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2021 Supreme(Kar) 400
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
H.P.SANDESH, J.
HANMAGOUDA S/O GANGAPPA MANKANI - PETITIONERS
Vs.
STATE OF KARNATAKA THROUGH MUDDEBIHAL POLICE STATION NOW REPRESENTED BY THE ADDL. SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH - RESPONDENT
CRIMINAL PETITION No.200377/2019
Decided on : 26-11-2021
For the Appellant : SRI RAJESH G. DODDAMANI
For the Respondent: SRI GURURAJ V. HASILKAR, HCGP)
Point of law : If any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate
Headnote:
Karnataka Open Places (Prevention of Disfigurement) Act, 1981 – Section 3- Indian Panel Code, 1860 - Section 171H - Criminal Procedure Code,1973 - Section 482, 195 and 155(2) – Bribery – Illegal payments in connection with an election.— Election duty - Case is that complaint is lodged by one stating that he was deputed for election duty on eve of assembly elections - He was performing flying squad duty in Assembly constituency along with other officials by forming six teams on - It is also alleged that a candidate belonging to Indian National Congress had come to office for filing nomination papers and some vehicles had accompanied him to office displaying stickers containing symbol and flag of Indian National Congress - It is further alleged that he along with his team members inspected said vehicles and noticed that stickers displaying palm symbol of Indian National Congress was displayed on motorcycle and flags of Indian National Congress were tied to Bolero vehicle and Tata Ace vehicle - It is also alleged that same was done without any permission and they have violated Election Code of Conduct - Hence case has been registered police have investigated matter and filed charge sheet –
Finding of the court : It is clear that allegation made against petitioners is that without permission while filing nomination they came with flag stickers and photos displaying symbol of particular political party- No allegation of illegal payments in connection with election is made- Having considered allegation made in complaint as well as in charge sheet it does not attract offence under Section 171H of IPC and so also Section 3 of Act as there is no notification - First of all complaint averments and charge sheet averments do not attract offences invoked and apart from that above Act is not applicable to and without any notification for application of Act proceedings has been initiated - Contention of State that election was declared in terms of notification of Election Commission of India is not in dispute and election squad appointed is also not in dispute –
Result : Petition is Allowed
ORDER :
Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
2. This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the order of the Civil Judge and JMFC, Muddebihal, dated 13.07.2018 passed in C.C.No.167/2018 (Crime No.107/2018 of Muddebihal Police Station) taking cognizance against the petitioners for the offences punishable under Section 171H of IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 (for short ‘the Act’).
3. Factual matrix of the case is that the complaint is lodged by one Basavaraj stating that he was deputed for election duty on the eve of assembly elections during the year 2018. He was performing flying squad duty in Muddebihal Assembly constituency along with other officials by forming six teams on 20.04.2018. It is also alleged that a candidate belonging to Indian National Congress had come to Tahsildar office, Muddebihal, for filing nomination papers and some vehicles had accompanied him to Tahsildar’s office displaying stickers containing symbol and flag of Indian National Congress. It is further alleged that he along with his team members inspected the said vehicles and noticed that stickers displaying palm symbol of Indian National Congress was displayed on the motorcycle and flags of Indian National Congress were tied to Bolero vehicle and Tata Ace vehicle. It is also alleged that the same was done without any permission and they have violated the Election Code of Conduct. Hence, the case has been registered, the police have investigated the matter and filed charge sheet.
4. The learned counsel appearing for the petitioners would vehemently contend that first of all, Act invoked i.e., the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 is not applicable to Muddebihal and the said Act is applicable only in respect of particular places. Unless the same is notified in respect of particular place of Muddebihal, the police ought not to have initiated proceedings against the petitioners under Section 3 of the Act. The learned counsel also submits that the respondents have also invoked Section 171H of IPC. The complaint is not filed under Section 195 of Cr.P.C., but the case has been registered against the petitioners and based on the police report, cognizance was also taken. The learned counsel also would submit that when non-cognizable offence is invoked, it requires permission from the learned Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.
5. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that the election was declared in respect of Muddebihal assembly constituency in 2018. When the election notification was issued by the State, the order was passed by the District Election Officer and District Magistrate, Vijayapura dated 31.03.2018 appointing flying squads and the same includes Muddebihal Constituency. The learned counsel also relied upon the order of the State Government dated 10.04.2018 and so also the revised order dated 31.03.2018 appointing officers consisting of flying squads. The learned counsel also relied upon the Notification of Election Commission of India dated 02.05.2018 wherein it is clarified that as per Section 126(1)(b) of the Representative of People Act, 1951, there shall not be displaying of any stickers and flags of any particularly party and the said act is in violation of the same and there is no specific notification for applying the above Act but election notification is issued. It is not in dispute that the petitioners herein came to the Tahsildar’s office in vehicles displaying stickers and flags of a particular party. Hence, the proceedings initiated against the petitioners cannot be quashed.
6. Having heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the
