Section 171H IPC Can't Be Invoked For Merely Displaying Flags & Symbols Of Political Party On Vehicles: Karnataka High Court

Justice H P Sandesh sitting at the Kalaburagi bench, said,

"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."

As per the complaint filed by one Basvaraj, who was deputed for election duty, it was alleged that in Muddebihal Assembly constituency, a candidate belonging to the Indian National Congress had come to the Tahsildar office, for filing nomination papers, during the 2018 Assembly elections. Some vehicles had accompanied him displaying stickers containing the symbol and flag of the Indian National Congress.

The complainant along with his team inspected the said vehicles and noticed that stickers displaying the palm symbol of Indian National Congress were displayed on the motorcycle and flags of Indian National Congress were tied to Bolero vehicle and Tata Ace vehicle. Accordingly, the petitioners were said to have violated the Election Code of Conduct.

The respondents had invoked the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 and Section 171H of IPC.

Advocate Rajesh G Doddamani appearing for petitioner submitted that the aforesaid Act is not applicable to Muddebihal constituency and the said Act is applicable only in respect of particular places.

The petition was opposed by the prosecution, relying on notification issued by Election Commission of India dated 02.05.2018, wherein it was 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.

Findings:

The bench on going through the Karnataka Open Place (Prevention of Disfigurement Act), noted that the reading of Section 1(2)(i) of the Act makes it clear that the Act is applicable for the cities viz., Bangalore, Mysore, Hubli-Dharwad, 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.

Further, it said that 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.

It observed, "But no such Notification was issued in respect of Muddebihal. When such being the facts and circumstances of the case, unless the Act is applicable to a particular city and municipal area, the initiation of proceedings under the said Act is unsustainable under law."

As regards application of section 171H of IPC (Illegal payments in connection with an election) the court said, "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 the flag of a political party and no allegations with regard to illegal payments in connection with the election are found in the complaint."

Thus the court held, "Having considered the allegation made in the complaint as well as in the charge sheet, it does not attract offence under Section 171H of IPC and so also Section 3 of the Act as there is no notification."

Accordingly, it quashed the proceedings pending before the trial court.

Case Title: Hanmagouda v. State Of Karnataka

Case No: Criminal Petition No 200377/2019

Date of Order: November 26, 2021.

Appearance: Advocate Rajesh G Doddamani, for petitioner; Advocate Gururaj V Hasilkar, for respondent.

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