Sri Ningareddy Hanumareddy ... vs The State Of Karnataka
2022 Latest Caselaw 3667 Kant

                           -1-


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF MARCH 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV

             CRIMINAL PETITION NO.9995/2021
Between:

SRI NINGAREDDY HANUMAREDDY KONAREDDY
S/O HANUMAREDDY KONAREDDY
AGED ABOUT 52 YEARS
OCCUPATION - EX-MLA
RESIDING AT NEAR DYAMAVVANA GUDI
CHILAKAVADA, NAVALAGUNDA
TALUK NAVALAGUNDA
DISTRICT DHARAWAD
PIN CODE 582208.                            ...PETITIONER

(BY SRI BAGOJI VIJAYAKUMAR GURAPPA, ADVOCATE)

And:

1.     THE STATE OF KARNATAKA
       BY NAVALAGUND POLICE STATION
       DHARWAD DISTRICT
       REPRESENTED BY HIGH COURT
       GOVERNMENT PLEADER
       HIGH COURT BUIDING, AMBEDKAR BEEDI
       BENGALURU 560 001.

2.     SRI M.R.SHANABHAG
       AGED ABOUT 57 YEARS
       MAGISTRATE FLYING SCOD - 69, NAVALGUND
       OFFICE OF THE SUPERINTENDENT
       ENGINEER (ELECTRICAL)
       KARNATAKA ELECTRICAL SUPPLY
       NIGAM LIMITED, HUBBLLI
       TALUK HUBBALLI
       DISTRICT - DHARAWAD.                 ...RESPONDENTS

(BY: SRI R.D.RENUKARAD, HCGP
      R2 - SERVED)
                                 -2-


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO:

      (I) QUASH ALL THE PROCEEDINGS IN C.C.NO.30794/2021 ON
THE FILE OF 42ND ACMM COURT, BENGALURU CITY, BENGALURU FOR
THE OFFENCE PUNISHABLE UNDER SECTION 171(H) OF IPC AND
UNDER SECTION 133 OF THE REPRESENTATION OF PEOPLE ACT,
(II) QUASH CHARGE SHEET FILED IN C.C.NO.30794/2021 ON THE
FILE OF 42ND ACMM COURT AT BENGALURU PRODUCED AT
ANNEXURE-B, (III) QUASH THE FIR IN CR.NO.108/2021 FILED BEFORE
THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND JUDICIAL MAGISTRATE
FAMILY COURT, NAVALAGUND, DHARAWAD, WHICH HAS BEEN
PRODUCED AT ANNEXURE-C REGISTERED BY THE RESPONDENT NO.1
AND (IV) QUASH THE COMPLAINT WHICH HAS BEEN PRODUCED AT
ANNEXURE-D FILED BY THE RESPONDENT NO.2 WITH THE
RESPONDENT NO.1 AND AWARD THE COSTS OF THE PETITION.

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

                                ORDER

The petitioner has sought for quashing of FIR in Crime

No.108/2021. Further, he has also sought for quashing of

charge sheet filed by respondent No.1 in

C.C.No.30794/2021 and has also sought for quashing of the

entire proceedings in C.C.No.30794/2021 pending on the

file of XLII Additional Chief Metropolitan Magistrate,

Bengaluru as regards the offences punishable under Section

171H of IPC and Section 133 of the Representation of

People Act, 1950.

2. It is the case of the petitioner that FIR came to

be registered in Crime No.108/2008 of Navalgund Police

Station as regards the offence punishable under Section 133

of the Representation of People Act on the basis of the

complaint filed by Mr.M.R.Shanbhag, Officer of Flying

Squad, who has been arrayed as second respondent in this

petition.

3. It is further submitted that once the information

was made out to the Magistrate, permission for

investigation as envisaged under Section 155(2) of Cr.P.C.

requires the Magistrate to pass an order permitting the

Police Officer to investigate a non-cognizable case. It is

pointed out that the offence punishable under Section 171H

of IPC is a non-cognizable offence and so also the offence

under Section 133 of the Representation of People Act,

1950.

4. It is contended that the Magistrate, prior to

granting of permission is required to follow the procedure as

prescribed under Section 155 of Cr.P.C. In this regard,

reliance is placed on the decision of this Court in the case of

Vaggeppa Gurulinga Jangaligi (Jangaligi) v. The State of

Karnataka reported in ILR 2020 KAR 630.

5. It is pointed out that when permission was given

by the Magistrate, the directions made by this Court in the

case of Vaggeppa (supra) has not been followed. It is

further pointed out that the direction issued by this Court in

the said case is a declaration and reiteration of the legal

position. Once permission is sought for investigation, it

needs to be noted that mere endorsement 'permitted' is not

sufficient and there has to be due application of mind.

The directions passed in the case of Vaggeppa (supra)

though is a subsequent decision details the correct

procedure to be followed.

6. It must also be noticed that even for the purpose

of obtaining permission from the Magistrate, the informant

must be referred to the Magistrate and the Police Authority

themselves cannot approach the Magistrate for obtaining

the sanction.

7. It is also noticed that the information made out

to the Police Authorities regarding the commission of

offence is enclosed at Annexure-D and the same is

addressed to the Police Authorities.

8. Insofar as the contention that permission given

by the Magistrate is contrary to the mandate under Section

155(2) of Cr.P.C, the said contention requires to be

accepted. This Court, in the case of Vaggeppa (supra)

has pointed out the procedure to be followed while granting

permission for investigation. Relevant observations made by

the Co-ordinate Bench of this Court at paragraph No.20 of

the said decision is extracted hereunder:-

"20. Therefore, under Rule I, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, the 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 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."

9. Clearly, the requirement that is made out is that

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 and direct the office to place

it before him with a separate order sheet. The Court has

clarified that no order should be passed on the requisition

itself and that the entry to be made in that regard is to be

made in the order sheet and the said order sheet should be

continued for further proceedings. Further direction has

been passed at sub-para (iv) of paragraph No.20 of the

judgment extracted above which also requires the

Magistrate to examine the contents of the requisition and

record a finding as to whether it is a fit case to be

investigated and that if the Magistrate finds that it is not a

fit case to be investigated, he shall reject the prayer made

in the requisition. It is further pointed out that only after his

subjective satisfaction that there is a ground to permit the

Police Officer to take up the investigation, he shall record a

finding to that effect permitting the Police Officer to

investigate the non-cognizable offence.

10. It is also clarified that Annexure-D is the plea

made by the second respondent. In accordance with the

mandate under Section 155(2) of Cr.P.C., the informant is

to be referred to the Magistrate which is preceded by the

officer in-charge of the police station having made out

necessary entry of the substance of the information in the

book kept as mandated under Section 155 of Cr.P.C. The

Magistrate is to examine the informant and the complaint

given by him and then proceed further.

11. In light of the discussion made hereinabove, the

order of Magistrate granting permission for investigation is

set aside and the proceedings subsequent thereto are set

aside. The matter is relegated to the stage of informant

being referred to the Magistrate in terms of the procedure

prescribed under Section 155(1) of Cr.P.C. Further, the

observations made in para-20(v) of the decision in the case

of Vaggeppa (supra) is required to be adhered to by the

Magistrate, who has to apply his mind as to whether

permission for investigation needs to be granted and

accordingly, it would not be appropriate in the present

proceedings to address the other contentions raised by the

petitioner.

Accordingly, the petition is disposed off subject to

the observations made hereinabove.

Sd/-

JUDGE

VGR