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2020 Supreme(Kar) 1668
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.S. Mudagal, J.
State Of Karnataka - Appellant
Versus
Avinash R Kashyap - Respondent
Criminal Revision Petition No. 1028 of 2016
Decided On : 21-10-2020
H.R. Showri, Advocate, C.V. Srinivasa, Advocate
The discharge of an accused prior to the stage of Section 248 Cr.P.C. does not amount to acquittal, and therefore, Section 300 Cr.P.C. is not attracted.
Headnote:
Double Jeopardy - Criminal Defamation - Section 469 of IPC - Section 500 of IPC - Section 199(2) of Cr.P.C. - Section 199(5) of Cr.P.C. - Section 300 of Cr.P.C.
Fact of the Case:
The accused was charged with creating a false profile of the President of India on a website. He was discharged in a previous case and sought discharge in a subsequent case on grounds of double jeopardy and lack of evidence.
Finding of the Court:
The Sessions Court reversed the Trial Court's decision and discharged the accused, citing double jeopardy and lack of evidence.
Issues: The main issues were whether the accused could be tried again for the same offence, and whether there was sufficient evidence to proceed against the accused.
Ratio Decidendi: The discharge of the accused in the previous case did not amount to acquittal, and therefore, the principle of double jeopardy did not apply. Additionally, the evidence presented was deemed insufficient to proceed against the accused.
Final Decision: The Revision Petition was dismissed, upholding the Sessions Court's decision to discharge the accused.
JUDGMENT
K.S.Mudagal, J. - Aggrieved by the order dated 22.01.2016 passed by the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Crl.R.P.No.9/2015 reversing the order of the Chief Judicial Magistrate, Bangalore Rural District, Bangalore dated 04.02.2015 in C.C.No.4456/2014 and discharging the accused/respondent from the charge for the offence punishable under Section 469 of IPC, the above revision petition is preferred by the prosecution.
2. One Barun Mitra, Joint Secretary to the President of India filed complaint dated 26.02.2009 to Shri.S.B.S. Tyagi, Deputy Commissioner of Police (Security), Rashtrapati Bhavan, New Delhi alleging that somebody has mischievously created false profile of her Excellency Smt.Prathiba Devi Singh Patil the Hon ble President on the website wwworkut.com. It was alleged that the contents of the said profile were objectionable, incorrect, defamatory and casting imputation concerning the Hon ble President of India, directly or indirectly lowering dignity of the President in the estimation of the others. Therefore, he requested to investigate into the matter and take action. On that basis, a FIR was registered in Crime No.134/2009 of Economic Offences Wing police station, New Delhi for the offence under Section 469 of IPC.
3. After investigation, the respondent herein was charge sheeted for the offence punishable under Section 469 of IPC. Thereafter, the accused filed transfer petition before the Supreme Court and consequently, the said case was transferred to the Court of Chief Judicial Magistrate, Bangalore Rural District, Bangalore.
4. The same complainant filed another private complaint against the accused before Tees Hazari Court under Section 199(2) of Cr.P.C., to prosecute the accused for the offence of defamation punishable under Section 500 of IPC.
5. On the petition of the accused before the Supreme Court, even that complaint was transferred to the Court of Principal Sessions Judge, Bangalore Rural District, Bangalore and was registered in C.C.No.1/2011. In C.C.No.1/2011, the accused filed application under Section 245 of Cr.P.C., for his discharge. The learned Sessions Judge vide order dated 30.08.2014, discharged the accused on the following grounds:
i) As on the date of the alleged offence, the alleged defamed person had not occupied the office of the President. Therefore, Section 199 Cr.P.C., does not apply;
ii) To attract Section 199 Cr.P.C., the offence alleged must have been in respect of the conduct of the person defamed in discharge of his public functions. But the alleged defamation was not in relation to the official function discharged by the said functionary; and
iii) The complaint was made beyond six months from the date of the offence alleged. Therefore, Section 199(5) Cr.P.C., barred the Sessions Court from taking cognizance.
6. In C.C.No.4456/2014, the accused filed application before the Trial Court seeking his discharge on the following two grounds:
i) On the same set of facts, he was tried C.C.No.1/2011 and discharged. Therefore, continuation of the proceedings against him in C.C.No.4456/2014 amounts to double jeopardy in terms of Section 300 of Cr.P.C.;
ii) The perusal of the charge sheet records do not show any grounds to proceed against him.
7. The said application was opposed by the prosecution. The Trial Court by the order dated 04.02.2015, rejected the said application on the following grounds:
i) The discharge of the accused in C.C.No.1/2011 was not an acquittal as contemplated under Section 300 Cr.P.C. Therefore, principle of double jeopardy does not apply;
ii) The statements of the witnesses and the documents in the charge sheet show that there are grounds to proceed against the accused.
8. The accused challenged the said order before the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore in Crl.R.P.No.9/2015. The Sessions Court by the impugned order reversed the order of the Trial Court, allowed the a
