Dr. Shobha W/O Kranthi Kiran vs The State Of Karnataka
2022 Latest Caselaw 2971 Kant

           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. 100184/2021
        C/W.CRIMINAL PETITION NO.100538/2020

IN CRL.P.NO.100184/2021
BETWEEN

DR. SHOBHA W/O KRANTHI KIRAN,
AGE 48 YEARS, OCC DOCTOR,
R/O SHIRUR PARK, VIDYANAGAR,
HUBBALLI-580021,     TQ -HUBBALLI,
DIST- DHARWAD-580001.
                                           ...PETITIONER
(BY SRI S.C.JAINAR, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      THROUGH VIDYANAGAR POLICE STATION,
      R/BY STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      DHARWAD BENCH-580011.

2.    DR.KRANTI KIRAN S/O SIDDAPPA
      AGE 51 YEARS, OCC DOCTOR,
      R/O SHIRUR PARK, VIDYANAGAR,
      HUBBALLI-580031, TQ HUBBALI,
      DIST DHARWAD-580001
                                        ..RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NO.1)
(BY SRI M.L.VANTI, ADVOCATE FOR RESPONDENT NO.2)
                            2




     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN
CC.NO.3425/2019 PENDING ON THE FILE OF THE LEARNED 1ST
ADDL. CIVIL JUDGE AND JMFC, HUBBALLI FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 323, 504, 506 R/W 34 OF IPC,
IN SO FAR AS PETITIONER (ACCUSED NO.1) IS CONCERNED.


IN CRL.P.NO.100538/2020
BETWEEN

KIRAN S/O SHIVANAND KULKARNI
AGE: 27 YEARS, OCC: BUSINESS,
R/O: UNKAL CROSS, KLE IB, NEAR HUBBALLI-580031,
TQ: HUBBALLI, DIST: DHARWAD.
                                           ...PETITIONER
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      R/BY STATE PUBLIC PROSECUTOR,
      HIGH CORUT OF KARNATAKA,
      DHARWAD BENCH IN VIDHYANAGAR PS.

2.    DR.KRANTI KIRAN S/O SIDDAPPA
      AGE: 49 YEARS, OCC: DOCTOR,
      R/O: SHIRUR PARK, VIDHYANAGAR,
      HUBBALLI-580021, TQ: HUBBALLI,
      DIST: DHARWAD.
                                         ..RRESPONDENTS
      (BY SRI RAMESH CHIGARI, HCGP FOR R-1)
      (BY SRI M.L.VANTI, ADVOCATE FOR RESPONDENT NO.2)

     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.3425/2019 PENDING ON THE FILE OF THE LEARNED
1ST ADDL. CIVIL JUDGE AND JMFC, HUBBALLI FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 323, 504, 506 R/W 34
                                      3




OF IPC IN SO FAR AS PETITIONER (ACCUSED NO.2) IS
CONCERNED.

     THESE PETITIONS ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The learned counsel for the petitioners would submit

that since the offences allegaed in the case at hand are

under Sections 504 and 506 of IPC. Both of which are non

cognizable, FIR could not have been registered without at

the outset getting an approval from the Magistrate.

2. The issue stand covered by the plethora of

Judgments of co-ordinate benches of this Court, one of

which is in Writ Petition No.102248/2016, disposed on

11.07.2016, wherein this Court held as follows :

"8. The offences alleged by the 3rd respondent against the petitioner being non cognizable, N.C.No.2/2015 was registered by the police for the offences under Ss.504, 506 and 323 of IPC. Illegality has crept in the 2nd respondent seeking the permission of the Magistrate for investigation of the non-cognizable offences, instead of referring the informant to the police.

9. Sec. 155 of Cr.P.C. 1973 being relevant for ready reference, is extracted hereunder:

"155. Information as to non-cognizable cases and investigation of such cases. -

1. When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

2. 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.

3. Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

4. Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."

(underlining is for emphasis)

10. S.155 of Cr.P.C. deals with the procedure to be adopted in respect of the information received by the Officer in charge of a Police Station relating to commission of non cognizable offence. As per sub- section (1) of S.155 of Cr.P.C. when an Officer in charge of Police Station receives the information as to the commission of a non cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be maintained by such Officer in the prescribed form 'and refer the informant to the Magistrate'. Sub-section (2) of S.155 Cr.P.C. makes it clear, that no Police Officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit such case for trial. Sub-section (1) of S.155 Cr.P.C. which casts a duty on the Station House Officer, who receives information as to the commission of non cognizable offence to enter or cause to be entered the information in the prescribed book and refer the informant to the Magistrate, does not enable the SHO himself to approach the Magistrate and seek orders. The provision makes it clear, that the SHO shall refer the informant to the Magistrate, thereby, making clear that it is for the informant to seek the orders of jurisdictional Magistrate for issue of direction to the police for investigation of the case. The Magistrate, on being

approached by the informant, if orders investigation, the SHO concerned would get jurisdiction to register the crime, investigate the matter and not otherwise.

15. In the present case, 2? respondent having acted contrary to sub-section (1) of S.155 Cr.P.C. and the learned Magistrate having not passed 'an order', instead, having made an entry 'permitted', being not 'an order' in the eye of law and in view of the prohibition contained in sub-section (2) of S.155 Cr.P.C., the investigation made and the consequential charge-sheet filed for the offences under Ss.504, 506 and 323 of IPC and the taking of cognizance of those offences and the issue of non bailable warrant in the first instance itself for proceeding further with the case against the accused are absolutely illegal. It is obvious that the police and the Magistrate have not bothered to look into S.155 Cr.P.C. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent."

3. In the light of the issue being covered by the

foresaid Judgment rendered by a coordinate Bench of this

Court these proceedings stand obliterate against the

petitioners.

4. For the aforesaid reason, the following :

ORDER

(i) The criminal petitions are allowed.

(ii) The proceedings in Criminal Case

No.3425/2019 on the file of I Additional

Civil Judge and JMFC, Hubballi stands

quashed qua petitioners.

(iii) Finding in the case hand would not come in

the way of initiation of proceedings in

accordance with law.

SD JUDGE CKK