Melwin Vishwas D Souza vs The State Of Karnataka
2022 Latest Caselaw 1332 Kant

                            1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 31ST DAY OF JANUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL PETITION No.6643/2021

BETWEEN

MELWIN VISHWAS D SOUZA
S/O PATRICK D SOUZA,
AGED ABOUT 34 YEARS,
R/AT 3-25-11, ELYAR PADAVU HOUSE
AMBLAMOGARU HOUSE
MANGALURU TALUK - 575 017
(IN THE CHARGE STEET HIS NAME IS SHOWN AS
VISHWAS D SOUZA)                          ...PETITIONER

(BY SRI. LETHIF B, ADVOCATE (VIDEO CONFERENCE))

AND


1.    THE STATE OF KARNATAKA
      BY ULLALA POLICE STATION,
      D.K.DISTRICT,
      REP. BY THE S.P.P,
      HIGH COURT BUILDING,
      BENGALURU-560001.

2.    POLICE SUB-INSPECTOR
      ULLALA POLICE STATION,
      ULLALA,
      MANGALURU TALUK,
      DAKSHINA KANNADA DISTRICT PIN - 575 003.

                                         ...RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP)
                                   2



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C.NO.2829/2019 ON THE FILE
OF J.M.F.C.-VII COURT, MANGALURU FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 78 AND 80 OF KARNATAKA
POLICE ACT OF ULLALA POLICE STATION, WHICH IS PRODUCED
AT ANNEXURE-A.

     THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING THROUGH VIDEO CONFERENCING THIS DAY, THE
COURT MADE THE FOLLOWING:

                             ORDER

This petition by petitioner-accused No.3 is filed under

Section 482 of Cr.P.C. for quashing the criminal

proceedings against the petitioner in C.C No.2829/2019

pending on the file of JMFC-VII Court, Mangaluru, for the

offences punishable under Sections 78 and 80 of

Karnataka Police Act, registered in crime No.232/2018 by

Ullal Police Station.

2. The case of the prosecution is that one H.D.

Kabbal Raj, CCB Police Sub Inspector, Ullal Police Station,

Mangaluru, received a credible information on 06.12.2018

that some persons were playing cricket match betting

through laptop at Monthero House, Chembugudde, and on

the basis of the information, at 12.00 noon, the

complainant along with his staff went to the spot and on

seeing the accused persons, he filed a complaint to the

Ullal Police Station. On the basis of the complaint, the

police registered NCR case against unknown three persons

and sent requisition to the Magistrate and obtained

permission. Thereafter, conducted raid on the premises

and arrested accused Nos.1 and 2. Subsequently, the

police arrested the petitioner-accused No.3 and produced

before the Court. After registering FIR and after

completion of investigation, charge sheet has been filed.

The petitioner, being aggrieved by filing of the charge

sheet against him, has filed the present criminal petition

before this Court.

3 Learned Counsel for the petitioner submits that,

after receiving the information, the informant-CCB Police

Sub Inspector filed a complaint to the police, who in turn

registered NCR case and sent a requisition to the

Magistrate and the Magistrate has endorsed on the

requisition giving permission, which is not correct as per

the guidelines issued by the learned Single Bench of this

Court as well as the Criminal Rules of Practice. The

learned Counsel further submits that there is grave

violation of the provisions contained in Section 155 of

Cr.P.C. Therefore, registering FIR and filing charge sheet,

without obtaining proper permission, is not sustainable.

The learned Counsel also submits that the petitioner was

not at all present at the place of incident. The petitioner

thereafter filed a bail petition and subsequently, obtained

bail and hence, prays for quashing of the criminal

proceedings.

4. On the contrary, learned High Court Government

Pleader, submits that the investigation officer received

credible information in respect of cricket betting and

informed the respondent police, who in turn registered

NCR case and sent requisition to the Magistrate. The

Magistrate accordingly gave permission and subsequently,

FIR was registered and charge sheet was filed. Therefore,

there is no violation of the provisions of Section 155 of

Cr.P.C. or the guidelines issued by the learned Single

Bench of this Court.

5. Having heard learned Counsel for the parties and

on perusal of the records, it reveals that one Sri. H.D.

Kabbal Raj, CCB Sub Inspector of Police, Mangaluru,

received credible information on 06.12.2018 that some

persons namely, Kiran and Kishore as per the directions of

Vikas were playing cricket betting using laptop. After

receipt of information, the complainant went to the spot

and found the aforesaid accused persons and therefore, he

filed a complaint to the respondent police. the respondent

police after registering the NCR Case sent a requisition to

the Magistrate and the Magistrate issued permission to the

Police Inspector and endorsed on the order sheet

'permission is accorded'. Subsequently, the police

registered FIR and apprehended accused Nos.1 and 2 and

seized mobile phones and laptop. Accused Nos.1 and 2

said to be released on bail and charge sheet has been

filed.

6. Learned Counsel for the petitioner has relied on

the decision of this Court in the case of VAGGEPPA

GURULINGA JANGALIGI (JANGALAGI) VS. THE

STATE OF KARNATAKA, THROUGH PSI, KAGWAD

POLICE STATION, BELAGAVI reported in ILR 2020

KAR 630, wherein this Court in similar cases has

elaborately issued guidelines after considering Chapter V

Rule 1 of Karnataka Criminal Rules of Practice, which deals

with investigation of non-cognizable cases. This Court in

the aforesaid judgment, at paragraphs 19 to 21, has held

as under:.

19. Chapter V Rule 1 of Karnataka Criminal Rules of Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:--

"INVESTIGATION AND PROSECUTION *1. Report under Section 154.--

(1) On receipt of the report of the Police Officer under Section 154 of the

Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.

2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted."

20. Therefore, under Rule 1, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the Police Officer or the Police Officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr. P.C., and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.

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.

21. Coming to the case on hand, the SHO of Kagwad Police Station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P. Act which is a non-cognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:--

"Perused materials. Permitted Sd/-"

7. On perusal of the requisition given by the police

on 06.12.2018, the Magistrate made an endorsement on

the requisition stating that three persons were involved in

betting on cricket match at Monthero house in Permannur

village and hence, permission was accorded. On bare

reading of the permission given by the Magistrate, it does

not reveal that FIR required to be registered or

investigation in the matter is required to be conducted.

Simply, the Magistrate has stated that permission is

accorded. After going through the requisition, there is no

separate order sheet found for obtaining permission and

even the police after obtaining permission, arrested the

accused persons, registered a case against the accused for

the purpose of taking cognizance. It is well settled that in

case of a non cognizable offence, the police after receiving

information have to enter or cause to be entered the

substance of such commission in a book maintained by

such Officer and then refer the informant to the Magistrate

for the propose of getting permission under Section 155

(1) and (2) of Cr.P.C. Then Magistrate should accord

permission to register FIR and to conduct investigation in

the matter under Section 155(2) of Cr.P.C.

8. Perusal of the criminal proceedings and the

records, there was no procedure followed by the police

officer while registering the FIR and also subsequently

while filing of charge sheet against petitioner-accused

No.3. Therefore, granting permission by the Magistrate

suffers from irregularity and the same requires to be

quashed.

9. Therefore, the criminal the petition is allowed.

The criminal proceedings in C.C. No.2829/2019 on the file

of JMFC, VII Court, Mangaluru against the present

petitioner is hereby quashed.

Sd/-

JUDGE

Cs