential
or emergency services such as banks, media,
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health care, food supply, electricity, water, fuel,
etc.,;
(1) to restrict social, political, sports,
entertainment, academic, cultural or religious
functions or gatherings; and
(k) such other measures as may be
necessary for the regulation and prevention of
epidemic diseases as decided by the
Government."
Section 4 mandates that in order to take
special measures and specify regulations as to
epidemic disease, the Government by a
notification in the Official Gazette specify such
temporary regulations or orders to be observed
by the public or by any person or class of
persons so as to prevent the outbreak of such
disease. Therefore, the fulcrum of Section 4 is
issuance of a notification in the Official Gazette
notifying temporary regulations or orders. It is
after such notification under Section 4, if a
person contravenes or disobeys
those Regulations so notified, it would become an
offence under Section 5 for contravention of
Regulations notified under Section 4.
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9. It is admitted fact that no notification is
issued by the State Government under Section 4
of the Karnataka Epidemic Diseases Act. If there
is no notification issued under Section 4, an
offence under Section 5 cannot be laid against
any person as there is no regulation that a
person would contravene as contravention of the
Regulations cannot be imaginary. Therefore, the
very offence alleged against the petitioner was
fundamentally flawed.
10. The other offence alleged is under
Section 75 of the Act. Section 75 of the Act reads
as follows:
"75. Punishment for cruelty to child.-
Whoever, having the actual charge of, or control
over, a child, assaults, abandons, abuses,
exposes or wilfully neglects the child or causes or
procures the child to be assaulted, abandoned,
abused, exposed or neglected in a manner likely
to cause such child unnecessary mental or
physical suffering, shall be punishable with
imprisonment for a term which may extend to
three years or with fine of one lakh rupees or
with both:
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Provided that in case it is found that such
abandonment of the child by the biological
parents is due to circumstances beyond their
control, it shall be presumed that such
abandonment is not wilful and the penal
provisions of this section shall not
apply in such cases:
Provided further that if such offence is
committed by any person employed by or
managing an organisation, which is entrusted
with the care and protection of the child, he shall
be punished with rigorous imprisonment which
may extend up to five years, and fine which may
extend up to five lakhs rupees:
Provided also that on account of the
aforesaid cruelty, if the child is physically
incapacitated or develops a mental illness or is
rendered mentally unfit to perform regular tasks
or has risk to life or limb, such person shall be
punishable with rigorous imprisonment, not less
than three years but which may be extended up
to ten years and shall also be liable to fine of five
lakhs rupees."
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Section 75 makes it an offence if the person
who is in- charge of the child or has control over
the child assaults, abandons, abuses, exposes or
willfully neglects the child or causes or procures
the child to be assaulted, abandoned, abused,
exposed or neglected in a manner likely to cause
the child unnecessary mental or physical
suffering shall become punishable for a term
which may extend upto 3 years.
11. The fact that leads to the said
allegation is that, the petitioner posed for a
picture with the children at Vishwodaya High
School, Kanakapura Taluk. The children were
neither under the care or protection of the
petitioner nor was he in- charge of the children.
The children come out of the classes for the
picture and the matter ends there. The
petitioner did not have any control or in-charge
over the children. The very offence is loosely laid
against the petitioner, much less to say he is
alleged of assault, abandoning, abusing or
exposing or neglecting the children. The
aforesaid facts cannot even lead to the alleged
offences against the petitioner."
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The learned HCGP would not dispute the position of
law as is deemed (supra).
For the aforesaid reasons, the following:
ORDER
(i) Criminal petition is allowed.
(ii) FIR in Crime No.112/2021 dated 21.08.2021
registered by the Belagavi Rural Police Station and Charge
Sheet filed in C.C. No.515/2021 pending before the JMFC
II Court, Belagavi stand quashed.
(iii) It is made clear that the observations made in
the course of the order are only for the purpose of
consideration of the case of the petitioner under Section
482 of Cr.P.C. and the same shall not bind or influence the
proceedings against the other accused pending before the
concerned Court.
Sd/-
JUDGE
rsh/ct:bck
