Karnataka High Court

Balaraj vs The Station House Officer on 2 June, 2022

Bench: M.Nagaprasanna

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 02ND DAY OF JUNE, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.4821/2022

BETWEEN

1.   BALARAJ
     S/O LATE RANGEGOWDA,
     AGED ABOUT 60 YEARS,
     R/O H.NO.14,
     5TH MAIN, 5TH BLOCK
     KAMUKA LAYOUT,
     BANGALORE SOUTH
     BANGALORE - 560 070

2.   NAGESH
     S/O RAJEGOWDA
     AGED ABOUT 51 YEARS,
     R/O SANNENAHALLI KOPPALU
     SHRAVANABELAGOLA HOBLI,
     CHANNARAYAPATNA TALUK,
     HASSAN DISTRICT - 573 135

3.   BASAVARAJU M.G.
     S/O GANGEGOWDA
     AGED ABOUT 61 YEARS,
     R/O MULLAKERE VILLAGE,
     NUGGEHALLI HOBLI,
     CHANNAYAPATNA TALUK
     HASSAN DISTRICT - 573 131

4.   KRISHNEGOWDA
     S/O SHIVANNA
     AGED ABOUT 50 YEARS,
                             2



      R/O AMBHIKANAGARA MACON CROSS,
      CHANNARAYAPATNA TOWN - 573 116

5.    RAMESHA M.A.
      S/O APPAJIGOWDA
      AGED ABOUT 50 YEARS,
      R/O GHANDI CIRCLE,
      RAMAKRISHNA LAYOUT,
      CHANNARAYAPATNA TOWN - 573 116

6.    MANU B K
      S/O LATE KRISHNEGOWDA
      AGED ABOUT 40 YEARS,
      R/O BAGUR VILLAGE,
      CHANNARAYAPATNA TALUK
      HASSAN DISTRICT - 573 111

7.    DINESH C N
      S/O NAGARAJEGOWDA
      AGED ABOUT 41 YEARS,
      R/O CHIKKAGANI VILLAGE,
      KASABA HAOBLI,
      CHANNARAYAPATNA TALUK
      HASSAN DISTRICT - 573 116.
                                         ... PETITIONERS

[BY SRI. GIRISH B. BALADARE, ADVOCATE]


AND

1.    THE STATION HOUSE OFFICER
      CHANNARAYAPATTANNA TOWN POLICE
      CHANNARAYAPATTANNA
      HASSAN DISTRICT - 573 116

2.    THE STATE OF KARNATAKA
      BY CHANNARAYAPATNA
      TOWN POLICE STATION
      CHANNARAYAPATANNA
                                 3



       HASSAN DISTRICT
       REPRESENTED BY
       PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       BANGALORE - 560 001
                                                    ... RESPONDENTS

[BY SRI. K.S. ABHIJITH, ADVOCATE]

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO UASH THE CHARGE SHEET FILED AGAINST
PETITIONERS IN CR NO. 26/2022 BY THE CHANNARAYAPATNA CITY
POLICE, FOR THE OFFENCE PUNISHABLE U/S 79, 80 OF THE
KARNATAKA POLICE ACT 1963 PENDING ON THE FILE OF PRL
CIVIL JUDGE AND JMFC COURT AT CHANNARAYAPATNA, HASSAN
DISTRICT IN CC NO. 329/2022.

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

                               ORDER

Heard the learned counsel Sri. Girish B. Baladare,

appearing for the petitioners and the learned High Court

Government Pleader for the respondents.

2. The petitioners are before this Court calling in

question the proceedings in C.C.No.329/2022, pending on the

file of the Principal Civil Judge and JMFC Court,

Channarayapatna, Hassan District, registered for the offences

punishable under Sections 79 and 80 of the Karnataka Police

Act, 1963, which are non-cognizable offences.

3. In the light of the fact that the said offences were non-

cognizable, FIR could not have been registered against the

petitioners on such offences, without at the outset seeking

permission from the hands of the learned Magistrate under

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

4. It is an admitted fact that in the case at hand, no

such permission is sought from the Magistrate to register the

FIR or conduct investigation. The issue stands covered by the

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

Crl.P.No.101632/2021 and connected cases, disposed of on

21.9.2021, wherein this Court has held as follows:

"4. The main ground of attack by the petitioner in respective petitions is that the offence alleged is under Section 78(3) of K.P. Act. 1963 and it is a non cognizable offence. Before proceeding to investigate the offence the Police ought to have taken prior permission from the concerned court as required under Section 155(2) of Cr.P.C. Therefore, there is no compliance of Section 155(2) of Cr.P.C. It is further contended that even if the permission from the Magistrate was obtained, it is not in accordance with the guidelines issued in Vaggeppa

Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in ILR 2020 KAR 630. Learned HCGP has contended that in some of the cases, the Police have obtained permission of the concerned court and then investigated the matter and filed the charge sheet. He further contended that the Police have taken the care to comply mandatory requirements and then only they have proceeded with the matter and ultimately filed the charge sheet.

5. Co-ordinate Bench of this court in the case of Moin Basha Kurnooli V/s. The State of Karnataka, By Cowl Bazaar Police Station, reported in 2014 (4) KCCR 3355 elaborately considered the provisions of Section 155 (2) and 155(3) of Karnataka Police Act and held that offence under Section 78(3) of K.P. Act is a non cognizable offence. Investigation of cases under Section 78(3) of K.P. Act and all further proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.

6. In view of the law laid down in the aforesaid decisions, the Police have taken prior permission from the jurisdictional Magistrate to investigate a non cognizable offence as required under Section 155(2) of Cr.P.C.

7. In crime No.151/2020 of Ranebennur Rural Police station, the FIR came to be registered for the offence under Sections 78(3) of K.P. Act and Section 420 of IPC and charge sheet has been filed only for the offence under Section 78(3) of K.P. Act. Section 420 of IPC is invoked only to get over requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation to attract ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioner or other accused persons named in the FIR. In the said crime No.151/2020 the Police have not obtained permission of the jurisdictional Magistrate as contemplated under Section

155(2) of Cr.P.C. Therefore, the prosecution of the petitioner for the alleged offence is an abuse of process of court.

8. The coordinate Bench of this court in the case of Vaggeppa Gurulinga Jangaligi (supra) after elaborately considering Section 155(1) and (2) of Cr.P.C. and Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 has issued guidelines to be followed by judicial Magistrate. The said guidelines are as under:

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.

9. In Crime No.93/2020 of Guttal Police Station the Police gave requisition seeking permission to investigate a non cognizable offence and the learned Magistrate on the same day has issued intimation as granted permission to investigate a non cognizable offence.

10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave requisition and on the same requisition, the learned Magistrate has made endorsement as "permitted to register the case".

11. On looking to the said aspects, it is clear that the learned Magistrate has not followed the guidelines laid down in Vaggeppa case (supra). By looking to the said endorsement, there is no application of judicious mind by the learned Magistrate. Under the circumstances, the proceedings initiated against the petitioner in the following cases cannot sustain in law and accordingly, they are quashed."

5. 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.329/2022, pending

on the file of the Principal Civil Judge and JMFC

Court at Channarayapatna, Hassan District qua

the petitioners.