Basavraj S. Bommai vs State of Karnataka

Rathnakala, J.—Though the matter is listed for admission, is heard on its merits and taken up for final hearing.

This revision petition is filed under Section 397 r/w Section 401 of IPC against the order passed by the learned Civil Judge and JMFC, Savanur, in CC No. 147/2013 in rejecting the application filed by the petitioner herein under Section 258 of Cr.P.C.

The facts succinctly stated, this petitioner along with accused Nos. 5 to 6 is charge sheeted for the offences punishable under Section 171(E), 171(F), 171(H), 171(E), 341, r/w 34 of IPC. The petitioner is arrayed as first accused. The allegations in the charge sheet is the accused Nos. 2 to 6 were found distributing money to the voters and influencing them to cast vote to the candidate of BJP party to which they belonged and they were in possession of pamphlets pertaining to the candidate and also the voters list.

The petitioner being the first accused had challenged the very order of the learned Magistrate in taking cognizance and issued process to him before this Court in Crl.P. No. 11116/2013 and the petition was disposed of without prejudice to his case. Thereafter, the petitioner filed an application before the learned Magistrate under Section 258 of Cr.P.C to stop further proceedings. The learned Magistrate dismissed the application, it is assailed in the present revision petition

The learned counsel for the petitioner submits that from the entire charge sheet materials, the presence of the accused at the alleged place and time of crime is not made out. The charge sheet does not assign any role for him. As per the case of the prosecution itself, only five persons were indulged in bribing the voters, distributing the money, by showing the BJP candidate''s pamphlets. But, six persons including this petitioner is chargesheeted. He has not committed any offence as alleged. Even it is assumed that the accused Nos. 2 to 6 were indulging in the offence as alleged, no liability for the same can be fastened against the petitioner. Hence, no offences under Sections 171E, 171F and 171H can be made out from the charge sheet papers. As regards to the offence under 341 of IPC is concerned, there is no specific allegation against him for the commission of wrongful restrain. Under the circumstances, the entire proceedings against him is liable to shall be stopped.

The learned counsel further submits that in fact from the order of the Magistrate, revision lies usually in the normal course to the District and Sessions Court. But, in the case on hand, the learned Magistrate dismissed the application by extracting few sentences from the order passed by this Court, in Crl. P.11116/2013. The petitioner apprehends that the Sessions Court may follow the suit by misreading the order passed by this Court in Crl. P. No. 11116/2013. The revision jurisdiction under Section 397 of Cr.P.C. is concurrent with both the High Court and the District Court. Hence, he prays to allow the petition.

The learned HCGP in reply submits that as of now, there is sufficient evidence on record that the accused Nos. 2 to 6 were engaged in restraining the voters, distributing the money to influence them to cast vote in favour of the first accused. They were found holding pamphlets of the first accused and exhibiting the same to the public. This Court has negatived the contention taken by this petitioner in Crl.P.11116/2013 and observed such contention could at the best be defence that could be raised during the trial. When the learned Magistrate has expressed his satisfaction about the availability of material to proceed with the case, the petitioner has to face the trial and raise all his contentions as his defence at the appropriate stage. Without exhausting his remedy before the Sessions Court, he has directly approached this Court which is not permissible. Hence, the petition deserves to be rejected.

The learned Magistrate in the body of his order while rejecting the application filed under Section 258 of Cr.P.C. reiterated the observation as follows:--

"On perusal of the materials on record, it is prima-facially discloses the role of the accused No. 1. The Hon''ble High Court of Karnataka Dharwad Bench, in Criminal Petition No. 11116/2013 has observed in paragraph No. 3 that "No political party would distribute money without identifying the person and it is quite possible that such distribution was taking place after the persons were duly identified as being voters of the particular constituency at the instance of political party workers concerned". Hence, it is appears to me the contention taken by the accused No. 1 in the application has to be determined at full fledged of trial and not at this stage." 9. It is clear that the learned Judge either did not consider as to what is the incriminating material available on record as against the petitioner herein or he was under the impression that the act of one binds act of all. Thereby the first accused is liable to the prosecuted for the materials against the co-accused. He has quoted the lines from the judgement of this Court, but it is a general observation and had no relevance to the contention raised by the petitioner. Admittedly, the petitioner was not present on the alleged date, time and place of offence. No other materials except statements of the official witnesses and the Panch witnesses (in the present of whom the pamphlets, money were seized) to link the petitioners to the alleged offence. In a case reported in Hira Lal Hari Lal Bhagwati Vs. C.B.I., New Delhi, , the Apex Court held that there is no concept of vicarious liability unless the statue itself presumes so. In all probability, the learned Magistrate is carried away by the order passed by this Court in CC No. 11116/2013. It is apparent he has lost sight of the observation made by this Court in the same order that this Court had left open the question raised in respect of the allegation under Section 341 of C.P.C. to be urged before the trial Court as ground for discharge and the petition was not dismissed but disposed without prejudices to his case.

The impugned order passed is shallow, without application of mind, without having regard to the facts urged by the petitioner. Hence, the impugned order deserves to be intervened.

Accordingly, the petition is allowed. The order passed by the learned Magistrate on 8/12/2014 in dismissing the application filed against accused No. 1 under Section 258 of Cr.P.C. is hereby set aside. Matter is remanded to the concerned Court with a direction to dispose of the application afresh after hearing both the parties in the light of the observation made above.