Tipu Jayanti Tweets : Karnataka High Court Directs Magistrate To Decide Afresh Complaints Against Anant Kumar Hegde, CT Ravi

The Karnataka High Court has directed a Magistrate to consider afresh the criminal complaints against Union Minister Anant Kumar Hegde and BJP MLA CT Ravi over the statements made by them in the context of Tipu Jayanti celebrations in 2017.

A single bench of Justice John Michael Cunha set aside the order passed by an Additioanl Chief Metropolitan Magsitrate, Bengaluru, which had dismissed the complaints citing lack of sanction under Section 196 of the Code of Criminal Procedure.

The High Court observed that sanction was not required while considering a petition under Section 156(3) of the CrPC seeking registration of FIR.

Justice John Michael Cunha, while allowing the petition filed by one A Alam Pasha, said : "The purport of section 19(1) of Prevention of Corruption Act, cannot be imported into Chapter XII and Chapter XIV of Cr.P.C. while directing the investigation under section 156(3) Cr.P.C. There is a clear distinction between issuing a direction for investigation under section 156(3) Cr.P.C. in respect of the offences under Indian Penal Code (IPC) and a direction for investigation into the offences against a public servant under the provisions of the PC Act."

Case background:

The petitioner challenged the order dated 04.11.2017, passed by the X Addl. Chief Metropolitan Magistrate, Bangalore, dismissing the complaint filed by the petitioner under section 2(d) read with section 156(3) of Cr.P.C.

The complaint alleged that on October 22, 2017, "Sunday Times", an English Newspaper, carried a news item on the 1^st and 5th page, pertaining to the boycott of Tipu Jayanthi Celebrations, slated to be held on November 10, 2017 at Bangalore, by the State BJP leaders. The said news item contained details about Union Minister and Karwar MP Anant Kumar Hegde (accused No.1) writing to the Government Chief Secretary, asking him to drop his name from the official invitees to the function, saying he was boycotting it.

It was reported as:"On Friday, Hegde had tweeted: Conveyed # Karnataka Govt. NOT to invite me to shameful event of glorifying a person known as brutal killer, wretched fanatic & mass rapist.'"

On Page 5 of the newspaper, it was reported that: "Hegde said 'If the Government prints my name on the invitation card, I will attend the function and raise slogans from the dais against Tipu. If Siddaramaiah has the guts, let him stop me.'"

Further the same page of the newspaper contained a caption "Congress insulting Hindus by making Tipu Jayanthi: Ravi" The news item was to the following effect:- "BJP spokesperson and MLA C.T.Ravi tweeted: 'Communal Congress led by arrogant @ Siddaramaiah is repeatedly insulting Hindus by celebrating Tyrant Tipu Jayanthi despite severe opposition …. and thrive on anti-Hindu appeasement policies.'"

It was averred in the complaint that the above said publication was provocative, baseless, false and amounted to irresponsible imputations attracting the offences under sections 153-A, 153-B, 295-A and 505(2) of IPC, intended to promote enmity between two religions namely, Hindu and Muslim on the ground of religion and such acts being prejudicial to the maintenance of harmony, the complainant sought to refer the said complaint for investigation by the jurisdictional police under section 156(3) of Cr.P.C.

The Magistrate court rejected the complaint on the ground that, in view of the provisions under section 196(1) and (1-A) of Cr.P.C., there is a bar for taking cognizance of the offences punishable under sections 153-A, 295-A, 153-B and 505(2) of IPC without previous sanction from the Government.

Submission of the petitioner:

The bar under section 196(1) of Cr.P.C, would be applicable only at the stage of taking cognizance of the offences by the Court and not at the stage of reference under section 156(3) Cr.P.C. In the instant case trial Court has neither taken cognizance of the alleged offences nor did the complainant seek for cognizance of the alleged offences by the Magistrate.

The complainant had prayed for reference of the complaint for investigation under section 156(3) of Cr.P.C. and therefore, the bar contained under section 196(1) of Cr.P.C. did not apply to the facts of the case.

Further, it was contended that the trial Court has dismissed the complaint placing reliance on the decision of the Hon'ble Supreme Court in ANIL KUMAR vs. M.K.AIYAPPA (2013) 10 SCC 705. The ratio of the said decision cannot be made applicable to the prosecution of the accused for the offences under sections 153-A, 153-B, 295-A and 505(2).

Finally it was argued that "The impugned order was passed by learned Magistrate without even registering the complaint which disclosed a predetermined mind to dismiss the complaint without even going into the merits of the case."

Submission on behalf of Hegde:

It was emphasized that the allegations made in the complaint prima facie did not disclose the ingredients of the offences under sections 153-A, 295-A, 153-B and 505(2) of IPC and under the said circumstances, the Trial Court was justified in dismissing the complaint as the complainant failed to make out a case for issuance of direction to the Investigating Agency to investigate into the alleged offences.

Placing reliance on several judgment it was contended that an order directing investigation under 156(3) of the Code cannot be passed in the absence of a valid sanction and therefore, the impugned order does not suffer from any error or illegality warranting interference by this Court under section 482 Cr.P.C.

Court findings:

Firstly, the court said "Trial Judge without registering the case, heard learned counsel for complainant and pronounced the impugned order on 4.11.2017, dismissing the complaint, without even considering the merits of the case, which indicate that the impugned order is passed with a predisposition to dismiss the complaint, without proper regard to the merits of the case."

Secondly the court observed that "The sole ground on which the Trial Court has dismissed the complaint is that the previous sanction of the Central Government or State Government, as the case may be, is necessary to take cognizance of the offences under sections 153-A, 295-A, 153-B and 505(2) of IPC, in view of the mandate contained in section 196(1) and (1-A) of Cr.P.C. unmindful of the fact that Section 196(1) and (1-A) of Cr.P.C. bars the Court from taking cognizance of the offence and not from directing investigation under section 156(3) of Cr.P.C."

Further, the court said that "A reading of the impugned order clearly indicates that the learned Magistrate has not applied his mind to the facts and circumstances of the case and merely by referring to the provisions of law quoted in the complaint, has proceeded to hold that, in view of bar contained under section 196(1) and (1-A) of Cr.P.C, the previous sanction of the Government is necessary for referring the complaint for investigation."

Justice Cunha then opined that the trial court had misread the decisions in RAMDEV FOOD PRODUCTS PVT. LTD., vs. STATE OF GUJARAT, (2015) 6 SCC 439 and ANIL KUMAR vs. M.K.AIYAPPA, (2013) 10 SCC 705. It said "These decisions were rendered in the context of section 19 of the Prevention of Corruption Act. No ratio is laid down in the said decisions to the effect that even at the stage of referring the complaint for investigation under section 156(3) of Cr.P.C."

It also went on to say that "A reading of the impugned order clearly indicates that the learned Magistrate has not applied his mind to the facts and circumstances of the case and merely by referring to the provisions of law quoted in the complaint, has proceeded to hold that, in view of bar contained under section 196(1) and (1-A) of Cr.P.C.,the previous sanction of the Government is necessary for referring the complaint for investigation."

Accordingly, the court expressed "In the instant case, there are no allegations attracting the offences under the Prevention of Corruption Act. Therefore, the question of obtaining the sanction at the stage of referring the complaint for investigation under section 156(3) of Cr.P.C, does not arise at all."

It added "There is a clear distinction between issuing a direction for investigation under section 156(3) Cr.P.C. in respect of the offences under IPC and a direction for investigation into the offences against a public servant under the provisions of the PC Act."

It concluded by saying "As the learned Magistrate has failed to apply his mind to the facts of the case and has passed the impugned order by misconstruing the scope of section 196(1) and (1-A) of the Code, the matter is remitted 19 to the jurisdictional Court to consider the complaint afresh in accordance with law."

 Case Title: A. ALAM PASHA And ANANT KUMAR HEGDE

Case No: CRIMINAL PETITION NO.8733 OF 2017

Date of Order: 10TH DAY OF FEBRUARY 2021

Coram: Justice JOHN MICHAEL CUNHA

Appearance: Advocate A.P. MOHANTHY for petitioner.

Advocate SANTHOSH S NAGARALE for R 2:

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