Mr. Ravichandran. R @ Ravi @ Batte ... vs State Of Karnataka
2022 Latest Caselaw 10719 Kant

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                                                            CRL.P No. 5759 of 2022


                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                               DATED THIS THE 13TH DAY OF JULY, 2022
                                                 BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                CRIMINAL PETITION NO. 5759 OF 2022
                      BETWEEN:

                      1.    MR. RAVICHANDRAN. R
                            @ RAVI @ BATTE RAVI
                            S/O. RAJASHEKAR,
                            AGED ABOUT 34 YEARS,
                            R/AT PATELA SHETTAPPA STREET,
                            DEVANAHALLI TOWN,
                            BANGALORE RURAL DISTRICT,
                            BANGALORE-562 011.

                      2.    MR. AMBARISH. K. M.
                            S/O. ANNAYAPPA,
                            AGED ABOUT 36 YEARS,
                            R/AT KAMASHETTIHALLI VILLAGE,
                            KASABA HOBLI,
                            CHIKKABALLAPURA TALUK,
                            CHIKKABALLAPURA-562 101.

                      3.    MR. SUNIL. A
                            S/O. ANNAYAPPA,
                            AGED ABOUT 25 YEARS,
Digitally signed by
PADMAVATHI B K              R/AT MANCHINABALE VILLAGE
Location: HIGH              AND KAMASHETTIHALLI VILLAGE,
COURT OF                    KASABA HOBLI,
KARNATAKA
                            CHIKKABALLAPURA TALUK,
                            CHIKKABALLAPURA-562 101.

                      4.    SRI. KUMAR
                            S/O. LATE MUNINARAYANAPPA,
                            AGED ABOUT 39 YEARS,
                            R/AT ASHWINI LAYOUT,
                            CHINTHAMANI TOWN,
                            CHIKKABALLAPURA-563 125.
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                                       CRL.P No. 5759 of 2022



5.   SRI. PREETHAM
     S/O. NATARAJ,
     AGED ABOUT 36 YEARS,
     R/AT NO.601A, 22ND WARD,
     DVM COLONY, PRASHANTH NAGARA,
     DEVANAHALLI TOWN,
     BANGALORE RURAL-562 110.

                                                ...PETITIONERS
(BY SRI. RAJESHA SHETTIGARA.,ADVOCATE)

AND:

     STATE OF KARNATAKA
     BY CHIKKABALLAPURA RURAL P.S.,
     GOWRIBIDANURU CIRCLE,
     CHIKKABALLAPURA,
     REPRESENTED BY SPP,
     HIGH COURT OF KARNATAKA,
     BANGALORE-560 001.

                                                ...RESPONDENT
(BY SMT. K.P.YASHODHA, HCGP)

      THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE PROCEEDINGS OF C.C.NO.204/2022 ARISED OUT OF CRIME
NO.139/2020 INITIATED BY THE RESPONDENT POLICE PENDING ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
CHIKKABALLAPURA AS AGAINST THE PETITIONER (ACCUSED NO.1
TO 5) FOR OFFENCE P/U/S.78(III), 87 OF THE KARNATAKA POLICE
ACT, 1963 VIDE ANNEXURE-D.

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

                            ORDER

Heard Sri.Rajesha Shettigara, learned counsel appearing

for the petitioners and Smt.K.P.Yashodha, the learned High

Court Government Pleader appearing for the respondent.

CRL.P No. 5759 of 2022

2. The petitioners are before this Court calling in

question the proceedings in C.C.No.204/2022 registered for

offences punishable under Section 78(III), 87 of the Karnataka

Police Act, 1963.

3. Learned counsel appearing for the petitioners

submits that the issue in the lis stands covered by the

judgment rendered by the Co-ordinate Bench of this Court in

Crl.P.No.7735/2019, disposed on 26.02.2020, wherein this

Court on an identical issue has held as follows:

"3. Though this case is listed for hearing- interlocutory application, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.

4. On 23.09.2019 at about 8.00 a.m., respondent-police have received a credible information that two persons in M/s. P. M.

Enterprises Office indulged in betting the amount to the result of India and South Africa T-20 Match which was played on 22.09.2019 and thereby collecting the amount and have cheated them. On the basis of the said information, a raid has been conducted and thereafter, the case has been

CRL.P No. 5759 of 2022

registered against the petitioner/accused and other accused persons.

5. It is the submission of the learned Senior counsel that the registration of FIR after search, seizure and arrest of accused Nos.1 and 2 is contrary to the principles laid down by the Hon'ble Apex Court in the case of Lalitha Kumari Vs. Government Uttar Pradesh and reported in (2014) 2 SCC 1. It is his further submission that the information received was disclosing only the commission of an offence on betting and the offences registered are under Sections 79 and 80 of the Karnataka Police Act and the said offences are non-cognizable offences. The Investigating Officer without obtaining the order of permission as contemplated under Section 155(2) of Cr.P.C., he went and conducted the search and seizure without there being any warrant and permission. The said provision if it is not followed, it goes to the route of the case and the entire proceedings is nothing but an abuse of process of law. It is his further submission that the learned Magistrate has given the permission by making an endorsement 'permitted' that itself goes to show that he has not applied his mind to the information given by the informant and no enquiry has been conducted as required under Section 155(2) of Cr.P.C. It is his

CRL.P No. 5759 of 2022

further submission that the illegality and correctness goes to the route of the case and the continuation of the proceedings is abuse of process of law. On these grounds, he prayed to allow the petition.

      6.     Per        contra,         learned     High       Court
Government         Pleader    vehemently            argued      and

submitted that there is prima facie material as against petitioner/accused. It is not only the non- cognizable offence which has been mentioned in the FIR and he has also committed an offence under Section 420 of IPC, which is a cognizable offence, under such circumstances, Section 155 of Cr.P.C. is not applicable to the present facts on hand. It is his further submitted that at this pre- matured stage that too, when the investigation is still in progress, it is not a fit case to quash the proceedings. He further submitted that even though the learned Magistrate has made an endorsement 'permitted'. On cyclostyled paper, appears original signature that itself shows the application of mind. It is his further submitted that already the charge sheet has been filed. On these grounds, he prayed to dismiss the petition.

7. I have carefully and cautiously gone through the submissions made by the learned

CRL.P No. 5759 of 2022

counsel appearing for both the parties and perused the records.

8. As could be seen from the records, it indicates that on receipt of the credible information, two persons in M/S. P. M. Enterprises Office have indulged in betting the amount to the result of India and South Africa T-20 Match which was played on 22.09.2019 and a case has been registered under Sections 79 and 80 of The Karnataka Police Act. Admittedly, the said sections are non-cognizable offences in nature and the Investigating Officer knows about the non- cognizable offence has been committed by the accused, he has to follow the mandate as contemplated under Section 155(2) of Cr.P.C. and he has to obtain the necessary permission from the jurisdictional Magistrate to proceed in the matter by giving a requisition and obtain a permission. Though in the instant case, the permission has been obtained, the learned Magistrate has only made an endorsement to the effect 'permitted' that too, on a cyclostyled paper. That itself goes to show that without application of mind, he has passed the impugned order. As per Section 155(2) of Cr.P.C. it indicates that it is not a mere formality that the learned Magistrate has to peruse the records thereafter, by application of

CRL.P No. 5759 of 2022

mind has to make an endorsement that whether investigation is required in the case or not? If he has not applied his mind, then under such circumstance, it is not going to satisfy the mandate as contemplated under Section 155(2) of Cr.P.C.

9. Be that as it may. It is alleged that the petitioner/accused has committed an offence under Section 420 of IPC but when he received the information it is noticed that the petitioner/accused and other persons have indulged in betting of the amount to the result of India and South Africa T-20 Match. There are no specific allegations which have been made against him. The said betting has been done and the persons have cheated to constitute an offence under Section 420 of IPC. In the absence of such material, mentioning of Section 420 of IPC without there being any material, it also does not constitute an offence as contemplated under the law.

10. Be that as it may. If he has come to the conclusion that the petitioner/accused have cheated, then under such circumstances, he should have registered the case and thereafter he could have proceeded and made a search and seizure. If the said aspect is not done, then under

CRL.P No. 5759 of 2022

such circumstances, there will be violation of mandate issued by the Hon'ble Apex Court in the case of Lalitha Kumari (quoted supra).

11. In the said case it has been specifically observed that the registration of FIR is mandatory under Section 154. For the purpose of brevity, I quote paragraph No. 86 of the Lalitha Kumar's case (quoted supra) which reads as under:

            "86.Therefore,            conducting       an
     investigation     into      an     offence      after

registration of FIR under Section 154 of the Code is the "procedure established by law" and, thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law."

12. By going through the said proposition of law and the mandate of law as contemplated under Section 155(2) of Cr.P.C. it indicates that there is violation of illegality in committing the raid

CRL.P No. 5759 of 2022

by the respondent police. It is a fit case to exercise the power under section 482 of Cr.P.C.

13. In that light, petition is allowed and the FIR in Crime No.177/2019 of Halasuru Gate Police Station, Bengaluru pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 79 and 80 of Karnataka Police Act and also under Section 420 read with Section 34 of IPC are hereby quashed.

I.A. No.1/2020 does not survive for consideration. Accordingly, it is disposed off."

4. Learned HCGP would though seek to justify the

action on the score that the offence punishable under Section

66 of the Information Technology Act, 2008 also included at the

time of registration of the FIR and therefore, no fault can be

found with the registration of the crime, without the permission

of the learned Magistrate.

5. This submission is what is considered negative by

the co-ordinate Bench, in the afore-extracted judgment.

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CRL.P No. 5759 of 2022

6. In the light of the order passed by the

Co-ordinate Bench of this Court (supra) and for the reasons

aforementioned, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The proceedings in C.C.No.204/2022 arising out Crime No.139/2020 pending on the file of the Principal Civil Judge and J.M.F.C., Chikkaballapura stand quashed.

Sd/-

JUDGE

KG