Satish Keshav Naik vs Sub-Inspector Of Police
2022 Latest Caselaw 1286 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 31st DAY OF JANUARY 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO. 101823/2021

BETWEEN

SATISH KESHAV NAIK,
AGE. 39 YEARS, POLICE CONSTABLE,
R/O.UPPONI, TQ. HONNAVAR,
DIST. UTTARA KANNADA.
                                            ...PETITIONER
(BY SRI A.P.HEGDE JANMANE AND
SRI VIJAY M.MALALI, ADVOCATES)

AND :

1.   SUB-INSPECTOR OF POLICE,
     MANKI POLICE STATION, MANKI,
     TQ. HONNAVAR, DIST. UTTARA KANNADA.

2.   NAGARAJ NARAYAN GOWDA,
     AGE. 30 YEARS, PRIVATE WORK,
     R/O. MOLKOD, TQ. HONNAVAR,
     DIST. UTTARA KANNADA.
                                          ...RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR RESPONDENT NO.1)

     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE FIR REGISTERED BY MANKI STATION AS
PER MANKI P.S. CRIME NO.35/2019 AND CHARGE SHEET AND THE
ENTIRE CRIMINAL PROCEEDINGS IN C.C.NO. 1031/2021 PENDING
ON THE FILE OF JMFC COURT, HONNAVAR.
                                  2




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

                               ORDER

The petitioner calls in question the proceedings in

Criminal Case No.1031/2021 registered for the offences

punishable under Sections 504 and 506 of IPC.

2. Heard Sri A.P.Hegde, learned counsel appearing for

the petitioner and Sri Ramesh Chigari, learned HCGP

appearing for respondent No.1-State.

3. Brief facts leading to filing of the present petition as

borne out from the pleadings are as follows :

The 2nd respondent registers a complaint before the 1st

respondent-Police alleging that he received a telephone call

from an unanimous number at about 11.00 p.m., who appears

to have spoken and hurled abuses in a filthy language and

threatened him for his life with respect an incident that had

occurred on 19.03.2019. Based upon the said complaint for

the offences punishable under Sections 504 and 506 of IPC

was registered against the petitioner. The charge sheet after

investigation has also been filed in the case at hand.

4. Sections 504 and 506 of IPC are non-cognizable

offences, is not in dispute. Therefore, in terms of Section

155(2) of the Cr.P.C. FIR with regard to a non-cognizable

offence could not have been registered against the petitioner

without at the outset seeking approval from the hands of the

Magistrate. It is also an admitted fact that approval from the

Magistrate is not taken prior to the registration of the FIR in

the case at hand. Therefore, the entire proceedings that have

taken place after registration of FIR would lose their legs to

stand.

5. It is germane to notice plethora of judgments rendered

on the aforesaid issue of registration of an FIR on a non-

cognizable offence without approval of the Magistrate

interpreting Section 155(2) of Cr.P.C. One such Judgment

rendered by the co-ordinate bench is in the case of Sri

Munirathna vs. State of Karnataka and another, Criminal

Petition No.8219/2019 disposed on 18.03.2022, wherein

this Court has held as follows.

"5. In the light of the contentions urged, two questions emerge for consideration namely, (1) Whether the failure to comply with the requirements of section 155(2) of Cr.P.C.

is an incurable defect amounting to illegality vitiating the entire proceedings? (2) Whether the Magistrate has power to drop proceedings under section 258 of Cr.P.C. in a summons case after recording the substance of accusations?

6. In order to answer the above questions, it may be necessary to note the outline facts of the case leading to initiation of criminal action against the petitioner. According to the prosecution, on 06.05.2018, when the complainant was monitoring the election for Malleswaram constituency, he received credible information that a Bharat Benz vehicle bearing registration No.TN.39.CD.7267 was chased from R.R.

Nagar and was made to halt at Ashwathnagar, 19 kms. away from R.R.Nagar. The said vehicle was surrounded by public. Complainant took assistance of the police and led the vehicle along with the driver to Sadashivanagar Police Station. The vehicle was found

with 5018 T-Shirts printed with photographs of accused No.1 along with Congress Party Symbol and also contained 23,393 half-pants with bills pertaining to the same.

7. On submission of the charge sheet, learned VII ACMM, Bengaluru took cognizance of the offences under sections 171E, 171B read with 149 of IPC and section 123 of RP Act. Since the petitioner herein was a sitting MLA, in view of notification issued by the High Court of Karnataka, records were transmitted to the Court of Special Judge and the case was numbered as Spl.C.C.No.398 of 2019 and summons were issued to accused Nos.1 to 9. On 21.09.2019, substance of accusations under sections 171B, 171E read with 149 of IPC and section 123 of RP Act were framed and read over to the accused. Accused did not plead guilty and case was posted for recording of evidence on 10.10.2019. At that stage, petitioner herein/accused No.1 through his counsel and accused Nos.2 to 7 and 9 filed an application under section 258 of Cr.P.C. seeking to drop the proceedings. The said application was filed mainly on the ground that there was no compliance of section 155 of Cr.P.C. and therefore, very prosecution of the petitioner was illegal and without authority of law. However, by order dated 21.11.2019, the Special Court exclusively dealing with criminal cases related to elected MPs./MLAs in

the State of Karnataka rejected the application and proceeded with the matter.

8. Undeniably, the offences alleged against the petitioner are non-cognizable offences. Section 155 of the Cr.P.C. deals with the procedure for investigation and cognizance of non-cognizable cases. It reads as under:

"Section 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."

As per the above provision, when an Officer-in-charge

of the police station received the information as to the commission of non-cognizable offence, (i) he shall enter or cause to enter the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, sub-section (2) of section 155 Cr.P.C. mandates that no Police Officer shall investigate a non- cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.

9. A perusal of the records reveal that in the instant case, respondent No.1 - Police have utterly failed to comply with the requirements laid down in Sections 155(1) and 155(2) of Cr.P.C. There is nothing in the FIR or in the requisition submitted to the learned Magistrate to indicate that, on receipt of information, respondent No.1 - Police recorded the substance of information as mandated. There is also nothing on record to show that the respondent referred the informant to the concerned Magistrate as required under section 155(1) of Cr.P.C. and obtained necessary order as envisaged under section 155(2) Cr.P.C. before embarking upon investigation. Thus, on the face of it, the respondent No.1 - Police has committed blatant violation of the provisions of sections 155(1) and 155(2) of Cr.P.C.

10. In STATE OF HARYANA vs. BHAJAN LAL (1992) 1 SCC Supp. 535, the Constitution Bench of the Hon'ble Supreme Court has laid down the circumstance in which proceedings could be quashed under Section 482 Cr.P.C. Sl.No.4 thereof provides that:

"(4) Where, the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code."

11. There is no dispute with regard to the fact that in the instant case, all the material allegations made in the FIR constituted only non-cognizable offence. Under the said circumstances, in the absence of an order of Magistrate as contemplated under section 155(2) of Cr.P.C., no investigation was permissible under law. The contention of the learned SPP-II that prior permission of learned Magistrate was obtained before embarking upon the investigation does not salvage the situation. I have gone through the said requisition and the endorsement made therein. By no stretch of imagination, such an endorsement can be construed as an "order" within the meaning of section 155(2) Cr.P.C. It is noticed that in the margin of the requisition a rubber stamp is affixed reading

'Permitted', and the Magistrate has subscribed his initial and date underneath the stamped portion. Considering the identical endorsement made in the requisition submitted to the learned Magistrate, this Court in AVINASH PRABHU & Others vs. THE STATE OF KARNATAKA, Criminal Petition No.563/2013 dated 28.05.2019 has held, in para 3, as under:

"3. Implication of such an endorsement has been considered by this Court in PRAVEEN BASAVANNEPPA SHIVALLI vs. THE STATE OF KARNATAKA and others in W.P.No.102248/2016 dated 11.07.2016 and it has been held that such an endorsement is not 'an order' in the eye of law and in view of the prohibition contained in sub-section (2) of Section 155 Cr.P.C., the investigation made and the consequent charge- sheet filed by the investigating agency is illegal and cannot be sustained."

These defects, therefore, completely vitiate the proceeding initiated against the petitioner. Non- adherence of the statutory requirements is one of the grounds to quash the proceedings as held in Bhajan Lal's case referred to supra and therefore, the argument of learned SPP-II that the alleged defect is only a curable defect and is protected under section 460 of Cr.P.C. has no legs to stand."

6. In the light of the undisputed facts and the

aforementioned Judgment rendered by the coordinate Bench

in Criminal Petition No.8219/2019 disposed on 18.03.2020,

the following :

ORDER

(i) The criminal petition is allowed.

      (ii)    The         impugned             proceedings           in

              CC.No.1031/2021          on    the   file   of      JMFC,

Honnavar stands quashed qua the petitioner.

SD/-

JUDGE CKK