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2023 Supreme(Kar) 317
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.NAGAPRASANNA, J.
D.K. Shivakumar, S/o D.K. Kempegowda – Appellant
Versus
State Of Karnataka – Respondent
Criminal Petition No.3432 of 2023
Decided on : 07-07-2023
Advocate Appeared:
For the Appellant :SRI. ARNAV A. BAGALWADI, ADVOCATE
For the Respondent: SRI. MAHESH SHETTY, HCGP
Point of Law: Section 60 of Act deals with cognizance for offences.
Headnote:
Disaster Management Act, 2005 - Section 51, (b), 60, (2) - Indian Penal Code, 1860 - Section 188 - Disaster Management (notice of alleged offence) Rules, 2007 - Rule 3 - Increase of property tax - Cognizance for offences - Petitioner is before this Court calling in question an order by which concerned Court takes cognizance of offences pursuant to PCR. And registers a C.C. for offences – Mandate under Act or Rules is not followed by complainant and it is not even noticed by learned Magistrate prior to taking of cognizance. [Para 10]
Finding of the Court: Incident takes place on 04.01.2021, around 10.30 a.m. and crime is registered on 04.01.2021 for offence punishable under Section 51(b) of Act and Section 188 of IPC - Learned Magistrate takes cognizance of offence on 25.01.2022 - Learned Magistrate prior to taking cognizance ought to have noticed rigor of Section 60(b) as to whether a notice has been issued to accused in terms of Rule 3 of said Rules (supra) - Ostensibly, mandate under Act or Rules is not followed by complainant and it is not even noticed by learned Magistrate prior to taking of cognizance - It is therefore, contrary to law - In light of it being contrary to law, is resultantly rendered unsustainable - Unsustainability of it, would lead to its obliteration - Order passed in C.C. on file of 42nd Additional Chief Metropolitan Magistrate stands quashed qua petitioner.
Result: Criminal petition is allowed.
ORDER :
The petitioner is before this Court calling in question an order dated 25.01.2021 by which the concerned Court takes cognizance of the offences pursuant to PCR.No.1453/2021 and registers a C.C.No.3169/2022 for offences punishable under Section 51(b) of the Disaster Management Act, 2005 ('Act' for short) and Section 188 of the Indian Penal Code, 1860 ('IPC' for short).
2. Heard Sri. Arnav A. Bagalwadi, learned counsel appearing for the petitioner and Sri. Mahesh Shetty, learned HCGP appearing for respondents No.1 and 2.
3. The brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:
The petitioner along with others are said to have taken out a protest with about 350 people against the BBMP regarding increase of property tax. The allegation is, it was taken, despite the guidelines of Covid-19 existing at that point in time. The crime comes to be registered on 04.01.2022 on the said allegation. The learned Magistrate by his order dated 25.01.2022, takes cognizance of the offence and registers a C.C.No.25317/2022 and issue summons to the accused. The petitioner is accused No.1. The taking of cognizance is what drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend that there has been violation of Section 60 of the Act, inasmuch as no notice as is required under Section 60(2) has been issued to the petitioner, prior to taking of the cognizance of the offence under Section 51(b) of the Act. He would submit that Section 188 of the IPC is an offshoot of Section 51 of the Act and therefore, proceedings should be quashed.
5. The learned High Court Government Pleader on the other hand would seek to refute the submissions to contend that the charge sheet has already been filed and therefore, the further proceedings must be permitted to be continued, as the petitioners are guilty of violating the Act.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material available on record.
7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass, as to whether the learned Magistrate could have taken cognizance of the offence under Section 51(b) of the Act. To consider the said issue, it is germane to notice certain provisions of the Act. Section 51 of the Act deals with punishment for obstruction and reads as follows:
"51. Punishment for obstruction, etc.—(1) Whoever, without reasonable cause— —(1) Whoever, without reasonable cause—"
(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences.
(Emphasis supplied)
Section 51(b) of the Act directs that whoever would refuse to comply with any direction given by or on behalf of the Government, a
