In the High Court of Karnataka Dharwad Bench

1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 17 th DAY OF SEPTEMBER, 2013 BEFORE THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No.77242 OF 2013 AND WRIT PETITION NOS.77249-77259 OF 2013 (GM-RES) BETWEEN: 1. Sri. Balachandra Prabhakar Kodlekare, Aged 27 years, Resident of Kotithirtha Kodlekar House, Gokarna, Kumta Taluk, Uttara Kannada District. 2. Sri. Gajanan Shamba Upadhyaya, Aged 43 years, Resident of Near Sanskrith School, Gokarna, Kumta Taluk, Uttara Kannada District. 3. Sri. Shivram Vinayak Adi, Aged 32 years, Resident of Ratha Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. 2 4. Sri. Vishwanath @ Vishu Paniraj Gopi Bhat, Aged 45 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District. 5. Sri. Raju @ Rajgopal Mahadev Adi, Aged 38 years, Resident of Ratha Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. 6. Sri. Manu Bhaskar Navada, Aged 24 years, Resident of Naga Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. 7. Sri. Neelakanth Vasudev Joglekar, Aged 21 years, Resident of Near Gokarna Temple, Gokarna, Kumta Taluk, Uttara Kannada District. 8. Sri. Niranjan Murthy @ Niranjan Gajanan Joshi, Aged 35 years, Resident of Ratha Beedhi, Opposite Hittal Ganapathi Temple, Gokarna, Kumta Taluk, 3 Uttara Kannada District. 9. Sri. Ganesh Vasudev Joglekar, Aged 45 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District. 10. Sri. Somanath Vasudev Joglekar, Aged 40 years, Resident of Near Mahabaleshwar Temple, Gokarna, Kumta Taluk, Uttara Kannada District. 11. Sri. Pani Raj Saka Ram Gopi Bhat, Aged 78 years, Resident of Sarashanakali Road, Gokarna, Kumta Taluk, Uttara Kannada District. 12. Sri. Krishna Maneshwar Jog Bhat, Aged 70 years, Resident of Naga Beedhi, Gokarna, Kumta Taluk, Uttara Kannada District. …PETITIONERS (By Shri H.Subramanya Jois, Senior Counsel for Shri V.G.Bhat, Advocate ) 4 AND: 1. The State of Karnataka, Represented by its Secretary, Home Department, (Internal Affairs, Police Service-B), Vidhana Soudha, Bangalore-560 001. 2. The Director of Prosecutions and Government Litigations Department, M.S. Building, Bangalore-1. 3. Sri. Ashok N. Naik, Major, Advocate and former Public Prosecutor, “Shanthinarayana”, Near Sundaranarayana Temple, Ankola, Uttara Kannada District. 4. The Chief Administrative Officer, Sri. Ramachandrapura Mutt, No.2A, J.P. Road, Girinagar 1 st Stage, Bangalore-560 085. 5. The Circle Inspector of Police, Gokarna Police Station, Gokarna, Kumta Taluk, Uttara Kannada District. …RESPONDENTS (By Shri V.M. Banakar, Additional Public Prosecutor for Respondents 1, 2 and 5, Respondent No.3 served, 5 M/s. Shankar Hegde Associates, Advocates for Respondent No.4) --- These writ petitions are filed under Articles 226 & 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, praying to call for the records relating to concerning and connected with the impugned notification dated 20-04-2012 vide Annexure-A professedly issued by the first respondent, peruse the same and declare and quash the said notification as devoid of the authority of law, malicious and non-est, and etc. These Petitions having been heard and reserved on 6.9.2013 and coming on for Pronouncement of Orders, this day, the Court made the following: O R D E R These petitions were dismissed for non-prosecution by an Order dated 26.8.2013. However, on an application in IA 1/2013, the same was recalled and the matter was heard on merits. 2. The facts leading up to this writ petition are as follows: Shri Ramachandrapura Mutta, Hosanagara taluk, Shimoga District, is a religious denomination of Havyak 6 brahmins, a sizable section of whom prefer to call themselves Havyak smartha brahmins. The mutta is headed by a pontiff, Shri Raghaveshwara Bharathi Swamy. It is stated that Shri Gokarna Mahabaleshwara Temple at Gokarna, a notified temple under Section 23 of the Karnataka Religious and Charitable Institutions Act, 1997 (Hereinafter referred to as ‘the KRCI Act’, for brevity), was denotified from the list of temples on 30.4.2003 and the management of the temple was handed over by the State Government by an Order dated 12.8.2008, to the aforesaid pontiff. The same however, is subject matter of challenge in several writ proceedings before this court, which are pending consideration. It is alleged that in view of the opposition raised to the management being handed over to the pontiff, and in retaliation thereof, the pontiff in active connivance with other persons managing the affairs of the Mutta, have chosen to initiate criminal proceedings against the petitioners herein alleging 7 offences punishable under Sections 120-B, 153-A, 295-A, 298, 500, 511 and Section 149 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity) read with Section 67 of the Information Technology Act, 2000 (Hereinafter referred to as ‘the IT Act’, for brevity). The petitioners had approached this court by way of a writ petition in WP 14356/2010. Even during the pendency of the writ petition, it is stated that one Srikanth, CPI, Puttur Town Police, was transferred and posted to Kumta. And that soon after the transfer, it is the allegation of the petitioners, the said officer launched an aggressive prosecution against the petitioners, purportedly at the instance of the authorities of the Mutta. The said officer is said to have secured the permission of the Court of JMFC, Kumta, to conduct further investigation. In the guise of further investigation, the petitioners claim that they are victimized and persecuted, in the pending criminal case for the offences punishable as aforesaid in case 8 C.C.No.686/2011, on the file of the Court of the Judicial Magistrate First Class, Kumta. It is alleged that in keeping with its single minded objective of persecuting and punishing the petitioners, the Chief Administrative Officer (CAO) of the Mutta, a retired high ranking Police Officer of the State Government had utilized his influence with the office of the Director of Prosecutions to obtain the appointment of the third respondent one Ashok Naik, as the Special Public Prosecutor to prosecute the pending criminal case against the petitioners, vide notification dated 20.4.2012 issued under Section 24(8) of the Code of Criminal Procedure, 1973 (Hereinafter referred to 'Cr.PC', for brevity) and Rule 30 of the Karnataka Law Officers (Recruitment and Conditions of Service ) Rules 1977, (Hereinafter referred to as the ‘KLO Rules’, for brevity). It is this appointment that is sought to be questioned in the present writ petition. 9 3. The learned Senior Advocate, Shri Subramanya Jois, appearing for the counsel for the petitioners, contends as follows: The impugned notification is bad in law. The appointment of the third respondent as a Special Public Prosecutor is made by the State Government, at the instance of the Mutta and its authorities, in flagrant violation of all notions of fair play. The malicious intention of the respondents being to fix the petitioners and to secure their conviction by means foul and unfair, is opposed to Section 24(2) to (6) of the Cr.PC. In that, the learned Sessions Judge of the District has not been consulted in the matter nor has any panel of names been prepared by the District Magistrate for the third respondent being appointed under the said provision. There is no indication that the State Government ever felt any expediency or necessity to displace the Public Prosecutors 10 representing the State in the pending criminal proceedings, who were on record. The circumstance that the third respondent was identified and named by the Mutta and its authorities, to be appointed as a Special Public Prosecutor, that has been mechanically implemented by the State, would lead to the unerring presumption that the object is to secure the conviction of the petitioners at all odds. It is contended that the position of a Public Prosecutor is sacred and the office involves the discharge of duties of a public nature and hence the public at large have a vital interest in the same being fair and transparent. The present appointment, at the dictates of individuals, consumed by malice, has compromised fair play and impartiality. It is contended that the order of appointment is bereft of any reasons and nothing is forthcoming, from the record placed before the court, justifying such appointment. On the other 11 hand, it is pointed out that a disturbing feature that would fully and completely establish as true, the foreboding fear and apprehension of the petitioners, is the glaring circumstance that the fee and expenses payable to the third respondent is to be borne by the CAO of the Mutta. It is hence patent that the impugned notification contemplates a bounty being conferred on the third respondent to secure the conviction of the petitioners and not at all to act as an impartial Public Prosecutor. The learned Senior Advocate would contend that the questions involved in the petition are no longer res integra, but are fully covered by a decision of this court rendered in the case of K.V. Shiva Reddy v. The State of Karnataka, ILR 2005 Kar. 4780 . It is hence contended that the petitions be allowed as prayed for. 12 4. The learned Additional Public Prosecutor arguing on behalf of the State, while placing the record of the State Government, pertaining to the subject matter, before this court for its scrutiny, would contend that the criminal case, which is the subject matter of the proceedings arises out of a case registered in Crime no.27/2010, dated 1.4.2010, by the Gokarna Police Station on the basis of a complaint filed by one G.K.Hegde. It was alleged that the accused named therein were distributing pamphlets and compact discs found to contain obscene and objectionable material affecting the conduct, character and integrity of the pontiff of the Mutta and the content was such that it was capable of inciting and hurting the religious feelings of his innumerable followers.

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