Karnataka High Court

Sri. Mohammed Rafiq G.S vs State Of Karnataka on 17 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 17TH DAY OF FEBRUARY 2022

                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

               CRIMINAL PETITION NO.100402/2022

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, BALLARI-583102
                                              ...PETITIONER.
(BY SMT.KEERTHANA NAGARAJ AND SHRI S M TONNE, ADVOCATES.)


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.   KIRAN KUMAR
     AGED ABOUT 32 YEARS
     OCC. STATE GOVT. EMPLOYEE
     FLYING SQUAD TEAM-6
     BALLARI CITY-94, AC. 09-PC(ST)
     BALLARI-583 101
                                              ...RESPONDENTS.
(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1.)
                                      2




      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.1308/2020 (CRIME NO.29/2019 OF
GANDHINAGAR P.S. BALLARI) REGISTERED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 171-E OF THE INDIAN PENAL CODE,
1860 AND SECTION 123 OF THE REPRESENTATION OF THE PEOPLE
ACT, 1951, PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, BALLARI, ETC.,.

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


                                ORDER

The petitioner calls in question the proceedings in

C.C.No.1308/2020, pending on the file of Prl. Civil Judge and

JMFC, Ballari, registered for the offence punishable under

Section 171E of the Indian Penal Code, 1860 and section 123 of

the Representation of the People Act, 1951.

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 8.4.2019 results in

registration of the offence punishable under section 171E of the

Indian Penal Code, 1860 and Section 123 of the Representation

of the People Act, 1951, both of which are 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: