Karnataka High Court: H P Sandesh J. allowed the petition and quashed the proceedings initiated against the petitioners.
This petition is filed under Section 482 of Criminal Procedure Code i.e. 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 Penal Code, 1860 i.e. IPC and Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981.
Counsel for the petitioner Mr. Rajesh G Doddamani submitted that the 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. It was also submitted 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 taken. Therefore, when non-cognizable offence is invoked, it requires permission from the Magistrate under Section 155(2) of Cr.P.C., and hence, it requires interference of this Court.
Counsel for respondents Mr. Gururaj V Hasilkar submitted 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.Issue: Whether Karnataka Open Places (Prevention of Disfigurement) Act, 1991 is applicable to Muddebihal or not?
The Court observed that on perusal of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore, Mysore, Hubli-Dharwar, Mangalore and Belgaum constituted or continued under the Karnataka Municipal Corporation Act, 1976 or under any other law, on the fifth day of May, 1981 and Section (1)(2)(ii) of the Act says that the same come into force in the municipalities, notified areas, sanitary boards, constituted or continued under the Karnataka Municipalities Act, 1964 or under any other law, or in any other local area, on such date, as the State Government may by notification appoint and different dates may be appointed in respect of different areas.
But, no such Notification was issued in respect of Muddebihal. Hence, unless the Act is applicable to particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law.
The Court further observed that Section 171H of IPC deals with illegal payments in connection with an election. But, in the case on hand, the allegation against the petitioners is that they came in vehicles with flag of political party and no allegations with regard to illegal payments in connection with election are found in the complaint. Under the circumstances, very initiation of proceedings against the petitioners is nothing but an abuse of process of law. Hence, it is appropriate to exercise power under Section 482 of Cr.P.C., or otherwise it leads to miscarriage of justice.
The Court having considered the allegation made in the complaint as well as in the charge sheet observed that it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification. “….complaint averments and charge sheet averments do not attract the offences invoked and apart from that, the above Act is not applicable to Muddebihal and without any notification for application of the Act, proceedings have been initiated.”
The Court held “….very initiation of proceedings against the petitioners is not sustainable in the eye of law, as there was no notification for applicability of the above Act to Muddebihal and also no ingredients of offence under Section 171H of IPC.”
[Hanmagouda v. State of Karnataka, Criminal petition No. 200377 of 2019, decided on 26-11-2021]