Karnataka High Court
Sri.K. Nagabhushan Rao vs The State Of Karnataka on 7 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100237 OF 2016
BETWEEN:
SRI K.NAGABHUSHAN RAO
S/O SRI K.RAMA KRISHNA RAO
AGED ABOUT 48 YEARS
R/O NO.79/5A, BEHIND DURGA MILK DAIRY
INFANTRY ROAD,
CANTONMENT, BALLARI.
... PETITIONER
(BY SRI T.BASAVANA GOUD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY PSI,
COWL BAZAR POLICE STATION
BALLARI, REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
DHARWAD.
2. SRI HATTEPPA P.S.,
MAJOR
EMPLOYMENT OFFICER
AND M.C.C.TEAM
LEADER, ZONE - 1
BALLARI. ... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1;
R2 SERVED AND UNREPRESENTED)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER OF PERMISSION
ACCORDED TO THE APPLICATION BEARING NO.NC 82/CBPS/2013,
DATED 07.04.2013, BY THE LEARNED 2ND ADDITIONAL JMFC
BALLARI, CONSEQUENTLY NUMBERED AS CRIME NO.103/2013 OF
THE RESPONDENT'S POLICE STATION AND SUBSEQUENT CHARGE
SHEET IN C.C.NO.563/2013 PENDING ON THE FILE OF THE 2ND ADDL.
J.M.F.C., BALLARI AND ORDERS DATED 17-02-2016 PASSED BY THE
SECOND ADDITIONAL SESSIONS JUDGE, BALLARI, IN
CRL.R.P.NO.91/2013.
THIS CRIMINAL PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question
proceedings in C.C.No.563 of 2013 pending on the file of the II
Additional JMFC, Ballari registered for offences punishable
under Section 35 of the Karnataka Police Act, 1963 and Section
126 of the Representation of People Act, 1950, 1951 and 1989
and order dated 17-02-2016 passed by the II Additional Sessions
Judge, Ballari rejecting Crl.R.P.No.91 of 2013.
2. Heard Sri.T.Basavan Goud, learned counsel for
petitioner, Sri.Ramesh Chigari, learned High Court Government
Pleader for respondent No.1. Respondent No.2 is served and
unrepresented.
3. Brief facts leading to the filing of the present petition, as
borne out from the pleadings, are as follows:-
On 07-04-2013 the Police with a team claiming to be on
surveillance at a particular place - Indiranagar 10th Cross -
found that the petitioner and his companions were canvassing to
vote in favour of CPI party which had put up its candidate for
the assembly polls slated to be held on 05-05-2013. The Police
team seized caps, scraps and flags of CPI party. Based upon the
said incident, a non-cognizable case in N.C.No.82 of 2013 was
sought to be registered and a representation was made by the
jurisdictional police before the Court of competent jurisdiction
for grant of permission to investigate and register the case
against the petitioner. The learned Magistrate by his order dated
7-04-2013 accorded such permission to the jurisdictional police
to register the case and investigate into the matter.
4. Aggrieved by the order dated 07-04-2013 passed by the
learned Magistrate, the petitioner preferred Criminal Revision
Petition No.91 of 2013 before the learned Sessions Judge. The
learned Sessions Judge dismissed the revision petition by his
order dated 17-02-2016. It is these proceedings that have driven
the petitioner to this Court in the present petition.
5. The learned counsel appearing for the petitioner would
contend that the act of police who claimed to be the informant in
the case at hand in applying before the learned Magistrate for
grant of permission and permission being granted without
application of mind is in violation of the law laid down by this
Court in plethora of cases wherein this Court has detailed the
procedure for seeking grant of permission.
6. On the other hand, the learned High Court Government
Pleader would seek to justify the action and submits that it is a
matter for trial, in which the petitioner will have to come out
clean.
7. This Court, while entertaining the petition, has granted
an interim order of stay of further proceedings and therefore, the
proceedings as stood at the time when the criminal revision
petition was filed remain the same as on date.
8. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record.
9. The afore-narrated facts are not in dispute. The grant of
permission on an application filed by the Station House Officer
to investigate the offences punishable under Section 35 of the
Karnataka Police Act and Section 126 of the Representation of
People Act is what is to be considered and grant of permission if
suffers from non-application of mind is required to be looked
into. The representation dated 07-04-2013 by which the Station
House Officer seeks permission from the hands of the learned
Magistrate reads as follows:
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On this representation itself the learned Magistrate makes an
endorsement reading "Permitted" on the same day. Therefore,
the order granting permission to set the criminal law in motion
on a non-cognizable offence suffers from want of application of
mind.
10. This is the consistent view taken by this Court in plethora
of judgments in several cases, one of which is in the case of
VAGGEPPA GURULINGA JANGALIGI V. STATE OF
KARNATAKA1, wherein the Co-ordinate Bench of this Court
holds as follows:
"3. The petitioner has stated that the complaint is
misconceived, and the alleged offence is non-cognizable as
per the Code of Criminal Procedure, 1973. Therefore, the
Police have no authority to investigate the crime. It is
further submitted that the Police have not complied with
mandatory requirement of Section 155 of Cr. P.C. When the
officer-in-charge of the Police Station received information
regarding commission of non-cognizable offence, he shall
enter the same in a book to be maintained by the said
officer and refer the informant to he Magistrate. Further,
sub-Section (2) of Section 155 of Cr. P.C., mandates that no
Police Officer shall investigate a non-cognizable case
without order of a Magistrate having power to try such
case or commit such case for trial. The petitioner has
further stated that there is no iota of evidence that the
ILR 2020 KAR 630
above said mandatory requirement are complied with.
There is no speaking order by the jurisdictional Magistrate
permitting the Police to take up investigation. Therefore, the
proceedings initiated against the petitioner who is arrayed
as accused No. 4 in the charge sheet are liable to be
quashed.
5. The Learned Counsel for the petitioner submitted
that the offence punishable under Section 87 of the K.P. Act
is non-cognizable one and therefore, as per Section 155(1)
of Cr. P.C., the informant PSI ought to have been referred to
the jurisdictional Magistrate and the jurisdictional
Magistrate ought to have passed the order, permitting the
concerned Police to take up investigation of the case and
these are the mandatory requirements of the provisions
under Section 155(1) and 155(2) of Cr. P.C. which are not
followed in the present case. Therefore, the proceedings
initiated against the petitioner are vitiated and are liable to
be quashed.
8. It is not in dispute that the alleged offence
punishable under Section 87 of the K.P. Act is a non-
cognizable offence. When the report is received by the SHO
of Police Station in respect of commission of non-cognizable
offence, the SHO has to follow the mandatory procedure
prescribed under Section 155(1) and 155(2) of Cr. P.C.
Therefore, it is necessary to refer the said provision.
Section 155 of Cr. P.C., which deal with the procedure for
investigation and for taking cognizance of non-cognizable
offence reads as follows:--
"155. Information as to non-cognizable
cases and investigation of such cases.
(1) When information is given to an officer in
charge of a police station of the commission within
the limits of such station of a non-cognizable
offence, he shall enter or cause to be entered the
substance of the information in a book to be kept
by such officer in such form as the State
Government may prescribe in this behalf, and refer
the informant to the Magistrate.
(2) No police officer shall investigate a non-
cognizable case without the order of a Magistrate
having power to try such case or commit the case
for trial.
(3) Any police officer receiving such order may
exercise the same powers in respect of the
investigation (except the power to arrest without
warrant) as an officer in charge of a police station
may exercise in a cognizable case.
(4) Where a case relates to two or more
offences of which at least one is cognizable, the
case shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-
cognizable."
9. Therefore, when the SHO of the Police Station
receives a report regarding commission of non-cognizable
offence, it is his duty to enter the substance of the
information in the prescribed book and refer the informant
to the Magistrate as required under Section 155(1) of Cr.
P.C. Thereafter, the jurisdictional Magistrate is required to
pass an order permitting the Police Officer to investigate
the case as mandated by the provisions of Section 155(2)
of Cr. P.C., stated supra. Unless, the Police Officer is
permitted by an order of the jurisdictional Magistrate to
investigate the non-cognizable offence, the Police Officer
does not get jurisdiction to investigate the matter and file a
final report or the charge sheet.
10. This Court in the case of Praveen Basavanneppa
Shivalli v. State of Karnataka [(2017) 1 AIR Kant R 461] ,
considered the requirement of Section 155(1) and (2) of Cr.
P.C., where case relates to a non-cognizable offence, in
para 10 of the judgment this Court has observed as
follows:
"10. S. 155 of Cr. P.C. deals with the
procedure to be adopted in respect of the
information received by the Officer in charge of a
Police Station relating to commission of non-
cognizable offence. As per sub-section (I) of S. 155
Cr. P.C. when an Officer in charge of Police Station
receives the information as to the commission of a
non-cognizable offence, he shall enter or cause to
be entered the substance of the information in a
book to be maintained by such Officer in the
prescribed form 'and refer the informant to the
Magistrate'. Sub-section (2) of S. 155 Cr. P.C.
makes it clear, that no Police Officer shall
investigate a non-cognizable case without the order
of a Magistrate having power to tty such case or
commit case for trial. Sub-section(1) of S. 155 Cr.
P.C., which casts a duty on the station house
officer who receives information as to the
commission of non-cognizable offence to enter or
cause to be entered the information in the
prescribed book and refer the informant to the
Magistrate, does not enable the SHO himself to
approach the Magistrate and seek orders. The
provision makes it clear, that the SHO shall refer
the informant to the Magistrate, thereby, making
clear that it is for the informant to seek the orders
of jurisdictional Magistrate for issue of direction to
the police for investigation of the case. The
Magistrate, on being approached by the informant,
if orders investigation, the SHO concerned would
get jurisdiction to register the crime, investigate the
matter and not otherwise."
11. This Court in the case of Mukkatira Anitha
Machaiah v. State of Karnataka [ Crl.P. 5934/2009
decided on 20/8/2013] , considered the scope of Section
155(1) and (2) of Cr. P.C., has observed in para 5 as
follows:--
"5. Section 155 of Cr. P.C. deals with the
procedure to be adopted in respect of an
information received by the officer in charge of a
police station relating to commission of a non-
cognizable offence. According to sub-section (1) of
Section 155 of Cr. P.C., when an officer in charge of
the Police Station receives an information as to the
commission of a non-cognizable offence, he shall
enter or cause to be entered the substance of the
information in the prescribed book and refer the
informant to the Magistrate. According to sub-
section (2) of Section 155 of Cr. P.C., no police
officer shall investigate a non-cognizable case
without a order of a Magistrate having power to try
such case or commit the case for trial. Thus reading
of sub-section (1) of Section 155 of Cr. P.C. makes it
clear that the duty of the SHO, who receives
information as to the commission of a non-
cognizable offence is only to enter or cause to be
entered the substance of the information in the
prescribed book and refer the informant to the
Magistrate. It is for the informant to approach the
jurisdictional Magistrate and seek a direction to the
police for investigation. If the Magistrate on being
approached by the informant, directs investigation,
the Police Officer concerned would get jurisdiction
to investigate the matter."
12. This Court in paragraph 6 has further has
observed as follows:--
"In the case on hand, as noticed supra, upon
receipt of the report submitted by the
nd
2 respondent, the SHO of Virajpet Police Station
registered the same as NCR and submitted a
requisition to the jurisdictional Magistrate seeking
permission to investigate the matter, based on
which, the Magistrate granted permission. Thus,
the procedure adopted by the SHO is without the
authority of law and the same is not contemplated
under Section 155 of Cr. P.C. Therefore, the
permission granted by the Magistrate on such
requisition is also without any basis, as such, the
investigation carried on by the police and the
charge sheet filed thereon are without the authority
of law. Therefore, the prosecution launched against
the petitioner is liable to be quashed. However, it is
open to Respondent No. 2, who is the informant
before the police to approach the jurisdictional
Magistrate and seek necessary orders as
contemplated under Section 155 of Cr. P.C."
13. Therefore, the SHO of the Police Station has no
authority of law unless the jurisdictional magistrate
permits the Police Officer for investigation of the non-
cognizable offence.
14. This Court in the case of Padubidri Members
Lounge v. Director General and Inspector General of
Police [W.P. Nos. 42073-75/2018 DD : 3/10/2012] ,
considered the mandatory provision of Section 155(1) and
(2) of CrP.C., where the charge sheet was filed for the
offence under Section 87 of the K.P. Act. In paragraphs 6
and 7, this Court has held as follows:--
"6. As per the above provisions, when an
Officer-in-charge of the police station receives an
information with regard to commission of non-
cognizable offence/s, i) he shall enter or caused to
be entered the substance of the information in a
book to be maintained by the said Officer in a
prescribedform and ii) refer the informant to the
Magistrate. Further, Sub-Section (2) of Section 155
Cr. P.C., mandates that no Police Officer shall
investigate a non-cognizable offence without the
order of a Magistrate having power to try such case
or commit such case for trial.
7. In the instant case, police have failed to
comply with the requirements of Section 155(1) and
155(2) of Cr. P.C. There is nothing on record to
show that the respondents have referred the
informant to the concerned Magistrate as required
under Section 155(1) of Cr. P.C., or obtained
necessary order as envisaged under Section 155(2)
of Cr. P.C., before embarking upon investigation.
Thus, on the face of it, the respondents are seen to
have violated the provisions of Sections 155(1) and
155(2) of Cr. P.C."
15. Again this Court, in the case
of Veeranagouda v. The State of Karnataka [ Crl.P. No.
102021/2018 decided on 11/1/2019] , considered the
requirements of Section 155(1) and (2) of Cr. P.C., and has
held in para 9 as follows:--
"The Counsel appearing for the petitioner'
also brought to the notice of this Court that when a
requisition was given to the Magistrate, only an
endorsement is made as permitted to investigate
as per section 155 of Cr. P.C. on the very request
letter itself and the same is not in accordance with
law. The concerned Magistrate did not apply his
mind and passed any considered order. On the
requisition only an endorsement is made and the
same is not the permission in the eye of law.
Therefore in reality it is not permission at all and
the prosecution has not satisfied the Court that
mandatory requirements are complied before
proceeding with the investigation in the matter.
Legal aspect has not been complied and the same
has been over looked by the Court below while
ordering for registering the criminal case against
the petitioners' herein. Looking to these materials it
goes to show that it is the abuse of process of Court
to continue the proceedings. Not only it is wasting
of valuable time and energy of the Court. Even if
the trial is proceeded with, it is a futile exercise in
the matter."
16. Therefore, this Court time and again has
quashed the proceedings initiated against the accused
persons in respect of non-cognizable offence on the ground
that the mandatory provisions of Section 155(1) and (2) of
Cr. P.C., are not complied with. However, this Court has
not laid down any guidelines for the Learned Magistrates
as to how and in what manner they have to pass the Order
under Section 155(2) of Cr. P.C., when a requisition is
submitted to the Learned Magistrate seeking permission to
investigate the non-cognizable offence.
17. In the cases referred above, invariably the
Learned Magistrates have passed the orders on the
requisition submitted by the SHO of the Police Station by
writing a word "permitted" or "permitted to investigate".
This Court has held that making such an endorsement on
the requisition submitted by the Police is not passing
orders and there is no application of judicious mind in
permitting the Police Officer to take up the investigation for
non-cognizable offence.
18. Under these circumstances, this Court felt it
necessary to lay down some guidelines for the benefit of
our Judicial Magistrates as to how they have to approach
and pass orders when requisition is submitted by the SHO
of Police Station seeking permission to investigate into the
non-cognizable offence. The provision of Section 155(1) and
(2) of Cr. P.C., referred above make it very much clear that
the SHO of the Police Station on receiving the information
regarding the commission of non-cognizable offence, his
first duty is to enter or cause to be entered the substance of
such commission in a book maintained by such Officer and
then refer the informant to the Magistrate. This is the
requirement of Section 155(1) of Cr. P.C. Once the
requisition is submitted to the Magistrate, it is for the
Jurisdictional Magistrate to consider the requisition
submitted by the SHO of Police Station and pass necessary
order either permitting the Police Officer to take up the
investigation or reject the requisition. Section 155(2) of Cr.
P.C., specifically provides that no Police Officer shall
investigate the non-cognizable case without the order of the
Magistrate having power to try such case or commit such
case for trial. Therefore, passing an "order" by the
Magistrate permitting the Police Officer to investigate the
non-cognizable offence is an important factor. The word
without the order of the Magistrate appearing in sub-
Section (2) of Section 155 of Cr. P.C., makes it clear that the
Magistrate has to pass an 'order' which means supported
by reasons. On the other hand, in number of cases, the
Jurisdictional Magistrates are writing a word 'permitted' on
the requisition submitted by the Police itself which does not
satisfy the requirement of Section 155(2) of Cr. P.C., Such
an endorsement cannot be equated with the word 'Order'.
19. Chapter V Rule 1 of Karnataka Criminal Rules of
Practice, 1968 also deals with investigation of non-
cognizable case. The said provision reads as follows:--
"INVESTIGATION AND PROSECUTION
*1. Report under Section 154.--(1) On receipt
of the report of the Police Officer under Section 154
of the Code, the Magistrate shall make a note on
the report of the date and time of the receipt thereof
and initial the same. Before initialing, the
Magistrate shall also endorse on the report
whether the same has been received by the post or
muddam.
2. (1) When a Magistrate directs an
investigation of a case under Sections 155(2),
156(3) or 202 of the Code, he shall specify in his
order the rank and designation of the Police Officer
or the Police Officers by whom the investigation
shall be conducted."
20. Therefore, under Rule 1, the Magistrate shall
endorse on the report whether the same has been received
by post or muddam. Under Rule 2, Magistrate has to
specify in his order the rank and designation of the Police
Officer or the Police Officer by whom the investigation shall
be conducted. Considering the mandatory requirement of
Section 155(1) and (2) of Cr. P.C., and Rule 1 and 2 of
Chapter V of the Karnataka Criminal Rules of Practice, this
Court proceed to laid down the following guidelines for the
benefit of the judicial Magistrate working in the State.
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.
21. Coming to the case on hand, the SHO of Kagwad
Police Station received a complaint from PSI on 23/9/2019
and SHO submitted a requisition to IV Additional JMFC,
Athani, seeking permission to investigate the offence under
Section 87 of the K.P. Act which is a non-cognizable
offence. It is seen that the Learned Jurisdictional
Magistrate has made an endorsement on the requisition
which reads as follows:--
"Perused materials. Permitted
Sd/-"
22. Therefore, absolutely there is no application of
judicious mind by the Learned Magistrate before permitting
the Police to investigate the non-cognizable offence much
less an order passed by the Learned Magistrate.
23. Under these circumstances, the proceedings
initiated against the petitioner in CC No. 3397/2019
pending on the file of the IV Additional Civil Judge and
JMFC, Athani, are liable to be quashed so far as the
petitioner is concerned. Accordingly, the petition filed under
Section 482 of Cr. P.C., is allowed and the said
proceedings are hereby quashed as against the petitioner
is concerned."
In the afore-extracted judgment, this Court has clearly
delineated the procedure to be followed by the learned
Magistrate while according permission for conduct of
investigation of a non-cognizable offence.
11. The informant in certain cases would be a private
party. It is the very informant who has to be produced before
the learned Magistrate. The informant in the case at hand is the
Station House Officer. Therefore, the Station House Officer when
seeks permission for conduct of investigation, the learned
Magistrate is required to apply his mind and then accord such
permission. A rubber stamp permission as 'permitted' would not
stand scrutiny of law. Hence, the very permission granted by the
learned Magistrate for the Police to investigate into the afore-
mentioned non-cognizable offence is rendered unsustainable.
12. In the result, Criminal Petition is allowed. Impugned
proceedings in C.C.No.563 of 2013 pending on the file of the II
Additional JMFC, Ballari and order dated 17-02-2016 passed by
the II Additional Sessions Judge, Ballari rejecting Crl.R.P.No.91
of 2013 stand quashed.
Sd/-
JUDGE
bkp
CT:MJ
