Karnataka High Court
Dr. Siddalinga Swamigalu vs The State Of Karnataka And Anr on 10 April, 2024
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CRL.P No. 200879 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL PETITION NO.200879 OF 2023 (482)
BETWEEN:
DR. SIDDALINGA SWAMIGALU
ENGLESHWAR TQ. BASAVANA BHAGEVADI,
VIJAYAPUR, KARNATAKA MATADHIPATH OF
BASAVATHEERTHA MUTT, HUMNABAD, BIDAR,
KARNATAKA-585330.
...PETITIONER
(BY SRI RAVI B. PATIL, SENIOR COUNSEL APPEARED FOR
SRI SANJAY KULKARNI, ADVOCATE)
AND:
Digitally signed by
KHAJAAMEEN L
MALAGHAN 1. THE STATE OF KARNATAKA THROUGH
Location: HIGH
COURT OF HUMNABAD POLICE STATION,
KARNATAKA REP. BY ITS ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH, KALABURAGI-585103.
2. NAGESH S/O SUBHASH KALLUR
AGE: 40 YEARS, OCC: BUSINESS,
R/O KALLUR NOW AT AGADI LAYOUT,
HUMANABAD, BIDAR DISTRICT KARNATAKA-585401.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI B.V. JALDE, ADVOCATE FOR R2)
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CRL.P No. 200879 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE COMPLAINT DATED
18.02.2023, FIR IN CRIME NO.39/2023 IN HUMANABAD
POLICE STATION REGISTERED BY THE RESPONDENT POLICE
ON THE COMPLAINT LODGED BY ONE MR. NAGESH FOR
OFFENCES PUNISHABLE UNDER SECTIONS 25(9) ARMS ACT
AND SECTIONS 336 OF IPC AND ALL FURTHER INVESTIGATION
THERETO, PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE
AND JMFC COURT, HUMNABAD, BIDAR DIST.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has approached this Court under
Section 482 of Cr.P.C. seeking to quash the complaint
dated 18.02.2023, registered in Crime No.39/2023 of
Humanabad Police Station, for the offences punishable
under Sections 25 (9) of the Arms Act and under Section
336 of IPC.
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02. The factual matrix of the case that is necessary
for the purpose of this petition are as below :-
03. The complainant - Nagesh filed a compliant
before the Humanabad Police Station on 18.02.2023
stating that he is the Chairman of the Panch Committee of
Veerabhadreshwar Temple of Kallur. On 17.02.2023, while
he was returning from Kallur to Humanabad at about
02.30 p.m., near Basavateerth Math, the Mathadipathi of
the said Math, who is the petitioner herein, was holding a
revolver in his hand and had fired a bullet in the air. It was
also stated that there were many public on the road and
the petitioner being responsible person in the society and
knowing that such act may cause danger to the life of the
public, had fired in the air. Therefore, the complainant
sought action against the petitioner and also it was stated
that since it was a Shivaratri, he is giving the complaint on
the next day after finishing the religious ceremonies in his
family. The said complaint was registered in the above
crime number and investigation was launched.
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Now, the petitioner, who is arrayed as accused in the
said FIR, has approached this Court contending that the
complainant is collecting fund from the public under the
guise of developing the Temple and when he was
prevented by the petitioner, with vengeance he has filed a
false complaint. It is contended that the petitioner has not
committed any of the offences as alleged in the FIR. It is
stated that during the festival seasons like Ayudha Pooja
and Mahashivaratri, Deepavali, the arms and agricultural
equipments, gold articles and fire arms are exhibited, but
they are not used by any one; and taking advantage of the
same, a false complaint has been registered against the
petitioner. It is stated that the petitioner has an Arms
License. It is denied that on 17.02.2023 at about 02.30
p.m. the petitioner had fired in the air and the allegations
are frivolous. It is contended that the allegations of the
complainant that the petitioner was holding revolver on
17.02.2023 at 02.30 p.m. and fired in the air and
committed an act of negligence so as to endanger to the
human life is false. It is contended that the celebratory
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gunfire when it amounts to endangering to human life is
prohibited under Section 25 (9) of the Arms Act and
therefore, the registration of the FIR is illegal, nothing but
an abuse of process of law. It is contended that there is
inordinate delay in lodging the complaint and the video
clipping which has been submitted to the Investigating
Officer do not show any such act committed by the
petitioner and therefore, the FIR deserves to be quashed.
It is also submitted that there is a dispute regarding the
lands and the complainant had also circulated the
pamphlet stating that the petitioner is refused to receive
grant of rupees one crore for the development of the
Temple. It is stated that the complainant claiming himself
to be the Chairman of the Panch Committee had called a
meeting on 03.01.2023 in order to resist the act of the
petitioner. Therefore, the complaint is ridden with the
malafides and as such the proceedings is to be quashed.
04. The respondent No.2 - complainant has
appeared before this Court and filed objections contending
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that the investigation has not yet been commenced and
even before the police could find out whether the act of
the petitioner was endangering the human life or not, the
matter has been stayed. It is contended that the video
clipping which was submitted by the complainant to the
Investigating Officer need to be verified and whether the
people found in the clipping wherein in fact endangered by
the gunfire needs to be investigated. It is submitted that
the prima-facie the celebratory gunfire is not permitted
under Section 25 (9) of the Arms Act. The license issued is
also not for the purpose of celebratory gunfire. Hence, it is
contended that the petition is devoid of any merits and
therefore, the same be dismissed.
05. The learned High Court Government Pleader
has submitted that the investigation may be permitted to
be continued and only then it is come to the light whether
the act of the petitioner was endangering the human life
or not.
06. I have heard the arguments of the learned
Senior counsel Sri. Ravi Naik appearing for the petitioner,
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the learned High Court Government Pleader for the
respondent No.1 - State and Sri. B. V. Jalade, the learned
counsel for the respondent No.2 - complainant.
07. A prima-facie perusal of the complaint shows
that the complainant came to know while he was returning
from Kallur to Humanabad that people had gathered near
the Basavateerth Matha of the petitioner and therefore, he
went there and found that the petitioner had fired in the
air and the it was endangering the human life since many
people had gathered there. Therefore, he made video
recording of the same and has submitted the same to the
Investigating Officer seeking action against the petitioner.
08. The learned Senior counsel appearing for the
petitioner would submit that the celebratory gunfire is
permitted under Section 25 (9) of the Arms Act and what
is alleged is that the petitioner had fired in the air.
Evidently, it was the celebratory gunfire which is normally
permitted on the festive occasions. It is submitted that the
complainant had enmity with the petitioner as there is a
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dispute in respect of the properties of the Temple to the
extent of 10 acres and a panch committee was allegedly
formed at the instant of the complainant and therefore, he
had reasons to grudge against the petitioner. Therefore, in
order to settle the scores, a false complaint has been filed
by the complainant against the petitioner.
In this regard he has relied on the judgment of the Hon'ble
Supreme Court in the case of Mohammed Wajid and
another vs. State of U.P. and others, wherein the Hon'ble
Supreme Court after relying on the judgment in the case
of State of Haryana v. Bhajan Lal1, came to the conclusion
that the initiation of the prosecution has adverse and
harsh the consequences for the persons named as accused
and such right of the persons has to be protected. It is
held that in the case of Directorate of Revenue and others
vs. Mohammed Nisar Huliya, the Hon'ble Supreme Court
has expressly recognized the right not to be disturbed
without sufficient grounds as one of the underlining
1992 Supp (1) SCC 335
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mandate of Article 21 of the Constitution of India.
Therefore, when the criminal proceeding is manifestly
attended with the malafide intention and it is manifestly
instituted with an ulterior motive for wreaking vengeance
on the accused, it would be proper to quash the
proceedings.
09. The learned counsel appearing for the
respondent No.2 - complaint in furtherance his arguments
as stated supra has placed reliance on the decision in the
case of Niharika Infrastructure Pvt. Ltd., vs. State of
Maharastra and others , wherein it was held that the
quashing of the proceedings should be in rarest of the rare
circumstances. The Hon'ble Supreme Court in Para No.33
has laid down the conclusion which are as below:-
"Conclusions
33. In view of the above and for the reasons stated
above, our final conclusions on the principal/core issue,
whether the High Court would be justified in passing an
interim order of stay of investigation and/or "no coercive
steps to be adopted", during the pendency of the quashing
2021 (9) SCC 401
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petition under Section 482CrPC and/or under Article 226 of
the Constitution of India and in what circumstances and
whether the High Court would be justified in passing the
order of not to arrest the accused or "no coercive steps to
be adopted" during the investigation or till the final
report/charge-sheet is filed under Section 173CrPC, while
dismissing/disposing of/not entertaining/not quashing the
criminal proceedings/complaint/FIR in exercise of powers
under Section 482CrPC and/or under Article 226 of the
Constitution of India, our final conclusions are as under:
33.1. Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into a
cognizable offence.
33.2. Courts would not thwart any investigation into the
cognizable offences.
33.3. It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report that the Court will not permit an investigation to go
on.
33.4. The power of quashing should be exercised
sparingly with circumspection, as it has been observed, in
the "rarest of rare cases" (not to be confused with the
formation in the context of death penalty).
33.5. While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an enquiry
as to the reliability or genuineness or otherwise of the
allegations made in the FIR/complaint.
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33.6. Criminal proceedings ought not to be scuttled at
the initial stage.
33.7. Quashing of a complaint/FIR should be an
exception rather than an ordinary rule.
33.8. Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs of the
State operate in two specific spheres of activities and one
ought not to tread over the other sphere.
33.9. The functions of the judiciary and the police are
complementary, not overlapping.
33.10. Save in exceptional cases where non-
interference would result in miscarriage of justice, the
Court and the judicial process should not interfere at the
stage of investigation of offences.
33.11. Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice.
33.12. The first information report is not an
encyclopaedia which must disclose all facts and details
relating to the offence reported. Therefore, when the
investigation by the police is in progress, the court should
not go into the merits of the allegations in the FIR. Police
must be permitted to complete the investigation. It would
be premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process of law.
After investigation, if the investigating officer finds that
there is no substance in the application made by the
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complainant, the investigating officer may file an
appropriate report/summary before the learned Magistrate
which may be considered by the learned Magistrate in
accordance with the known procedure.
33.13. The power under Section 482CrPC is very wide,
but conferment of wide power requires the court to be
more cautious. It casts an onerous and more diligent duty
on the court.
33.14. However, at the same time, the court, if it thinks
fit, regard being had to the parameters of quashing and
the self-restraint imposed by law, more particularly the
parameters laid down by this Court in R.P. Kapur [1960
SCC OnLine SC 21 : AIR 1960 SC 866] and Bhajan
Lal [1992 Supp (1) SCC] , has the jurisdiction to quash the
FIR/complaint.
33.15. When a prayer for quashing the FIR is made by
the alleged accused and the court when it exercises the
power under Section 482CrPC, only has to consider
whether the allegations in the FIR disclose commission of a
cognizable offence or not. The court is not required to
consider on merits whether or not the merits of the
allegations make out a cognizable offence and the court
has to permit the investigating agency/police to investigate
the allegations in the FIR.
33.16. The aforesaid parameters would be applicable
and/or the aforesaid aspects are required to be considered
by the High Court while passing an interim order in a
quashing petition in exercise of powers under Section
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482CrPC and/or under Article 226 of the Constitution of
India. However, an interim order of stay of investigation
during the pendency of the quashing petition can be
passed with circumspection. Such an interim order should
not require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the High
Court should restrain itself from passing the interim order
of not to arrest or "no coercive steps to be adopted" and
the accused should be relegated to apply for anticipatory
bail under Section 438CrPC before the competent court.
The High Court shall not and as such is not justified in
passing the order of not to arrest and/or "no coercive
steps" either during the investigation or till the
investigation is completed and/or till the final
report/charge-sheet is filed under Section 173CrPC, while
dismissing/disposing of the quashing petition under Section
482CrPC and/or under Article 226 of the Constitution of
India.
33.17. Even in a case where the High Court is prima
facie of the opinion that an exceptional case is made out
for grant of interim stay of further investigation, after
considering the broad parameters while exercising the
powers under Section 482CrPC and/or under Article 226 of
the Constitution of India referred to hereinabove, the High
Court has to give brief reasons why such an interim order
is warranted and/or is required to be passed so that it can
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demonstrate the application of mind by the Court and the
higher forum can consider what was weighed with the
High Court while passing such an interim order.
33.18. Whenever an interim order is passed by the High
Court of "no coercive steps to be adopted" within the
aforesaid parameters, the High Court must clarify what
does it mean by "no coercive steps to be adopted" as the
term "no coercive steps to be adopted" can be said to be
too vague and/or broad which can be misunderstood
and/or misapplied.
10. Therefore, he submits that the Investigating
Officer has to be permitted to investigate the matter to
find out whether the act of petitioner falls within the scope
of Section 25 (9) of the Arms Act and Section 336 of IPC.
He has also filed a pen-drive containing the clipping of the
alleged celebratory gunfire of the petitioner.
11. A perusal of the complaint would show that
according to the complainant, the petitioner was standing
near on the Tar road near Basavateertha Matha holding
the revolver and one round was fired in the air. At that
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time several public were standing on the road and the
firing could have endangered the life of the public.
12. The petitioner has produced a pamphlet which
contains the allegations against the petitioner and meeting
was called by the alleged panch committee of
Veerabhadreshwar Temple Basavateertha Matha,
Humanabad. There are imputations against the petitioner
herein. The fact that the complainant is the Chairman of
the panch committee is not in dispute since the complaint
itself mention about the same.
13. The gun license is produced by the petitioner
and it is evident that it was in force till 10.08.2027. This
license also discloses that several conditions were imposed
as mentioned in the endorsement of the license. The
condition No.5 on page 15 of the licence reads as below:
"5. The licence or any retainer acting
under the licence shall not carry any arms
covered there by otherwise than in good faith
for the purpose of sport/ protection/ display;
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and save where be is specially authorized in
this behalf by the district magistrate
concerned he shall not take any such arms to
a fair religious procession or other public
assemblage."
14. It is evident that that the fire arm shall not be
taken to a fair, religious procession or other public
assemblages. Thus, it is evident that condition No.5
specifically says that it should not be taken to the public
assemblages but it can only be taken for the purpose of
display.
15. The provisions of Section 25(9) of the Arms Act
reads as below:
"25(9). Whoever uses firearm in a rash or
negligent manner in celebratory gunfire so as
to endanger human life or personal safety of
others shall be punishable with an
imprisonment for a term which may extend
to two years, or with fine which may extend
to rupees one lakh, or with both.
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Explanation.- For the purposes of this
sub-section, "celebratory gunfire" means the
practice of using firearm in public gatherings,
religious places, marriage parties or other
functions to fire ammunition."
16. It is also to be noted that the Arms Rules, 2016
states about the terms and conditions of the use of the fire
arms. Rule 112 defines the common conditions applicable
all types of licences. Thus, it is evident that under Rule
112, the authority granting or renewing the licence has the
right to enquire at any time during the currency of the
licence, whether the arms or ammunition for which it has
been granted, is still in the possession of the licensee, and
may require the production of the arms or ammunition for
the purpose of such an enquiry etc. It is pertinent to note
that coupled with the Schedule-III of the Rules, the
licensing authority is empowered to impose additional
conditions while granting the licence.
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17. From the perusal of the above provisions of law,
it is clear that the licensing authority is at liberty to impose
additional conditions if necessary and such additional
condition No.5 as imposed by the licensing authority
stated in the licence is reproduced supra. Therefore, it is
evident that prima-facie the licence was not issued to
carry the gun even for the celebratory gun fires at the
public assemblages as per condition No.5. This would
show that there is a prima-facie violation of Section 25(9)
of the Arms Act.
18. The fact as to whether there is an offence under
Section 336 of IPC is a matter which needs to be
investigated by the Investigating Officer. The perusal of
the video clipping shows that there are many people
surrounding the petitioner. It is not known whether those
people who are surrounding with the petitioner are his
followers or belonging to the rival party. Unless it is
ascertained by the investigating officer as to whether the
crowed around the petitioner was his followers or not, it is
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not possible to come to a conclusion that the act of the
petitioner was endangering the public or not. If the
followers obviously knew what is going to happen, it
cannot be said that it was endangering the life of the
people. However, if they are general public, who are
unaware of the celebratory gun fire which was done by the
petitioner, definitely they would be susceptible for
panicking. Therefore, it is a matter which should be the
out come of the investigation.
19. A decision of the Patna High Court in Md.
Kaisar Warsi V/s State of Bihar through Home
Secretary an others3, also deals with the conditions of
the licences and Section 25(9) of the Arms Act. Though
the facts are different, the conditions and the question
whether celebratory gunfire is permissible or not was dealt
by the said Court. The Single Bench of the Patna High
Court came to the conclusion that celebratory gunfire was
not permitted in view of condition No.5 mentioned in the
2023 SCC OnLine Pat 4116 :AIR 2023 Pat 198
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licence. In the case on hand also, the condition No.5
mentioned in the licence as reproduced supra, prohibits
carrying the firearm at public assemblages. Hence, this
Court do not find any merit in the petition and as such it
do not fall within the purview of the rarest of the rare
cases as stated by Supreme Court in Neeharika
Infrastructure Private Limited V/s State of Maharashtra
and others. It cannot be said that the present criminal
proceedings is manifestly attended with malafides, though
it is a fact that the respondent No.2 complainant had
reasons to grudge against the petitioners. It is in this
context that the investigating officer has to be directed to
make a impartial investigation and come up with an
appropriate final report. It is needless to say that the
investigating officer need not take any sides and he shall
come with up an appropriate report unbiased by the rivalry
between the respondent No.2 and the petitioner. With
these observations, the petition being bereft of any merits,
deserves to be dismissed. Hence the following:
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ORDER
The petition is dismissed.
Consequently the interim applications stand
dismissed and interim order stand merged with the final
order.
Sd/-
JUDGE
KJJ/SMP
CT:PK
