Karnataka High Court
Nithin Kumar vs The State Of Karnataka on 16 February, 2022
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION No.6484 OF 2021
BETWEEN
1 . NITHIN KUMAR
S/O RAMESH,
AGED ABOUT 31 YEARS,
R/AT 4-2-232, BHANDARA MANE
CHURCH CROSS ROAD, BEJAI,
MANGALURU
D K DISTRICT 575004
2 . MELWIN VISHWAS D SOUZA
S/O PATRICK D SOUZA,
AGED ABOUT 34 YEARS,
3 . DENZIL VIKSON D SOUZA
S/O PATRICK D SOUZA,
AGED ABOUT 31 YEARS,
PETITIONERS NO.2 AND 3 ARE
R/AT 3-25-11, ELYAR PADAVU HOUSE,
AMBLAMOGARU HOUSE,
MANGALURU TALUK 575017
... PETITIONERS
(BY SRI LETHIF B, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY MANGALURU EAST POLICE STATION,
D K DISTRICT,
REP BY THE SPP
HIGH COURT BUILDING,
BANGALORE 560001.
2
2. STATION HOUSE OFFICER
EAST POLICE STATION,
KADRI HILLS, MANGALURU CITY
DAKSHINA KANNADA DISTRICT - 575 003
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1 AND R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.916/2020 ON THE FILE OF J.M.F.C.-IV COURT,
MANGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION
78(1)(s)(vi) OF KARNATAKA POLICE ACT OF MANGALURU EAST
POLICE STATION, WHICH IS PRODUCED AT ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners-accused Nos.2
to 4 under Section 482 of Cr.P.C. for quashing the criminal
proceedings in C.C.No.916/2020 on the file of J.M.F.C, IV
Court, Mangaluru for the offences punishable under
Sections 78(1)(a)(vi) of the Karnataka Police Act, 1963
(for short 'K.P. Act').
2. Heard the arguments of learned counsel for
the petitioners and learned High Court Government
Pleader for respondent Nos.1 and 2.
3. The case of the prosecution is that
Sri Shivaprakash R.Naik, Police Officer received credible
information that the accused persons were indulged in
Cricket Betting in car near Bejaibail Poultry Co-operative
Society, Mangaluru in respect of IPL Cricket Match. Hence,
he gave information to the Mangaluru East Police and in
turn, the Mangaluru East Police sent a requisition to the
Magistrate seeking permission to register a case and
investigate the matter. The learned Magistrate is said to
have given permission and accordingly, charge-sheet came
to be filed which is under challenge.
4. Learned counsel for the petitioners brought to
the notice of this Court that the learned Magistrate without
application of mind has endorsed on the requisition as
permitted which is against the judgment of this Court and
also the Magistrate has not applied his mind while granting
permission which cannot be considered as valid permission
under Section 155(2) of Cr.P.C. Therefore, prayed for
quashing the proceedings.
5. Learned High Court Government Pleader
objected for the same.
6. Having heard the arguments on both sides,
admittedly, the requisition dated 29.03.2019 has been
forwarded to the learned Magistrate and the same was
endorsed by learned Magistrate as permitted at 9.30 p.m.
on 29.03.2019. Admittedly, the learned Magistrate has not
applied his mind while granting such permission to register
the case and investigate the matter. The Co-ordinate
Bench of this Court has issued guidelines in similar case
reported in ILR 2020 KAR 630 in the case of Vaggeppa
Gurulinga Jangaligi (Jangalagi) vs. The State of
Karnataka, through PSI, Kagwad Police Station,
Belagavi. The guidelines issued by the Court at
paragraph No.20 of the judgment is as under:
"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."
7. The co-ordinate Bench of this Court as well as
this Court has held in various cases that if the Magistrate
made an endorsement as 'permitted' and granted
permission without application of mind the criminal
proceeds in is not sustainable under the law and it cannot
be considered as a valid permission under Section 155(2)
of Cr.P.C.
Accordingly, the criminal petition is allowed.
The proceedings in C.C.No.916/2020 on the file of
JMFC, IV Court, Mangaluru for the offence punishable
under Section 78(1)(a)(vi) of K.P. Act of Mangaluru East
Police Station is hereby quashed.
The material seized by the Police in this case is
ordered to be confiscated to the State.
Sd/-
JUDGE
GBB
