Karnataka High Court

Harish K B vs Smt Ponnamma on 11 January, 2024

                           1          CRL.RP NO.1344 OF 2019




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY, 2024

                        BEFORE

            THE HON'BLE MS.JUSTICE J.M.KHAZI

     CRIMINAL REVISION PETITION NO.1344 OF 2019

BETWEEN:

HARISH K B
S/O K BHASKAR RAJU
AGED ABOUT 24 YEARS
NO.172/32,MUNIYAPPA LAYOUT
BEHIND RNS MOTORS
GARVEBHAVI PALYA
BENGALURU - 560 068

                                         ...PETITIONER
(BY SRI. TOMY SEBASTIN, SENIOR COUNSEL FOR
SRI. GIRISH Y L, ADVOCATE)

AND:

1.   SMT PONNAMMA
     W/O LATE SHRI HFL RAJAPPAN
     AGED ABOUT 65 YEARS
     RESIDING AT NO.61,
     3RD CROSS, KRISHNA NAGAR,
     BENGALURU - 560 015

2.   THE STATE OF KARNATAKA
     BY STATION HOUSE OFFICER
     PEENYA POLICE STATION
     BENGALURU - 560 058
     REP BY SPP, HIGH COURT
     BUILDING, BENGALURU - 01
                                       .....RESPONDENTS

(BY SRI. ADITHYA S KUMAR, ADVOCATE FOR R1;
    SRI. CHANNAPPA ERAPPA, HCGP FOR R2)
                              2           CRL.RP NO.1344 OF 2019




    THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
06.08.2019 PASSED BY THE LXV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1111/2017
AND ENHANCE THE SENTENCE AWARDED BY THE XLV
ADDITIONAL     CHIEF   METROPOLITAN     MAGISTRATE,
BENGALURU CITY IN C.C.NO.17338/2016, TO MEET THE
ENDS OF JUSTICE.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 04.12.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:

                          ORDER

This criminal petition filed under Section 397 r/w

401 of Cr.P.C, is by the complainant, challenging the

order of the trial Court, by which on the basis of accused

pleading guilty for the offence punishable under Section

429 IPC, Section 93 of Karnataka Police Act and Section

11 of Prevention of Cruelty to Animals Act, 1960, the

trial Court sentenced the accused only to pay fine and in

default to undergo simple imprisonment.

2. For the sake of convenience, the parties are

referred to by the rank before the trial Court.

3. Complainant Harish, Honorary Animal Welfare

Officer, filed a complaint against the accused alleging

that on 15.03.2016, in the evening, accused removed

eight puppies aged 20 days old from the drain near her

house and flung them in a nearby site, as a result of

which they died. When questioned, she did not show any

remorse and think that she has not done anything

wrong. She blocked the drain so that the pups and their

mother could not go back to the drain.

4. Based on the complaint, the concerned police

have registered case against the accused for the offences

punishable under Section 429 IPC, Section 93 of

Karnataka Police Act and Section 11 of Prevention of

Cruelty to Animals Act. After completing the

investigation, the concerned police filed charge sheet

against the accused for the above offences.

5. After due service of summons, accused

appeared before the trial Court and pleaded guilty to the

charges leveled against her. The trial Court has convicted

and sentenced her to pay fine as under:

"Accused is convicted and sentenced to pay fine of Rs.700/- for the offence p/u/s 429 IPC and in default of payment of fine accused shall undergo simple imprisonment for 7 days. Accused is convicted and sentenced to pay fine of Rs.100/- for the offence p/u/s 93 of K.P. Act and in default of payment of fine accused shall undergo simple imprisonment for 15 days.

Accused is convicted and sentenced to pay fine of Rs.200/- for the offence p/u/s 11 of Prevention of Cruelty to Animals Act, 1960 and in default of payment of fine accused shall undergo simple imprisonment for 15 days."

6. Not being satisfied with the quantum of

punishment imposed, the complainant filed appeal under

Section 372 Cr.P.C before the Session Court. After

securing the presence of accused and considering the

arguments of both sides, the Sessions Court dismissed

the appeal by holding that in exercise of its discretionary

power, the trial Court has imposed the punishment and it

is not a case to interfere.

7. Being aggrieved by the order passed by the

trial Court as well as the Sessions Court, the complainant

is before this Court, contending that the order passed by

both Courts below is contrary to the facts and gravity of

the case. After investigation, the concerned police filed

charge sheet against the accused. When the accused

voluntarily appeared and pleaded guilty, both trial Court

and Sessions Court have committed error in taking

lenient view by awarding a flea bite sentence. It is

unjust, improper and liable to be set aside. The Courts

below ought to have exercised judicial discretion with

proper application of mind. The trial Court without

hearing the accused has imposed the sentence. The

punishment imposed is not in commensurate with the

gravity of the offence committed by the accused. Article

51 (A) (g) of the Constitution of India mandate that it is

the duty of every citizen to have compassion for living

creatures and sought for enhancing the punishment

imposed on the accused.

8. In support of his arguments, the learned

counsel representing the complainant has relied upon the

following decisions:

(i) Animal Welfare Board of India Vs. A.Nagaraja and Ors. (A.Nagaraja)1

(ii) Bhartiya Govansh Rakshna Sanverdhan Parishad Vs. The Union of India & Ors.

(Bhartiya Govansh Rakshna)2

(iii) Lalit Miglani Vs. State of Uttarakhan & Ors.

(Lalit Miglani)3

(iv) Thomas Vs. State of Kerala (Thomas)4

(v) State of Punjab Vs. Balwinder Singh & Ors. (Balwinder Singh)5

(vi) Soman Vs. State of Kerala (Soman)6

(vii) Sardar Khan & Anr. Vs. State of Bihar & Anr (Sardar Khan)7

(viii) Narayan Dutt Bhatt Vs. Union of India & Ors.

(Narayan Dutt Bhatt)8

(ix) Collector Land Acquisition and Anr Vs. Mst.Katiji & Ors. (Katiji)9

(x) Prakash Vs. State by Turuvanur Police rep. by State Public Prosecutor (Prakash)10

(xi) Narasappa & Ors. Vs. State of Karnataka & Ors. (Narasappa)11

(2014) 7 SCC 547

MANU/HP/0697/2016

MANU/UC/0067/2017

2013 Crl.L.J 825

(2012) 2 SCC 182

(2013) 11 SCC 382

MANU/UC/0431/2018

AWC 1987 SC 675: AIR 1987 SC 1353

MANU/KA/0075/2010

MANU/KA/0501/2017

9. On the other hand, learned counsel

representing respondent No.1/accused submitted that

this was the first offence committed by the accused and

taking into consideration the age of the accused and the

fact that she pleaded guilty, using its discretion the trial

Court has rightly imposed the punishment of fine only

and the Sessions Court has also declined to interfere and

prays to dismiss the petition.

10. Heard arguments of both sides and perused

the record.

11. Thus, the grievance of complainant is that

despite the accused pleading guilty, the trial Court has

imposed a flea bite sentence and let go the accused after

paying fine. The Sessions Court has also failed to

exercise its jurisdiction and dismissed the appeal filed by

the complainant.

12. The allegations made against the accused are

that a stray bitch has given birth to eight puppies in the

drain situated in front of the house of accused. As they

were hauling day in and out, being annoyed by their

constant noise, accused removed the puppies from the

drain and kept them in an open site. As a result the

puppies could not go back to their mother and for want

of her care and protection and also not getting the milk

from their mother the puppies died after two days. After

the puppies died, it was brought to the notice of

complainant and on the basis of information gathered

from the neighbours, he filed the complaint.

13. After conducting detailed investigation, the

concerned police have filed charge sheet against the

accused for the offences punishable under Section 429

IPC, Section 93 of Karnataka Police Act and Section 11 of

Prevention of Cruelty to Animals Act.

14. After due service of summons, the accused

appeared before the trial Court and wanted to plead

guilty for the charges. In fact, the trial Court has

cautioned the accused about the consequences of

pleading guilty. However, the accused was very firm and

went ahead with pleading guilty to the charges. Taking

into consideration the punishment prescribed for the

offences, the trial Court has sentenced the accused to

pay fine with the default sentence of imprisonment. The

accused has paid the fine and obeyed the order of the

Court.

15. The State has not challenged the said order.

However, complainant filed appeal under Section 372

Cr.P.C before the Sessions Court. There was also delay in

filing the appeal. The Sessions Court has dismissed the

appeal both on merits as well as on the ground of delay.

At this juncture, it is relevant to note that under Section

372 Cr.P.C, the victim is having a right to prefer appeal

against any order passed by the Court acquitting the

accused or convicting for a lesser offence or imposing

inadequate compensation. The plain reading of the

Section makes it clear that the victim has no right of

appeal, challenging the quantum of punishment. He can

only challenge the acquittal or convicting for a lesser

offence or imposing inadequate compensation. However,

the Session Court has disposed of the appeal on merit as

well as on limitation.

16. At the outset it is relevant to note that when

the incident took place, the accused was aged 65 years.

She is said to be the wife of Air Force employee. She was

staying with her son who was employed in a private

establishment. Finding a stray bitch having given birth to

8 puppies and they were howling day in and out, she has

removed the puppies from the drain and kept them in a

vacant site. It is alleged that because of this, the puppies

could not go back to their mother and died in the sun.

Though it is alleged that the puppies could not go to their

mother, it is not clear whether the bitch was also not

able to reach her puppies.

17. Anyhow, fact remains that accused pleaded

guilty and the trial Court has convicted and sentenced

her to pay fine with the default sentence of

imprisonment. The maximum punishment prescribed for

the offence under Section 429 IPC is imprisonment for a

period of two years or fine or both. Similarly, for the

offence punishable under Section 93 of the Karnataka

Police Act, the punishment prescribed is fine,

imprisonment which may extend to one month or with

fine which may extend to Rs.100/- or with both. So far

as the offence punishable under Section 20 of Prevention

of Cruelty to Animals Act is concerned, the punishment

prescribed is fine which may extend to Rs.200/-. Such

being the case, taking into consideration the fact that

accused choose to plead guilty, the trial Court exercising

its discretion had imposed punishment of fine.

18. Having regard to the fact that at the time of

incident, the accused was aged 65 years and she has

admitted her guilt, the trial Court was well within its

power to exercise discretion. Now accused is aged about

72 years. Having regard to these aspects, this Court is of

the considered opinion that this is not a fit case to

interfere in exercise of the power under Section 397 r/w

401 Cr.P.C. In the light of the facts and circumstances of

the case, the decisions relied upon by the complainant

are not applicable to the case on hand. In the result, the

petition fails and accordingly the following order:

ORDER

(i) The petition filed by the complainant under

Section 397 r/w 401 Cr.P.C is dismissed.

(ii) The order dated 23.01.2017 in

C.C.No.17338/2016 on the file of XLV

ACMM, Bengaluru and judgment and order

dated 06.08.2019 in Crl.A.No.1111/2017

on the file of LXV Addl.City Civil and

Sessions Judge, Bengaluru are hereby

confirmed.