Karnataka High Court

Sri. Kumara Naik Megyanaik vs The State Of Karnataka on 18 February, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                                  CRL.P No. 103265 of 2023




                                        IN THE HIGH COURT OF KARNATAKA,
                                                DHARWAD BENCH

                                  DATED THIS THE 18TH DAY OF FEBRUARY, 2025

                                                   BEFORE
                                  THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

                                    CRIMINAL PETITION NO.103265 OF 2023
                                          (482(Cr.PC)/528(BNSS))

                             BETWEEN:

                             1.   SRI KUMARA NAIK MEGYANAIK,
                                  AGE: 28 YEARS,
                                  OCC: AGRICULTURE,
                                  R/O: NAGALAPURA TANDA,
                                  H. B. HALLI, TQ: H. B. HALLI,
                                  DIST: VIJAYANAGARA,
                                  PIN - 583 212.

                             2.   SRI KUMARA NAIK KOTRESHA NAIK,
                                  AGE: 25 YEARS,
                                  OCC: AGRICULTURE,
                                  R/O: NAGALAPURA TANDA,
                                  H. B. HALLI, TQ: H. B. HALLI,
                                  DIST: VIJAYANAGARA,
VISHAL                            PIN - 583 212.
NINGAPPA
PATTIHAL
Digitally signed by VISHAL
NINGAPPA PATTIHAL
                             3.   SRI NAGARAJ D. DAKYA NAIK,
Location: High Court of
Karnataka Dharwad Bench
Date: 2025.02.19 10:32:29
+0530
                                  AGE: 28 YEARS,
                                  OCC: AGRICULTURE,
                                  R/O: NAGALAPURA TANDA,
                                  H. B. HALLI, TQ: H. B. HALLI,
                                  DIST: VIJAYANAGARA,
                                  PIN - 583 212.

                             4.   SRI NAGARAJ B. BHIMANAIK NAIK,
                                  AGE: 25 YEARS,
                                  OCC: AGRICULTURE,
                                  R/O: NAGALAPURA TANDA,
                                  H. B. HALLI, TQ: H. B. HALLI,
                                  DIST: VIJAYANAGARA,
                                  PIN - 583 212.
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                                      CRL.P No. 103265 of 2023




5.   SRI SANTOSHA S/O. JAPA NAIK,
     AGE: 28 YEARS,
     OCC: AGRICULTURE,
     R/O: NAGALAPURA TANDA,
     H. B. HALLI, TQ: H. B. HALLI,
     DIST: VIJAYANAGARA,
     PIN - 583 212.

6.   SRI ANIL S/O. PAKKIR NAIK,
     AGE: 35 YEARS,
     OCC: AGRICULTURE,
     R/O: NAGALAPURA TANDA,
     H. B. HALLI, TQ: H. B. HALLI,
     DIST: VIJAYANAGARA,
     PIN - 583 212.

7.   SRI VALYA NAIK RAKYA NAIK,
     AGE: 45 YEARS,
     OCC: AGRICULTURE,
     R/O: NAGALAPURA TANDA,
     H. B. HALLI, TQ: H. B. HALLI,
     DIST: VIJAYANAGARA,
     PIN - 583 212.

8.   SRI SURESHA J S/O. JYOTI NAIK,
     AGE: 28 YEARS,
     OCC: AGRICULTURE,
     R/O: NAGALAPURA TANDA,
     H. B. HALLI, TQ: H. B. HALLI,
     DIST: VIJAYANAGARA,
     PIN - 583 212.

9.   SRI SURESH NAIK RAMESHA NAIK,
     AGE: 25 YEARS,
     OCC: AGRICULTURE,
     R/O: NAGALAPURA TANDA,
     H. B. HALLI, TQ: H. B. HALLI,
     DIST: VIJAYANAGARA,
     PIN - 583 212.

10. SRI SOMASHEKAR DURGYA NAIK,
    AGE: 20 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
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                                     CRL.P No. 103265 of 2023




    DIST: VIJAYANAGARA,
    PIN - 583 212.

11. SRI REKYA NAIK BHOJYA NAIK,
    AGE: 42 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
    DIST: VIJAYANAGARA,
    PIN - 583 212.

12. SRI THIPPA NAIK CHANDARA NAIK,
    AGE: 46 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
    DIST: VIJAYANAGARA,
    PIN - 583 212.

13. SRI DEVENDRA NAIK NAGARAJA NAIK,
    AGE: 28 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
    DIST: VIJAYANAGARA,
    PIN - 583 212.

14. SRI VENKATESHA NAIK JAPA NAIK,
    AGE: 34 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
    DIST: VIJAYANAGARA,
    PIN - 583 212.

15. SRI NAGENDRA @ NAGARAJA
    S/O. HARICHANDRA NAIK,
    AGE: 36 YEARS,
    OCC: AGRICULTURE,
    R/O: NAGALAPURA TANDA,
    H. B. HALLI, TQ: H. B. HALLI,
    DIST: VIJAYANAGARA,
    PIN - 583 212.

16. SRI BASAVARAJ LAMANI KOTEPPA,
    AGE: 30 YEARS,
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                                    CRL.P No. 103265 of 2023




     OCC: OWNER,
     R/O: ADARAHALLI MEGALLI TANDA,
     ADARALLI VILLAGE,
     DIST: GADAG, PIN - 582 116.
                                                 ...PETITIONERS
(BY SRI ANAND R. KOLLI AND
SRI D.V.PATTAR, ADVOCATES)

AND:

1.   THE STATE OF KARNATAKA,
     REPRESENTED BY STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA,
     DHARWAD,
     THROUGH T. B. HALLI POLICE STATION,
     TQ: HAGARIBOMMANAHALLI,
     DIST: VIJAYANAGAR,
     PIN - 583 212.

2.   SRI NARAYANA
     AGE: 55 YEARS, OCC: PSI,
     R/O: T. B. HALLI POLICE STATION,
     TQ: HAGARIBOMMANAHALLI,
     DIST: VIJAYANAGAR, PIN -583 212.
     REPRESENED BY SPP HIGH COURT
     OF KARNATAKA, DHARWAD.
                                                ...RESPONDENTS
(BY SRI SHARAD V. MAGADUM, AGA)


       THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN (CONNECTION
WITH IN CRIME NO.74/2022 T. B. HALLI P.S ) CC NO.701/022 FOR
THE OFFENCES P/U/S 143, 147, 148, 186, 323, 341, 353, 324, 323,
332, 333, 326, 290 R/W 149 OF IPC AND SEC. 3, 181, 146, 196 OF
INDIAN MOTOR VEHICLE ACT 1988. PENDNG BEFOE CIVIL JUDGE AND
JMFC, HAGRIBOMMANAHALLI IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.,


       THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THERIEN AS UNDER:
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                                      CRL.P No. 103265 of 2023




                    ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

1. The petitioners are before this Court seeking the

following prayer:

"Wherefore, the petitioner/accused no.1 to 15 and most respectfully prays that this Hon'ble court may be pleased to quash the entire proceedings in (connection with in Crime No.74/2022 T. B. Halli P.S CC No.701/022 for the offences p/u/s 143, 147, 148, 186, 323, 341, 353, 324, 323, 332, 333, 326, 290 r/w 149 of ipc and sec. 3, 181, 146, 196 of Indian Motor Vehicle Act 1988 Pending before Hon'ble Civil Judge and JMFC, Hagribommanahalli in the interest of justice."

2. This Court qua accused Nos.16 and 17 in Crl.P.

No.103938/2023 had passed the following order:

1. The petitioners are before this Court seeking following prayer:

A. QUASH THE ORDER DATED 08.11.2022 IN TAKING COGNIZANCE AND ALSO SEEKING QUASHING THE ENTIRE CHARGE SHEET IN CC NO. 701/2022 ON THE FILE OF THE CIVIL JUDGE AND JMFC AT HAGARIBOMMANAHALLI FOR OFFENCE U/S 323, 332, 333, 143,147, 148, 353, 341,326, 323, 290 AND 186 R/W 149 IPC AND U/S 3, 181, 146 AND 196 OF INDIAN MOTOR VEHICLE ACT IN SO FAR THE PETITIONERS/ACCUSED NO. 16 AND 17 ARE CONCERNED.

B. PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEM FIT IN THE CIRCUMSTANCE OF THE CASE.

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2. Learned counsel for the petitioners would submit that the issue in the lis stands covered by the judgments rendered by this Court in plethora of cases, two of such cases are relied by the learned counsel appearing for the petitioners.

3. This Court in Crl.P.No.6314/2022 has held as follows:

3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, disposed on 18.06.2021. The learned High Court Government Pleader would admit the position that the issue stands covered by the aforesaid judgment, wherein the Co-ordinate Bench of this Court has held as follows:

"4. The case of the prosecution in brief is as follows:

The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization.

When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

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6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

(ii) of any abetment of, or attempt to commit, such offence; or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

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9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy, the Hon'ble Supreme Court held as follows:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

(Emphasis supplied)

11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.

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The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."

4. Another order in Crl.P.No.6763/2020 rendered prior to one that is quoted supra, this Court by following the earlier judgment rendered by the Co-ordinate bench has held as follows:

2. The issue in the petition is akin to what is decided in Crl.P.No.3916/2018 disposed on 17.02.2020, wherein this Court has examined the identical facts and offences alleged against the petitioners therein. While so examining, this Court has held as follows:

"4. The gist of the complaint is that on 23.05.2017 at about 11.30 a.m., received a credible information that a group of people gathered on Queen's Road shouting slogans against the Government. Immediately, he went to the spot and found that 50 young men assembled illegally and disturbed the public and vehicles without prior permission from the station. On enquiry he found that they are the members of Campus Front of India Karnataka and protesting against interference religious and personal freedoms by imposing dress code in 'AIIMS Exam' which is against the personal and religious rights of our Constitution. Immediately they were disbursed and a case has been registered and after investigation, the charge sheet has been filed.

5. It is the submission of the learned counsel for petitioners that though there is no substantial material as against petitioners/accused Nos.1 to 48, the respondent have investigated the case and have filed the charge sheet against petitioners/accused Nos.1 to 48. It is his further submission that in order to file a charge sheet under Section 143 of IPC, the unlawful assembly must satisfy the ingredients as contemplated under Section 141 of IPC but none of the ingredients are satisfied in this case. It is his further submission that mere presence in an unlawful assembly, cannot render a person liable

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unless there was a common object, they were actuated by the common object and that object is one of those set out under Section 141 of IPC. It is his further submission that if the common object of an unlawful assembly is not proved, the accused persons cannot be convicted either under Section 143 of IPC or under Section 149 of IPC. It is his further submission that the prosecution has to prove the overt-acts as against the persons who have been alleged as a member of unlawful assembly. In order to substantiate his said contention, he has relied upon the decision of the Hon'ble Apex Court in the case of CHARAN SINGH AND OTHERS Vs. STATE OF UTTAR PRADESH reported in (2004) 4 SCC 205. It is his further submission that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order 2009, the permission is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention to conduct the meeting, protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access. The said condition specially says that no permission or license is required in Bangalore City if the congregation of more than 250 persons assembling at one place with an intention of conducting meeting to protest. It is the specific submission that petitioners/accused Nos.1 to 48 have given the letter dated 20.05.2017 seeking permission but no such permission is granted by the Commissioner of Police., under such circumstance, the said assembly cannot be held as an unlawful assembly and the provisions of Sections 141, 143, 147, 149, 188 of IPC are not attracted. On these grounds, he prayed to allow the petition and to quash the proceedings.

6. Per contra, learned High Court Government Pleader vehemently argued and submitted that as per the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) order, 2009 the congregation of more than 250 persons is required but as per Section 141 of IPC, an assembly of five or more persons is

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considered to be an unlawful assembly and if they have assembled with a common object, then under such circumstance, accused persons can be prosecuted for the alleged offences. It is his further submission that the contents of the complaint and other materials clearly indicate that they were intending to proceed to Raj Bhavan in that light, they have obstructed the public traffic, public movement and thereby, they have violated the provisions of Section 141 of IPC and other provisions of law. It is his further submission that there are independent eye-witnesses and they have also categorically stated with regard to the overt-acts of each of the accused persons and there is ample materials to connect the accused persons to the alleged crime. On these ground, he prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.

8. On perusal of records, it is the case of the prosecution that the petitioners/accused Nos.1 to 48 have assembled and were protesting against interference and dress code imposed by AIIMS exam and also have not obtained any permission from the concerned Authorities. But as could be seen from the Licensing and Controlling of Assemblies and Public Processions (Bangalore City) Order, 2009 assembly means a congregation of more than 250 persons assembling at one place with an intention of conducting meeting or protest, to hear a public speech including political, social, religious and cultural meetings to which the public have got free access, license is required only when more than 250 persons are there. Admittedly in the instant case, the contents of the complaint and other materials indicates that only 50 persons have assembled. In that light, a license said to have been is not necessary as per the Order of 2009. The only question which remains for consideration of this Court is that whether the assembly of petitioners/accused Nos.1 to 48 had constituted an unlawful assembly as per Section

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141 of IPC? In order to attract the said provision, the assembly must satisfy five ingredients which have been stated therein but on close reading of the contents of the complaint, charge sheet material and other materials, it indicates that none of the ingredients are present as contemplated under Section 141 of IPC.

9. Be that as it may. If 50 persons have assembled at a particular place, then under such circumstance, it cannot be held as an unlawful assembly. Mere presence of a person in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141 of IPC. This proposition of law has been laid down by the Hon'ble Apex Court in the case of CHARAN SINGH (Quoted supra) at paragraph No.13, it has been observed as under:

"13. Coming to the others who were armed with double-barrelled guns and country-made pistols, the question is regarding applicability of Section 149 IPC. Section 149 IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section

141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to

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commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly."

10. On close perusal of the charge sheet material, it indicates that none of the ingredients specify in Section 141 of IPC are present so as to attract the provisions of Sections 141, 143, 149, 188 of IPC. When that being the case, then under such circumstances, the proceedings initiated as against petitioners/accused Nos.1 to 48 appears to be not in accordance with law and the same is liable to be quashed

11. Accordingly, petition is allowed and the proceedings initiated in C.C. No.23259/2017

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pending on the file of VIII Additional CMM, Bengalulru for the offence punishable under Section 143 read with Section 149 of IPC is hereby quashed."

The aforesaid order passed by a Co-ordinate Bench of this Court would cover, the case at hand on all its fours. That apart, there were no witnesses that would speak about the incident alleged against the petitioners which has happened in a broad day light, apart from all the witnesses examined being police officials.

5. Learned HCGP would also submit that the issue is akin to what is decided by this Court in the aforesaid cases.

6. In the light of the issue being the same and already answered by this Court in the aforequoted two judgments, petition deserves to succeed.

For the aforesaid reasons, the following: