Karnataka High Court

Sri. Mohammed Rafiq G.S vs State Of Karnataka on 16 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 16th DAY OF FEBRUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

                 CRIMINAL PETITION No.100399/2022

     BETWEEN
           SRI. MOHAMMED RAFIQ G.S
           S/O. G. ABDUL WAHEED,
           AGED ABOUT 51 YEARS,
           OCC: DISTRICT PRESIDENT, BALLARI, DCC,
           R/AT. NO. 17, BANDIHATTI ROAD,
           CMC COLONY, BELLARY-583102.
                                                ...PETITIONER
     (BY SRI S. M. TONNE, ADVOCATE)

     AND
     1.    STATE OF KARNATAKA,
           BY THE POLICE OF BRUCEPET POLICE STATION,
           BALLARI-583101,
           REP. BY THE STATE PUBLIC PROSECUTOR,
           HIGH COURT OF KARNATAKA,
           DHARWAD BENCH, DHARWAD-580011.

     2.    SRI. SRINIVAS T S/O. LATE SOMAPPA,
           AGED ABOUT 40 YEARS,OCC: STATE GOVT. EMPLOYEE,
           FLYING SQUAD TEAM-5 94-AC,
           BALLARI CITY, BALLARI-583 101.
                                              .....RESPONDENTS

     (BY SRI RAMESH CHIGARI, HCGP FOR R1 )

      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO PASS AN ORDER, QUASHING THE ENTIRE PROCEEDINGS
IN CC NO.1707/2019 (CRIME NO.75/2019 OF BRUCEPET P.S.,
BALLARI) FOR THE OFFENCE PUNISHABLE U/S 171-H OF THE IPC,
PENDING ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND
JMFC, BALLARI.
                                       2




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


                                 ORDER

The petitioner calls in question the proceedings in

C.C.No.1707/2019, pending on the file of I Addl. Civil Judge and

JMFC, Ballari, registered for the offence punishable under

Section 171H of the Indian Penal Code, 1860.

2. Heard Shri.S.M.Tonne, the learned counsel

appearing for the petitioner and Shri Ramesh Chigari, the

learned HCGP appearing for the respondent.

3. The incident which happens on 15.4.2019 results in

registration of the offence punishable under section 171H of the

Indian Penal Code, 1860 which is a non-cognizable. For a non

cognizable offence, registration of the complaint cannot result in

registration of the FIR unless the Jurisdictional Magistrate

permits for conduct of such investigation for registration of the

FIR in terms of Section 155(2) of the Code of Criminal

Procedure, 1973. Both the learned counsel would in unison

submit that both the issues stand covered by the judgment

rendered by a co-ordinate Bench of this Court in

Crl.P.No.100197/2014, disposed off on 3.2.2014, wherein this

Court considering identical offence has held as follows:

3. On careful perusal of the petition averments as well as after hearing the learned counsel for the petitioner, the factual matrix disclose that the person by name Shrihari Basavapattanna Ramakrishnarao submitted a F.I.R. to the police making allegation against the petitioner herein that on 02.05.2013 at about 12.45 p.m. in the after noon, the petitioner has used the Car bearing registration No.KA- 48/M-4053 for the purpose of election canvassing without prior permission of the Election Commission, during the Legislative Assembly election in Karnataka proposed to be held on 05.05.2013. The police on being intercepted the vehicle, seized the said vehicle and registered a case against the petitioner for the offence punishable under Section 171H of IPC and also under Section 133 of the Representation of People Act, 1950.

4. Learned counsel for the petitioner strenuously contends that the above said two offences are non-cognizable offences. Therefore, under Section 155(2) of Cr.P.C., the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities.

5. On perusal of the FIR and also the charge sheet, it does not disclose that there was any cognizable offence was disclosed, so as to enable the police to investigate both the cognizable

and non- cognizable offences together and to file the charge sheet. Therefore, he contends that the entire charge sheet papers and on the basis of which the criminal case is registered to be quashed.

6. The provision under Section 171H of IPC reads as follows:

171H. Illegal payments in connection with an election "Whoever without the general or special authority in writing of candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees.

PROVIDED that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."

7. The provision under Section 133 of Representation of People Act 1951 reads as follows:

"If any person is guilty of any such corrupt practice as is specified clause (5) of Section 123 at or in connection with an election, he shall be punishable with imprisonment which may extend to three months and with fine "

8. On perusal of the above said two provisions, none of the offences are punishable with imprisonment for more than 3 months Section 171H of Indian Penal Code is punishable with a fine, which may extend to Rs.5,00/-, wherein under Section 133 of Representation of People Act, prescribes punishment which may extend to three months and also with fine. Now coming to the provision of first schedule of Cr.P.C., Section 171(H) of Indian Penal Code is covered under the said provision which is declared as non-cognizable and bailable offence, and triable by the Magistrate of the First Class. Like wise classification of offence against other laws in Cr.P.C., it also describes, if any offence under any other law, if punishable for less than three years or with fine which shall be considered as non- cognizable, bailable and triable by the Magistrate of First Class.

9. On perusal of the above said provisions, it is abundantly clear that the offence registered against the petitioner under Section 171H of IPC and Section 133 of Representation of the People Act, are non-cognizable in nature. Now, coming to Section 155(2) of Cr.P.C. which reads as follows:

"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"

10. Particularly, Section 155(2) mandates the police concerned that such police officer shall investigate the non- cognizable offence with the permission of the Magistrate only. This Section describes that no Police Officer shall investigate a non-

cognizable case without the order of the Magistrate having power to try such case for trial.

11. The provision in sub Section (2) of Section 155 of Cr.P.C., for asking permission of the Court to investigate a non-cognizable offence is mandatory in nature. Therefore, the investigation of non-cognizable offence by the police without prior permission of the competent Magistrate is illegal. Even mere accepting the charge sheet by the Magistrate and taking the cognizance of the offence does not validate the proceeding. Even subsequent permission by the Magistrate also cannot cure the illegality. As could be seen from Section 460 of Cr.P.C. these defects of non- taking permission before investigating a non- cognizable offence is also not curable. Though the charge sheet is filed after due investigation without prior permission of the Court and that the Magistrate has accepted the charge sheet and taken the cognizance, it does not mean to show permission is granted by the Magistrate to investigate such non- cognizable offence. Therefore, investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section.

12. In view of the above said facts and circumstances of the case, the investigation done by the police in this case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the learned Magistrate is also illegal. Secondly, the entire proceeding before the learned Magistrate is vitiated by serious incurable defects.

(Emphasis supplied.)

4. In the light of the decision of this Court (supra), the

following: