Karnataka High Court
Sri. Akash S/O Raju Khode vs The State Of Karnataka on 23 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 100511 OF 2022
BETWEEN
1. SRI. AKASH S/O RAJU KHODE,
AGE. 26 YEARS, OCC. PRIVATE WORK
R/O. VIJAY NAGAR, SYNDICATE BANK,
HUBBALLI.
2. SRI. AKASH S/O. MANJUNATH CHAVAN
AGE. 26 YEARS, OCC. BUSINESS MAN
R/O. KAMARIPETH 3RD CROSS,
HUBBALLI.
3. SRI. MANJUNATH S/O. VENKUSA IRKAL,
AGE. 29 YEARS, OCC. PRIVATE JOB,
R/O. MAHAVEER GALLI, MURUSAVIRAMATH,
HUBBALLI.
4. SRI. AKSHAY S/O. ARAVIND KAMAKAR
AGE. 25 YEARS, OCC. PRIVATE JOB,
R/O. MARATHA GALLI,KARIYAMMADEVI TEMPLE,
HUBBALLI.
5. SRI. MAHAMMADSABEEL S/O. MOHAMMADHANIF SHEIK
AGE: 38 YEARS, OCC: REAL ESTATE
R/O: MYADAR ONI,HUBBALLI
6. SRI. ARJUN S/O. SHIVARAJ
JAMADAR AGE: 31 YEARS
OCC: SALES MAN, R/O. KALADAGI ONI,
HUBBALLI.
7. SRI. AMRUT S/O. KASHINATH SHINDE
AGE: 27 YEARS,OCC: STUDENT,
R/O. MARATHA GALLI,
2
DECCAN TALKIES OPPOSITE,
HUBBALLI.
...PETITIONERS
(BY SMT ANUSHA SANGAMI, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY POLICE INSPECTOR
POLICE STATION KESHWAPUR
HUBBALLI, DIST. DHARWAD-580001
REP.BY THE SPP, HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE COGNIZANCE DATED 09.11.2021 AGAINST
THE ACCUSED NO.1, 2, 4, 13 TO 16/PETITIONERS AS FILED BY
KESHWAPUR POLICE STATION, HUBBALLI IN CRIME NO.60/2021
WHICH IS SUBSEQUENTLY REGISTERED IN CC NO.2710/2021
PENDING BEFORE THE JMFC II COURT AT HUBBALLI FOR THE
OFFENCES PUNISHABLE U/S 269 OF IPC AND SECTION 80 OF
KARNATAKA POLICE ACT 1963.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
The petitioners are before this Court calling in
question the proceedings in C.C.No.2710/2021 pending
before the JMFC-II Court at Hubli.
2. Heard Smt.Anusha Sangami, learned counsel for
the petitioners and Sri.Ramesh Chigari, learned HCGP for
the respondent-State.
3. Brief facts leading to the filing of the present
petition as borne out from the pleadings are as follows:
On receipt of credible information of the alleged
incident by the complainant-Police Inspector, during his
patrolling duty, that some unknown persons were playing
cards by violating pandemic lockdown restriction, a raid
was conducted and several articles were seized and
accordingly, complaint was registered for offences
punishable under Sections 269 of IPC and Section 80 of the
Karnataka Police Act. The police after investigation have
filed charge sheet dropping Section 188 of IPC, but
retaining Section 269 of IPC and Section 80 of the
Karnataka Police Act. It is at that juncture, the petitioners
have knocked the doors of this Court.
4. The issue with regard to registration of the
offences as aforesaid under Section 269 of IPC and Section
80 of the Karnataka Police Act need not detain this Court or
delve deep into the matter, as the issue stands covered by
the judgment rendered by the Co-ordinate Bench of this
Court in the case of Mr.Vishwesh Madane V/s. The
State of Karnataka, Tarikeri Police Station in
Crl.P.No.5185/2021 disposed on 19.07.2021 has held as
follows:
"7. The complainant on receipt of
credible information has lodged a
complaint, which has resulted in
registering FIR against the accused
persons for the offence punishable under
Section 80 of the Karnataka Police Act,
1963, Sections 269 and 271 of IPC and
Section 5(1) of the Karnataka Epidemic
Diseases Act, 2020.
8. Reading of the complaint
averments would clearly go to show that
the ingredients for the purpose of
attracting Section 269 of IPC is completely
absent. The petitioners were all found in a
hotel room and therefore, it cannot be said
that they were guilty of unlawfully or
negligently doing any act which they know
or they have reason to believe that it is
likely to spread the infection of any
disease dangerous to life. It is not the
case of the prosecution that any one of the
accused persons had tested Positive for
COVID-19 and in the absence of any such
material, the offence under Section 269 of
IPC cannot be prima facie invoked as
against the accused persons.
9. In the judgment relied upon by
the learned counsel for the petitioner in
Crl.A.No.453/2020 rendered by the High
Court of Bombay, Nagpur Bench, it has
been held that unless the ingredients,
which would attract Section 269 of IPC,
are found in the complaint averments, the
said provision of law cannot be invoked.
Further, this Court in Criminal Petition
No.2089/2021 DD 08.07.2021 has held
that deliberate attempt to invoke Section
269 of IPC with an intention to avoid
obtaining permission under Section 155(2)
of Cr.P.C. for registration of a case for
non-cognizable offences cannot be
permitted. Except Section 269 of IPC, the
other offences invoked in the present case
are all non-cognizable in nature and
therefore, prior permission under Section
155(2) of Cr.P.C. is mandatory in nature.
In the case on hand, such permission has
not been obtained by the prosecution.
Further, though it is alleged that the
petitioner was indulged in a game of
chance, the complaint averments do not
state as to how the prosecution has come
to a conclusion that the game of cards
allegedly played by the petitioner was a
game of chance and not a game of skill.
10. Under the circumstances, I am
of the considered opinion that the
prosecution has abused the process of law
by registering a criminal case against the
petitioner invoking the alleged offences
and therefore, for the purpose of securing
the ends of justice, it is necessary to
quash the same. Accordingly, I proceed to
pass the following;
ORDER
This Criminal Petition is allowed. The
entire proceedings in Crime No.153/2021
registered by the Tarikere Town Police
Station, Chikkamagaluru, for the offences
punishable under Section 80 of the
Karnataka Police Act, 1963, Sections 269
and 271 of IPC and Section 5(1) of the
Karnataka Epidemic Diseases Act, 2020
pending on the file of Principal Civil Judge
(Sr.Dn.) and C.J.M., Tarikere,
Chikmagaluru, is quashed as against the
petitioner.
In view of disposal of the petition,
pending I.A. does not survive for
consideration. Accordingly, it stands
disposed of.
Earlier to the aforesaid judgment, a Co-ordinate Bench of
this Court in Crl.P.No.7388/2020 disposed on 02.02.2021
has held as follows:
"7. On perusal of the FIR, case is
registered against the unknown persons
and the same was registered at about
04:00 p.m., after the arrest, the FIR was
also sent to the Court at 05:00 p.m.,
Having perused the complaint, there is a 6
force in the contention of learned counsel
for the petitioners that only in order to
take the advantage of non-compliance of
Section 155 (1) and (2) of Cr.P.C., the
prosecution has invoked Section 269 of
IPC.
8. No doubt, there was a lock down
on the date of the incident and when the
credible information was received, the
prosecution ought to have registered the
case invoking Section 154 of Cr.P.C. It is
also important to note that though raid
was conducted at 03:00 p.m., the FIR was
registered at 04:00 p.m. Further, the FIR
also discloses that the case was registered
against unknown persons.
9. Complaint discloses that on
12.04.2020, at about 03:30 p.m.
complainant and his staff went to the spot
and apprehended these petitioners.
Material available on record are contrary
to each other and hence, this is a fit case
to exercise power under Section 482 of
Cr.P.C., to quash the proceedings initiated
against the petitioners for noncompliance
of Section 155(2) of Cr.P.C., Records also
disclose 7 that though cognizable offence
was taken place, FIR was not registered
and before registering the FIR, alleged raid
was conducted .
10. In view of the discussions made
above, I pass the following:
ORDER
Petition is allowed. The proceedings
initiated against the petitioners in
C.C.No.471/2020 are hereby quashed. "
5. The aforesaid position in law is not in dispute.
Therefore, the Criminal Petition is allowed following the
judgments rendered by the Co-ordinate Benches supra.
Hence, the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in C.C.No.2710/2021
pending before the JMFC-II Court at Hubli stands
quashed qua the petitioners.
SD
JUDGE
Vb/-
