Karnataka High Court
Sri,. Alimurtuza Dadapeer ... 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.100496/2022
BETWEEN
SRI ALIMURTUZA DADAPEER CHAMANMALIK
WRONGLY SHOWN AS
ALIMURTUJA DADEPIR CHAMANAMALIK,
AGED ABOUT 49 YEARS, OCC. BUSINESS,
R/O. KUDACHI, TQ. RAIBAG,
DIST. BELAGAVI.
...PETITIONER
(BY SRI RAMACHANDRA A. MALI, ADVOCATE)
AND :
THE STATE OF KARNATAKA
REP. BY KAGWAD POLICE STATION,
BELAGAVI DISTRICT,
NOW REP. BY STATE P.P.,
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.1186/2021 ARISING OUT OF
KAGWAD P.S.CRIME NO.135/2021 REGISTERED FOR THE
OFFENCE PUNISHABLE U/S 78(3) OF KARNATAKA POLICE ACT
ON THE FILE OF CIVIL JUDGE AND JMFC, KAGWAD IN SO FAR
2
AS THE SAME RELATE TO THE PETITIONER 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 petitioner. The learned HCGP is directed to
accept notice for the respondent-State and is heard in the
matter.
2. The petitioner is before this Court calling in question
the proceedings in C.C.No.1186/2021, pending on the file of
Civil Judge and JMFC, Kagwad, 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 25.08.2021 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
petitioner 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:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in C.C.No.1186/2021 pending on
the file of Civil Judge and JMFC, Kagwad, stand
quashed qua the petitioner.
SD
Ckk JUDGE
