Karnataka High Court
Gurunath Laxman Kankanawadi vs The State Of Karnataka on 2 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100121/2022
BETWEEN:
1. GURUNATH LAXMAN KANKANAWADI
AGE: 58 YEARS, OCC: AGRICULTURE
R/O. TUKKANATTI,
TQ: GOKAK, DIST: BELAGAVI-591224
2. MAHADEVAPPA RAJAPPA BHOVI
AGE: 75 YEARS, OCC: AGRICULTURE
R/O. KOUJALAGI,
TQ: GOKAK, DIST: BELAGAVI -591227
...PETITIONERS.
(BY SHRI VITTHAL S TELI, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
BY THE GOKAK TOWN
POLICE STATION, GOKAK
DIST: BELAGAVI
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT.
(BY SHRI RAMESH CHIGARI, HCGP.)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
PROCEEDING IN C.C.NO.1626/2011 DATED 16.11.2011 ON THE FILE
OF PRL. JMFC, GOKAK, FOR OFFENSE PUNISHABLE UNDER SECTION
133 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951, INSOFAR
PETITIONERS/ACCUSED NO.3 AND 7, ETC.,.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
Heard Shri Vitthal S. Teli, the learned counsel appearing
for the petitioners. The learned HCGP is directed to accept
notice for the respondent State and is heard in the matter.
2. The petitioners are before this Court calling in
question the proceedings in C.C.No.1626/2011, pending on the
file of Prl. JMFC, Gokak, registered for the offence punishable
under Section 133 of the Representation of the People Act,
1951.
3. Both the learned counsel appearing for the
petitioners and the learned HCGP would in unison submit that
the issue in the petition stands covered by plethora of
judgments rendered by the co-ordinate benches of this Court,
the latest of which is rendered on 8.9.2021 in
Crl.P.No.100550/2021, which is concerned the very crime
against accused nos.4 and 6, wherein this Court has held as
follows:
5. Section 155(2) of Cr.P.C is a mandatory
provision which mandates that, no Police officer
shall investigate a non-cognizable case without an
order of a Magistrate having power to try such case
or commit the case for trial.
6. On a detailed discussion of the RP Act,
the Hon'ble Apex Court in the decision reported in
(1996) 11 SCC 557 in the case of Keshv Lal
Thakur v. State of Bihar, has held that.
" Election - Representation of People
Act, 195-S.31- Investigation into, and
taking cognizance of offence under -
Legality - Being a non-cognizable
offence, investigation into offence
under S.31 without an order of a
competent Magistrate under S.155(2)
Cr.P.C., held, illegal - Hence, the
Magistrate could not take cognizance
thereof upon the report submitted on
completion of such investigation -
Criminal Procedure Code, 1973, Ss.2(c)
& (d), 154, 155(2) & 190(1)(a)(b)."
7. Relying upon the aforesaid decision, the
Co-ordinate Bench of this Court in the case of
Shashil s/o Gangadhar Namoshi v. The State
of Karnataka and another in Criminal Petition
No.200420/2015 has held that taking cognizance
by the Magistrate on the basis of report submitted
by the Police after due investigation pertaining to
non-cognizable offence is bad in law and the same
is liable to be quashed.
8. Learned High Court Government
pleader has contended that the Police have filed
requisition before the jurisdictional Magistrate and
obtained permission to investigate the offence
under Section 133 of RP Act.
9. Learned counsel for the petitioners
submitted that the said permission obtained by the
Police and granted by the judicial Magistrate is not
in accordance with the Guidelines laid down by the
co-ordinate Bench of this Court in the case of
Vaggeppa Gurulinga Jangaligi (Jangalagi) v.
State of Karnataka reported in 2020(2) AK 177.
The co-ordinate Bench of this Court, after
elaborately considering Section 155(1) and (2) of
Cr.P.C. and Chapter V Rule 1 of Karnataka Criminal
Rules Practice, 1968 has issued Guidelines to be
followed by judicial Magistrate. The said guidelines
are as under:
a. The Jurisdictional Magistrates shall stop
hereafter making endorsement as
'permitted' on the police requisition
itself. Such an endorsement is not an
order in the eyes of law and as
mandated under Section 155(2) of
Cr.P.C.
b. When the requisition is submitted by
the informant to the Jurisdictional
Magistrate, he should make an
endorsement on it as to how it was
received, either by post or by Muddam
and direct the office to place it before
him with a separate order sheet. No
order should be passed on the
requisition itself. The said order sheet
should be continued for further
proceedings in the case.
c. When the requisition is submitted to
the Jurisdictional Magistrate, he has to
first examine whether the SHO of the
police station has referred the
informant to him with such requisition.
d. The Jurisdictional Magistrate should
examine the contents of the requisition
with his/her judicious mind and record
finding as to whether it is a fit case to
be investigated, if the Magistrate finds
that it is not a fit case to investigate,
he/she shall reject the prayer made in
the requisition. Only after his/her
subjective satisfaction that there is a
ground to permit the police officer to
take up the investigation, he/she shall
record a finding to that effect
permitting the police officer to
investigate the non-cognizable offence.
e. In case the Magistrate passes the
orders permitting the investigation,
he/she shall specify the rank and
designation of the Police Officer who
has to investigate the case, who shall
be other than informant or the
complainant.
10. In the case on hand, the Police gave
requisition seeking permission to investigate a non-
cognizable offence and on the very said requisition,
the judicial Magistrate has endorsed as "permitted".
The learned Magistrate has not followed Guideline
No.(b) of the aforesaid Guidelines. Upon looking to
the said endorsement, there is no application of
judicious mind by the learned Magistrate.
11. In the circumstances, the proceedings
initiated against the petitioners herein cannot be
sustained in law. Accordingly, the following order:
4. In the light of the order passed by the co-ordinate
bench concerning accused nos.4 and 6, the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in C.C.No.1626/2011, pending
on the file of Prl. JMFC, Gokak, stand quashed
against the petitioners/accused nos.3 and 7.
Sd/-
JUDGE
Mrk/-
