Judgment:
- 1 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE3D DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION No.8688 OF2023BETWEEN: SHAMANURU SHIVASHANKARAPPA S/O LATE SHAMANURU KALLAPPA AGED ABOUT92YEARS R/AT No.2633/1, MCC ‘B’ BLOCK DAVANAGERE - 577 002. …PETITIONER (BY SRI S.G.RAJENDRA REDDY, ADVOCATE) AND:
1. STATE BY AZAD NAGAR POLICE DAVANAGERE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001.
2. MEGHARAJ.
B. L., S/O. LOCESHWARAPPA. B, MEMBER OF FLYING SQUAD TEAM, AZAD NAGARA POLICE LIMIT, ASSISTANT LECTURER, SRI. MANJUNATHASWAMY FIRST GRADE COLLEGE, SARASWATHINAGARA, DAVANAGERE – 577 001. …RESPONDENTS (BY SRI.B.N.JAGADEESHA, ADDL.SPP A/W SMT.K.P.YASHODHA., HCGP FOR RESPONDENTS) - 2 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.2340/2023 PENDING ON THE FILE OF IV ADDITIONAL CIVIL JUDGE AND J.M.F.C., DAVANAGERE FOR THE OFFENCE P/U/S3OF THE KARNATAKA OPEN PLACES (PREVENTION OF DISFIGUREMENT) ACT IN RESPECT OF THE PETITIONER. THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.2340 of 2023 pending before the IV Additional Civil Judge and JMFC, Davanagere arising out of crime in Crime No.33 of 2023 registered for offences punishable under Section 3 of the of Karnataka Open Places (Prevention of Disfigurement) Act, 1951 & 1981 (‘the Act’ for short).
2. Heard Sri S.G. Rajendra Reddy, learned counsel appearing for the petitioner and Sri B.N. Jagadeesha, learned Additional State Public Prosecutor for respondent No.1.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:- - 3 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 The 2nd respondent is the complainant, a member of Flying Squad Team for Azadnagar area Police Station limits of Davanagere during the general elections to the Karnataka Legislative Assembly which was slated to be held on 10th May 2023. It is alleged that on 28.04.2023 the complainant received a phone call from the District Election Office informing him that near VRL Transport office one person had affixed congress party’s sticker on the front glass of his auto and directed action to be taken against him. It is after receipt of the said call, the 2nd respondent along with other members are said to have rushed to the spot and found the autorickshaw with a sticker of congress party affixed on the front and back of the auto. On enquiry with the driver of the auto, it is said that the driver did not know whether permission had been secured from the Election Commission to affix the sticker on his auto and this led to registration of a complaint which becomes a crime in Crime No.33 of 2023. The Police on investigation, file a charge sheet on 06.05.2023 within a week after registration of the complaint for offence punishable under the Act for alleged violation of Section 3. It is the registration of the aforesaid criminal case, - 4 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 is what has driven the petitioner to this Court in the subject petition. The petitioner is accused No.1.
4. The learned counsel appearing for the petitioner Sri S.G. Rajendra Reddy would vehemently contend that affixing of a sticker on an auto would not amount to an offence under the Act as it is not an open place that would result in disfigurement by affixing of a sticker. Even otherwise how the petitioner would be responsible for such an act cannot even be imagined as sticker of a particular party is affixed on the autorickshaw and the petitioner is charge sheeted. It is an abuse of the process of law if further proceedings are permitted to continue is his submission. He would seek quashment of entire proceedings.
5. The learned Additional State Public Prosecutor would though seek to refute the submissions would admit that affixing sticker on an auto would not amount to an offence under the Act.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.-. 5 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 7. The afore-narrated facts are not in dispute. What leads the petitioner into the web of crime as accused No.1 is the act of accused No.2, driver of an auto who had affixed the sticker of congress party on the front and back of the auto. The Flying squad conducts a search on the auto, finds the sticker both on the front and rear of the auto. It is a sticker on the auto. This leads to registration of crime in Crime No.33 of 2023 and within a week charge sheet is filed by the jurisdictional Police against the petitioner. The offence alleged in the charge sheet is one punishable under Section 3 of the Act. Since the entire issue triggered from the complaint, I deem it appropriate to notice the complaint as registered. It reads as follows:- “EªÀjUÉ ¢£ÁAPÀ :
29. 4-2023 ¥Éưøï E£ïì¥ÉPÀÖgï CeÁzï£ÀUÀgÀ ¥Éưøï oÁuÉ, zÁªÀtUÉgÉ. ¬ÄAzÀ, ªÉÄÃWÀgÁd ©.Dgï. vÀAzÉ ¯ÉÆÃPÉñÀégÀ¥Àà ©. 41 ªÀµÀð, DeÁzï£ÀUÀgÀ ªÁå¦ÛAiÀÄ°è ¥ÉèìÄAUï ¸ÁÌ÷éqï nêÀiï ¸ÀºÁAiÀÄPÀ ¥ÁæzsÀå¥ÀPÀgÀÄ, ²æà ªÀÄAdÄ£ÁxÀ¸Áé«Ä, ¥ÀæxÀªÀÄ zÀeÉð PÁ¯ÉÃdÄ, ¸ÀgÀ¸Àéw£ÀUÀgÀ, zÁªÀtUÉgÉ. Mobile:
96633. 1369.-. 6 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 ªÀiÁ£ÀågÉ, «µÀAiÀÄ: KA-17D4225£Éà DmÉÆÃzÀ ªÀÄÄA¨ÁsUÀzÀ°è gÁdQÃAiÀÄ ¥ÀPÀëzÀ ¹àPÀgï£ÀÄß CAn¹zÀªÀgÀ «gÀÄzÀÞ zÀÆgÀÄ. ¢£ÁAPÀ:
10. 05.2023 gÀAzÀÄ PÀ£ÁðlPÀ gÁdå «zÁs£À ¸À¨És ZÀÄ£ÁªÀuÉ EgÀĪÀ ¥ÀæAiÀÄÄPÀÛ ªÀiÁ£Àå f¯Áè¢üPÁjUÀ¼ÀÄ ªÀÄvÀÄÛ f¯Áè ZÀÄ£ÁªÀuÉ C¢üPÁjUÀ¼ÀÄ zÁªÀtUÉgÉgÀªÀgÀÄ zÁªÀtUÉgÉ zÀQët «zsÁ£À¸À¨És PÉëÃvÀæzÀ (107) CeÁzï£ÀUÀgÀ ¥Éưøï oÁuÁ ªÁå¦ÛAiÀÄ°è Flying Squad UÉ £À£ÀߣÀÄß £ÉêÀÄPÀªÀiÁrzÀÄÝ CzÀgÀAvÉ £Á£ÀÄ ¢£ÁAPÀ 28.04.2023 gÀAzÀÄ zÁªÀtUÉgÉ zÀQët «zÁs£À¸À¨És PÉëÃvÀæzÀ (107) DeÁzï£ÀUÀgÀ ªÁå¦ÛAiÀÄ°è Flying Squad nêÀiï£À°è DeÁzï£ÀUÀgÀ ¥Éưøï oÁuÁ ¹§âA¢UÀ¼ÁzÀ £ÀgÉñï HC189 ¤AUÀ¥Àà PC564gÀªÀgÀ eÉÆvÉUÉ PÀvÀðªÀåzÀ°ègÀĪÁUÀ ªÀÄzÁsåºÀß 01.36 UÀAmÉUÉ ¸ÀĪÀiÁjUÉ f¯Áè ZÀÄ£ÁªÀuÉ C¢üPÁjUÀ¼À PÀbÉÃj¬ÄAzÀ £À£ÀUÉ ¥ÉÆÃ£ï ªÀiÁr V.R.L. Transport PÀbÉÃj gÀ¸ÉÛAiÀÄ°è AiÀiÁgÉÆà M§â ªÀåQÛ vÀ£Àß DmÉÆÃzÀ ªÀÄÄA¨ÁsUÀzÀ ªÀÄvÀÄÛ »A¨sÁUÀzÀ°è gÁdQÃAiÀÄ ¥ÀPÀëzÀ ¹àPÀgï£ÀÄß CAn¹PÉÆArzÀÄÝ, ¤ÃªÀÅ ¸ÀzÀj ¸ÀܼÀPÉÌ ºÉÆÃV PÀæªÀÄPÉÊUÉƽî CAvÀ ¸ÀÆa¹zÀ ªÉÄÃgÉUÉ £À£Àß Flying Squad Team £ÉÆA¢UÉ PÀÆqÀ¯Éà ªÀÄzsÁåºÀß 01.45 UÀAmÉ ¸ÀĪÀiÁjUÉ ªÀiÁ»w §AzÀ ¸ÀܼÀPÉÌ ºÉÆÃV ¥Àj²Ã®£É ªÀiÁqÀ¯ÁV, V.R.L. Transport PÀbÉÃjAiÀÄ ªÀÄÄA¨ÁsUÀzÀ gÀ¸ÉÛAiÀÄ°è KA-17-D- 4225 £Éà £ÀA§j£À DmÉÆà ¤AwzÀÄÝ, ¸ÀzÀj DmÉÆÃzÀ »A¨ÁsUÀ ªÄÀvÀÄÛ ªÀÄÄA¨sÁUÀzÀ°è PÁAUÉæÃ¸ï ¥ÀPÀëzÀ ¹ÖPÀgÀÄßöCAn¹zÀÄÝ, C°èAiÉÄà EzÀÝ DmÉÆÃzÀ ZÁ®PÀ£À ºÉ¸ÀgÀÄ, «¼Á¸À PÉüÀ¯ÁV ¸ÀzÀjAiÀĪÀ£ÀÄ ¸ÉÊAiÀiÁzï ªÀÄPÀÆìzï CºÀäzï vÀAzÉ ¨ÁsµÀ¸Á¨ï, 65 ªÀµÀð, ªÁ¸À 2nd Main, 4th Cross, UÁA¢ü£ÀUÀgÀ, zÁªÀtUÉgÉ CAvÀ w½¹zÀÄÝ. ¸ÀzÀjAiÀĪÀ¤UÉ ZÀÄ£ÀªÀuÁ DAiÉÆÃUÀ¢AzÀ ¹ÖPÀgï CAn¹zÄÀÝ C£ÀĪÀÄw ¥ÀqÉ¢zÀÝgÀ §UÉÎ PÉüÀ¯ÁV, AiÀiÁªÀÅzÉà C£ÀĪÀÄw ¥ÀqÉ¢gÀĪÀÅ¢®èªÉAvÀ ºÁUÀÆ ¹ÖPÀgï CAn¹zÀ §UÉÎ £À£ÀUÉ AiÀiÁªÀÅzÉà ªÀiÁ»w EgÀĪÀÅ¢®è CAvÀ w½¹gÀÄvÁÛgÉ. £ÀAvÀgÀ zÁªÀtUÉgÉ zÀQëtAiÀĪÀgÀÄ Cvigil App £À°è §AzÀ HgÀ£ÀÄß 100 ¤«ÄµÀzÀ M¼ÀUÉ ¥ÀjºÀj¸À¨ÉÃPÉAzÀÄ w½¹zÀ PÀÆqÀ¯Éà ¸ÀzÀj DmÉÆÃzÀ »A¨ÁsUÀ ªÀÄvÀÄÛ »A¨sÁUÀzÀ ªÉÄð£À PÁAUÉæÃ¸ï ¥ÀPÀëzÀ ¹ÖPÀgï£ÀÄß vÉUÉzÀÄ ºÁPÀ¯Á¬ÄvÀÄ. £ÀAvÀgÀ £Á£ÀÄ zÁªÀtUÉgÉ zÀQët «zsÁ£À ¸À¨Ás PÉëÃvÀæzÀ ZÀÄ£ÁªÀuÁ C¢üPÁjUÀ½UÉ ¨ÉsÃn ªÀiÁr, ¸ÀzÀjAiÀĪÀgÀ ªÀiËTPÀ DzÉñÀzÀ ªÉÄÃgÉUÉ £Á£ÀÄ F ¢£À vÀqÀªÁV CeÁzï£ÀUÀgÀ ¥Éưøï oÁuÉUÉ §AzÀÄ KA-17-D-4225 £Éà DmÉÆÃzÀ ªÀÄÄA¨ÁsUÀzÀ°è gÁdQÃAiÀÄ ¥ÀPÀëzÀ ¹ÖPÀgï£ÀÄß CAn¹zÀªÀgÀ «gÀÄzÀÞ PÀæªÀÄ PÉÊUÉƼÀî¨ÉÃPÉAzÀÄ zÀÆgÀÄ ¤ÃrgÀÄvÉÛãÉ. vÀªÀÄä «±Áé¹, ¸À»: Megharaja.B” The Police after investigation file a charge sheet. The charge sheet is filed within one week from the date of occurrence of the offence, just before the conduct of election on 10.05.2023.-. 7 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 The charge sheet is filed on 06.05.2023. The summary of the charge sheet, as obtaining in column No.17, reads as follows: “17. PÉù£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ PÁ®A £ÀA§gï 12gÀ°è PÀAqÀ J-02 – ¸ÉÊAiÀiÁzï ªÀÄPÀÆìzï CºÀäzï DgÉÆævÀ£ÀÄ ¢£ÁAPÀ 28.04.2023 gÀAzÀÄ ªÀÄzÁåºÀß 01.45 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è zÁªÀtUÉgÉ £ÀUÀgÀzÀ DeÁzï £ÀUÀgÀ ¥Éưøï oÁuÁ ªÁå¦ÛAiÀÄ PÉ.Dgï gÀ¸ÉÛAiÀÄ §A§Æ §eÁgï £À «.Dgï.J¯ï mÁæ£ïì ¥ÉÆÃmïð PÀbÉÃjAiÀÄ ªÀÄÄA¨sÁUÀzÀ gÀ¸ÉÛAiÀÄ°è ZÀÄ£ÁªÀuÁ DAiÉÆÃUÀzÀ AiÀiÁªÀÅzÉà C£ÀĪÀÄw ¥ÀqÉAiÀÄzÉà PÉ.J.-17 r 4225 £Éà DmÉÆÃzÀ »A¨sÁUÀ ªÀÄvÀÄÛ ªÀÄÄA¨sÁUÀ UÁè¸ï£À°è zÁªÀtUÉgÉ zÀQët «zsÁ£À ¸À¨sÉ PÉëÃvÀæzÀ (107) PÁAUÉæøï C¨sÀåyðAiÀiÁzÀ J-01 ±ÁªÀÄ£ÀÆgÀÄ ²ªÀ±ÀAPÀgÀ¥Àà DgÉÆævÀ£À ¥ÉÆÃmÉÆà EgÀĪÀ ¹ÖPÀgï£ÀÄß CAn¹PÉÆArgÀĪÀÅzÀÄ vÀ¤SɬÄAzÀ DgÉÆÃ¥À zsÀÈqsÀ¥ÀlÖ ªÉÄÃgÉUÉ J-01 ªÀÄvÀÄÛ J- 02 DgÉÆævÀgÀ «gÀÄzÀÞ PÀ®A : KARNATAKA OPEN PLACE DISFIGUREMENT ACT1951& 1981 (U/s –
3) jÃvÀå zÉÆõÁgÉÆÃ¥ÀuÉ ¥ÀnÖAiÀÄ£ÀÄß WÀ£À £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹zÉ.”À (Emphasis added)
If a perusal at the complaint and the summary of the charge sheet is had, what would unmistakably emerge is gross misuse and abuse of the process of law by the prosecution. What is dubbed to be disfigurement of an open place is a sticker on the auto. Merely because the sticker contained the photograph of the petitioner on the front and rear of the autorickshaw, it is held to be an offence punishable under the Act. Therefore, it becomes necessary to notice the Act. The Karnataka Open Places (Prevention of Disfigurement) Act was - 8 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 promulgated for a particular reason. The objects and reasons are as follows: “Act 35 of 1982.- Public and private buildings and other open places disfigured by slogans written and posters pasted indiscriminately on their walls are a common spectacle in the cities and towns of the State. Indulgence in these activities apart from spoiling the beauty of the buildings and other space obliges the owners to incur avoidable expenditure to undo the mischief. As these activities have been on the increase it has become necessary to prevent them immediately. The existing provisions under the Karnataka Police Act, 1963 and the municipal laws are not found to be sufficient to check this menace effectively. In these circumstances it is intended to have a separate stringent law which provides inter alia for deterrent punishment and for making the offences cognizable.” (Emphasis supplied) The Act was promulgated in order to protect public and private buildings and other open places disfigured by slogans written and posters pasted indiscriminately on their walls which had become a common spectacle in the cities and towns of the State. To undo such mischief the Act was promulgated. Section 3 of the Act deals with penalty for unauthorized advertisement by disfigurement. It reads as follows: “3. Penalty for unauthorised disfigurement by advertisement.- Whoever by himself or through another person affixes to, or erects, inscribes or - 9 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 exhibits on, any place open to pubic view any advertisement without the written permission of the local authority having jurisdiction over such area, shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both: Provided that nothing in this section shall apply to any advertisement which,- (i) is exhibited within the window of any building if the advertisement relates to the trade, profession or business carried on in that building; or (ii) relates to the trade, profession or business carried on within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or to any sale, entertainment or meeting to be held on or upon or in the same; or (iii) relates to the name of the land or building, upon or over which the advertisement is exhibited, or to name of the owner or occupier of such land or building ; or (iv) relates to the business of a railway administration and is exhibited within any railway station or upon any wall or other property of a railway administration. (v) is affixed to or exhibited on any ancient and historical monument declared to be of national importance under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Central Act XXIV of 1958).” (Emphasis supplied) Section 3 makes the accused if he affixes by himself or through another person, erects, inscribes or exhibits in place of public - 10 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 view any advertisement without the permission of the local authority would become open for punishment. Section 2 reads as follows: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) “advertisement” means any printed, cyclostyled, typed or written, notice, document, paper or any other thing containing any letter, word, picture sign or visible representation; (b) “place open to public view” includes any private place or building monument, statue, post, wall, fence, tree or contrivance visible to a person being in, or passing along, any public place; (c) “public place” means any place (including a road, street or way, whether a thoroughfare or not and a landing place) to which the public are granted access or have a right to resort or over which they have a right to pass.” Section 2(b) deals with ‘place open to public view’ and includes any private place or building monument, statute, post, wall, fence, tree or passing along any public place. ‘Public place’ is defined under Section 2(c). ‘Advertisement’ is defined under Section 2(a). It is ununderstandable as to how a sticker affixed on a private auto at its front and back would attract the offence under the Act. If the objects and reasons are read in tandem with the provisions of the Act, no public or private building in the open place is disfigured by indiscriminately pasting the - 11 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 poster. The sticker is on the autorickshaw. The autorickshaw cannot be declared to be an open place either public or private building. Therefore, the proceedings are instituted with a mala fide intention right from the word go and crime is registered on 29.04.2023. Charge sheet is filed on 06.05.2023 within one week from registration of the crime. The aforesaid action and the timing would lead to an unmistakable conclusion that the action of the prosecution is on the face of it mala fide and if it is so, permitting further proceedings would amount to an abuse of the process of law as is held by the Apex Court in the case of STATE OF HARYANA v. BHAJANLAL1, wherein the Apex Court lays down postulates for interference at any stage in the proceedings. The postulates laid down are as follows: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1 1992 Supp(1) SCC335- 12 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” - 13 - NC:
2023. KHC:39272 CRL.P No.8688 of 2023 8. In the light of the facts obtaining in the case at hand and the judgment of the Apex Court in the case of BHAJANLAL, permitting any further proceedings would lead to patent injustice and become a gross abuse of the process of law.
9. For the aforesaid reasons, I pass the following: ORDER
(i) Criminal petition is allowed. (ii) Proceedings in C.C.No.2340 of 2023 pending on the file of the IV Additional Civil Judge & JMFC, Davangere arising out of crime No.33 of 2023 stand quashed qua the petitioner. (iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora. Sd/- JUDGE NVJ/List No.:
1. Sl No.:
3.