Karnataka High Court

Sri. Alavuddin Sollapure Wrongly ... vs The State Of Karnataka on 22 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 22ND DAY OF FEBRUARY 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.100492/2022

BETWEEN
1.   SRI. ALAVUDDIN SOLLAPURE WRONGLY SHOWN AS
     ALLAVUDDIN MAHAMMADALI SOLLAPURE
     AGED ABOUT 49 YEARS, OCC. COOLIE,
     R/O. KUDACHI, TQ. RAIBAG,
     DIST. BELAGAVI.

2.   SMT RAZIYA SOLLAPURE WRONGLY SHOWN AS
     SMT. RAJIYA ALLAVUDDIN SOLLAPURE,
     AGED ABOUT 44 YEARS, OCC. COOLIE,
     R/O. KUDACHI, TQ. RAIBAG,
     DIST. BELAGAVI.

3.   SRI ALIMURTUZA DADEPEER CHAMANMALIK WRONGLY
     SHOWN AS
     ALIMURTUJA DADEPIR CHAMANAMALIK
     AGED ABOUT 49 YEARS, OCC. BUSINESS,
     R/O. KUDACHI, TQ. RAIBAG,
     DIST. BELAGAVI.
                                         ...PETITIONERS
     (BY SRI RAMACHANDRA A. MALI, ADVOCATE)

AND :

THE STATE OF KARNATAKA
REP. BY KUDACHI POLICE STATION,
BELAGAVI DISTRICT,
NOW REP. BY STATE PP,
                                2




HIGH COURT OF KARNATAKA BUILDING,
DHARWAD BENCH, DHARWAD.
                                                ..RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)

     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE CHARGE SHEET AND THE ENTIRE
PROCEEDINGS IN C.C. NO.1748/2021 ARISING OUT OF
KUDACHI P.S. CRIME NO.118/2021 REGISTERED FOR THE
OFFENCE PUNISHABLE U/S 78(3) OF KARNATAKA POLICE ACT
ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, RAIBAG
IN SO FAR AS THE SAME RELATE TO THE PETITIONERS/A1 TO
A3 HEREIN, AS THE SAME BEING VITIATED, ILLEGAL AND NOT
SUSTAINABLE IN LAW IN VIEW OF THE LAW LAID DOWN BY
THIS HON'BLE COURT.

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

                           ORDER

Heard Shri Ramchandra A.Mali, the learned counsel

appearing for the petitioners. The learned HCGP is directed to

accept notice for the respondent-State and is heard in the

matter.

2. The petitioners are before this Court calling in

question the proceedings in C.C.No.1748/2021, pending on the

file of Addl. Civil Judge and JMFC, Raibag, 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 21.08.2021 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 petitioners 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: