Karnataka High Court

Maruthi N vs The State Of Karnataka on 9 March, 2022

Bench: K.Natarajan

                           1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION No.7476 OF 2017

BETWEEN

1 . MARUTHI N
    S/O H NAGAPPA
    AGED ABOUT 28 YEARS

2 . HANUMANTHAPPA T
    S/O THIMMAIAH
    AGED ABOUT 35 YEARS

3 . THIMMAIAH H
    S/O POOJARI HANUMANTHAPPA
    AGED ABOUT 30 YEARS

4 . THIPPESWAMY K R
    S/O KASHIRAMAIAH
    AGED ABOUT 47 YEARS

   ALL ARE R/O KAMMATH MARIKUNTE
   CHALLAKERE TALUK
   CHITRADURGA DISTRICT-577 522.
                                          ... PETITIONERS
(BY SRI SHASHIDHARA R, ADVOCATE)

AND

1 . THE STATE OF KARNATAKA
    BY CHALLAKERE POLICE
    CHALLAKERE TOWN-577522
                             2



   REPRESENTED BY SPP
   HIGH COURT BUILDING
   BENGALURU - 01.

2 . H ANJANEYA
    S/O D HANUMANTHAPPA
    AGED ABOUT 38 YEARS

   R/O KAMMATH MARIKUNTE,
   CHALLAKERE TALUK
   CHITRADURGA DISTRICT-577 522.
                                           ... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1
 SRI E VEERESHA, ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE FINAL REPORT FILED BY
THE 1ST RESPONDENT IN CRIME NO.25/2017 REGISTERED BY
THE CHALLAKERE POLICE, CHALLAKERE AND ALSO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.459/2017 PENDING ON THE
FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, CHALLAKERE.

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

                         ORDER

This petition is filed by the petitioners-accused Nos.1

to 4 under Section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C.No.459/2017 pending on the file of

Principal Civil Judge and JMFC, Challakere, Chitradurga

District in Crime No.25/2017 registered by Challakere

Police Station, Chitradurga for the offences punishable

under Sections 323, 504 and 34 of IPC.

2. Heard the arguments of learned counsel for the

petitioners and learned High Court Government Pleader for

respondent No.1-State. Learned counsel for respondent

No.2 remained absent.

3. The case of the prosecution is that on the

complaint of respondent No.2, the Police registered a case

on 20.01.2017 where it is alleged by him that on the night

of 16.01.2017 at about 11.45 p.m., when he came in his

car, he found some persons and this petitioner assembled

in a vacant site and drinking alcohol, when he questioned

the same, they abused him in a filthy language and they

said to be assaulted him on hands. After registering the

case, the Police filed the charge-sheet which is under

challenge.

4. Learned counsel for the petitioner has

contended that the alleged offence is non-cognizable

offence, no proper permission is granted by the Magistrate

for registering the case and to file the charge-sheet by the

Investigating Officer and petitioner No.1 himself filed a

complaint against the respondent and the said complaint

came to be filed as a counterblast. Hence, prayed for

allowing the petition.

5. Per contra, learned High Court Government

Pleader objected the same.

6. On perusal of the records, it is not in dispute

that the alleged offence which is stated in FIR is

punishable under Section 323 and 504 read with 34 of IPC

and those two offences are bailable and non-cognizable

offences. When the non-cognizable offence is made out in

the complaint, the Investigating Officer shall have to

obtain permission of the Magistrate under Section 155(2)

of Cr.P.C for registering the case and filing the charge-

sheet.

7. Learned counsel for the petitioner has

contended that though the Police official obtained the

permission, but the Magistrate without application of mind

issued the permission as permitted which is against the

law and the guidelines issued by the Co-ordinate Bench of

this Court in various cases. Hence, prayed for allowing the

petition.

8. Upon hearing the arguments, admittedly, the

offences under Section 323 and 504 is bailable and non-

cognizable offences where the Investigating Officer has

sent requisition to the Magistrate on 20.01.2017 seeking

permission to register a case. On the requisition, learned

Magistrate endorsed as 'permitted', which clearly reveals

that the Magistrate has not applied his mind while granting

such permission. The Co-ordinate Benches of this Court

has taken similar view in various cases, in the case of

Vaggeppa Gurulinga Jangaligi vs. The State of

Karnataka through PSI, Kagwad Police Station,

Belagavi in Criminal Petition No.101997/2019 dated

10.12.2019 and in the case of Moin Basha Kurnooli vs.

The State of Karnataka in Crl.P.No.100319/2014

dated 25.07.2014 and this Court in the case of Nithin

Kumar vs. State of Karnataka in Crl.P.No.6484/2021

dated 16.02.2022. The guidelines issued by the Court in

the case of Vaggeppa Gurulinga Jangaligi stated supra

at paragraph No.20 of the judgment which is as under:

"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."

9. The co-ordinate Bench of this Court as well as

this Court has held in various cases that if the Magistrate

made an endorsement as 'permitted' and granted

permission without application of mind the criminal

proceedings is not sustainable under the law and it cannot

be considered as a valid permission under Section 155(2)

of Cr.P.C.

10. Accordingly, criminal petition is allowed.

11. The criminal proceedings against the

petitioners-accused Nos.1 to 4 in C.C.No.459/2017

pending on the file of Principal Civil Judge and JMFC,

Challakere, Chitradurga District in Crime No.25/2017