Karnataka High Court

Vishwanath Swami S/O. ... vs The State Of Karnataka on 4 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 4th DAY OF FEBRUARY 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.100061/2022

BETWEEN

VISHWANATH SWAMI
S/O.SANGAYYASWAMI MALLADAGUDDA,
AGE-42 YEARS, OCC-AGRICULTURE,
R/O.KANAKAGIRI, TQ-KANAKAGIRI,
DIST-KOPPAL.
                                          ...PETITIONER
(BY SRI ANAND R.KOLLI, ADVOCATE)

AND :

THE STATE OF KARNATAKA,
REP BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT: DHARWAD.
(THROUGH KANAKAGIRI P.S. GANGAVATI)
DIST-KOPPAL.
                                         ...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP FOR RESPONDENT)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE IMPUGNED ORDER DATED
31.12.2019 PASSED BY THE HON'BLE ADDITIONAL CIVIL JUDGE
AND JMFC, GANGAVATHI IN C.C.NO.1915/2019 FOR AN
OFFENCE PUNISHABLE U/S 78(3) OF KARNATAKA POLICE ACT
IN CRIME NO.120/2019 REGISTERED BY THE KANAKAGIRI
                                 2




POLICE STATION FOR AN OFFENCE PUNISHABLE U/S 78(3) OF
KARNATAKA POLICE ACT 1963 BY ALLOWING THE CRIMINAL
PETITION IN THE INTEREST OF JUSTICE.

    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:

                            ORDER

Heard Shri Anand R.Kolli, the learned counsel appearing

for the petitioner. The learned HCGP is directed to accept notice

for the respondent-State and is heard in the matter.

2. The petitioner is before this Court calling in question

the proceedings in C.C.No.1915/2019, pending on the file of

Additional Civil Judge and JMFC, Gangavathi, registered for the

offence punishable under Section 78(3) of the Karnataka Police

Act, 1963, which is non cognizable at the time when the offence

was committed on 25.10.2019 in terms of what is seen in the

first information report. In the light of the fact that the said

offence was non cognizable, FIR could not have registered

against the petitioner on such offence without at the outset

seeking permission from the hands of the Magistrate.

3. It is admitted fact in the case at hand that no such

permission is sought from the Magistrate to register the FIR or

conduct investigation. The issue stands covered by the

judgment rendered by the co-ordinate Bench of this Court in

Crl.P.No.101632/2021 and connected cases, disposed off on

21.9.2021, wherein this Court has held as follows:

4. The main ground of attack by the petitioner in respective petitions is that the offence alleged is under Section 78(3) of K.P. Act. 1963 and it is a non cognizable offence. Before proceeding to investigate the offence the Police ought to have taken prior permission from the concerned court as required under Section 155(2) of Cr.P.C. Therefore, there is no compliance of Section 155(2) of Cr.P.C. It is further contended that even if the permission from the Magistrate was obtained, it is not in accordance with the guidelines issued in Vaggeppa Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in 2020 KAR 630. Learned HCGP has contended that in some of the cases, the Police have obtained permission of the concerned court and then investigated the matter and filed the charge sheet. He further contended that the Police have taken the care to comply mandatory requirements and then only they have proceeded with the matter and ultimately filed the charge sheet.

5. Co-ordinate Bench of this court in the case of Moin Basha Kurnooli V/s. The State of Karnataka, By Cowl Bazaar Police Station, reported in 2014 (4) KCCR 3355 elaborately considered the provisions of Section 155 (2) and 155(3) of Karnataka Police Act and held that offence under Section 78(3) of K.P. Act is a non cognizable offence. Investigation of cases under Section 78(3) of K.P. Act and all further

proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.

6. In view of the law laid down in the aforesaid decisions, the Police have taken prior permission from the jurisdictional Magistrate to investigate a non cognizable offence as required under Section 155(2) of Cr.P.C.

7. In crime No.151/2020 of Ranebennur Rural Police station, the FIR came to be registered for the offence under Sections 78(3) of K.P. Act and Section 420 of IPC and charge sheet has been filed only for the offence under Section 78(3) of K.P. Act. Section 420 of IPC is invoked only to get over requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation to attract ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioner or other accused persons named in the FIR. In the said crime No.151/2020 the Police have not obtained permission of the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C. Therefore, the prosecution of the petitioner for the alleged offence is an abuse of process of court.

8. The coordinate Bench of this court in the case of Vaggeppa Gurulinga Jangaligi (supra) 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:

i)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.

ii) 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.

iii) 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.

iv) 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.

v) 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.

9. In Crime No.93/2020 of Guttal Police Station the Police gave requisition seeking permission to investigate a non cognizable offence and the learned Magistrate on the same day has issued intimation as granted permission to investigate a non cognizable offence.

10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave requisition and on the same requisition, the learned Magistrate has made endorsement as "permitted to register the case".

11. On looking to the said aspects, it is clear that the learned Magistrate has not followed the guidelines laid down in Vaggeppa case (supra). By looking to the said endorsement, there is no application of judicious mind by the learned Magistrate. Under the circumstances, the proceedings initiated against the petitioner in the following cases cannot sustain in law and accordingly, they are quashed."

4. In the light of the orders passed (supra) and for the

reasons aforementioned, the following: