Mahadevaswamy K L vs State Of Karnataka By
2022 Latest Caselaw 7252 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 12TH DAY OF MAY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           CRIMINAL PETITION No.4057 OF 2022
BETWEEN

1.   MAHADEVASWAMY K L
     S/O LINGANNA,
     AGED ABOUT 51 YEARS,
     NO.69, 10TH WARD,
     KARINANJANAPURA VILLAGE,
     SOMAVARAPELE POST,
     CHAMARJANAGARA DISTRICT,
     KARNATAKA 571313.

2.   SHANKARA
     S/O VENKATA NAYAKA,
     AGED ABOUT 30 YEARS,
     NAYAKARA STREET, KASABA HOBLI,
     CHAMARAJANAGARA TALUKU,
     RAMASAMUDRA CHAMARAJANAGAR TOWN,
     CHAMARAJANAGAR
     KARNATAKA 571313.

3.   MADAN @ MADAN N
     S/O NAGANNA,
     NANJANGUDU TALUKU,
     VATAGERE POST,
     VTC HARATHALE,
     DISTRICT MYSORE,
     STATE KARNATAKA 571315.

4.   BASAVANAYAKA @ BASSUNAIKA
     S/O LATE KALAYANAKA,
     AGED ABOUT 42 YEARS,
     MUDINAPALYA POST,
     CHAMARAJANGAR TALUK,
     KARNATAKA 571127.

5.   SHANKAR M
     S/O MAHADEVAIAH,
     AGED ABOUT 42 YEARS,
     DODA BIDI,
                               2


       CHAMARAJANGARA TALUKU,
       AMBEDKAR BADAVANE,
       RAMASAMUDRA,
       CHAMARAJANAGAR,
       KARNATAKA 571342.

6.     CHANDRA BABU @ CHANDRA BABU B
       S/O BILLAIAH,
       AGED ABOUT 39 YEARS,
       AMBEDKAR STREET,
       RAMASAMUDRA RURAL,
       RAMASAMDURA,
       CHAMARAJANGAR,
       KARNATAKA 571342.

7.     MAHENDRA
       S/O BANGARA NAYAKA,
       AGED ABOUT 27 YEARS,
       SUBEDAR KATTE BEEDI,
       RAMASAMUDRA,
       RAMASAMUDRA,
       CHAMARAJANAGAR
       KARNATAKA 571342.

8.     MAHADEVASWAMY
       S/O ANNAMAIAH,
       AGED ABOUT 30 YEARS,
       DR B R AMBEDKAR BADAVANE,
       RAMASAMUDRA,
       RAMASAMUDRA RURAL
       CHAMARAJANAGAR,
       KARNATAKA 571342.

9.     MALLESHA @ MADAPPA
       S/O LATE MALLAPPA,
       AGED ABOUT 52 YEARS,
       LINGAYITHARA STREET,
       UDIGALA VILLAGE,
       HARAVE HOBALI,
       UDIGALA CHAMARAJANAGAR,
       KARNATAKA 571313.


10 .   RAVI @ RAVINDRAPPA
       S/O NANJUNDAPPA,
       AGED ABOUT 38 YEARS,
       LINGAYITHARA STREET,
       UDIGALA VILLAGE HARAVE HOBLI,
       UDIGALA, CHAMARAJANAGAR,
                               3


       KARNATAKA 571313.

11 .   HARISHA @ HARISH KUMAR R.M
       S/O DORESWAMY @ MADEVAIAH P.
       AGED ABOUT 27 YEARS,
       AMBEDKAR BADAVANE,
       KASABA HOBLI,
       CHAMARAJANAGARA,
       KARNATAKA 573111

12 .   MOHAN @ MOHAN KUMAR H
       S/O HANUMAIAH,
       AGED ABOUT 38 YEARS,
       SISSAIAHNAPURA,
       ATTAGULIPURA,
       CHAMARAJANAGARA,
       KARNATAKA 571127.

13 .   KUMAR D L @ D L KUMARACHARI
       D L KUMARACHARI,
       S/O LATE LINGACHARI,
       AGED ABOUT 54 YEARS,
       URDU SCHOOL NEAR,
       HARADANAHALLI VILLAGE,
       HARADANAHALLI
       CHAMARJANAGAR,
       KARNATAKA 571127.

14 .   RAJU
       S/O BASAVARAJU,
       AGED ABOUT 37 YEARS,
       1ST CROSS,
       MAHADESHWARA EXT,
       CHAMARAJANAGARA,
       KARNATAKA 571313.

15 .   PRABHU @ PRABHUSWAMY
       S/O JAMES,
       AGED ABOUT 42 YEARS,
       NO.611, DR AMBEDKAR STREET
       1ST CROSS, NEAR CHAWADI,
       RAMASAMUDRA,
       RAMASAMUDRA RURAL,
       CHAMARAJANAGARA,
       KARNATAKA 571342.

16 .   GANESHA @ GANESHA D
       S/O LATE DODDAIAH,
       AGED ABOUT 42 YEARS,
                                   4


       AMBEDKAR STREET,
       DODDAMOLE,
       CHAMARAJANAGARE
       KARNATAKA 571127.

17 .   MAHADEVAIAH
       S/O KUNMATHAIAH
       AGED ABOUT 45 YEARS,
       3/186/138,
       AMBEDKAR STREET,
       THALAVADI,
       TALAVADI ERODE,
       TAMILNADU 638461.

18 .   MARISWAMY C
       S/O LATE CHIKKAMADAIAH,
       AGED ABOUT 46 YEARS,
       HARIJANAS NEW STREET,
       HARALE,
       SARGUR KOLLEGAL, KOLLEGAL,
       CHAMARAJANAGAR,
       KARNATAKA 571440.

19 .   PRADEEPA @ PRADEEP KUMAR
       S/O CHIKKA MADAIAH,
       AGED ABOUT 45 YEARS,
       NEW KARINANJINAPUR EXTENSION,
       CHAMARAJANAGARA,
       CHAMARAJANAGARA TOWN,
       KARNATAKA 571313.

20 .   KAMALESHA @ M KAMALESH
       S/O MUNISWAMY,
       AGED ABOUT 45 YEARS,
       DR B R AMBEDKAR EXTENSION,
       NO.14/153,
       CHAMARAJANAGAR,
       CHAMARAJANAGAR TOWN,
       KARNATAKA 571313.
                                         ...PETITIONERS
(BY SRI. M. SHARASS CHANDRA, ADVOCATE)

AND

STATE OF KARNATAKA BY
CHAMARAJANAGARA EAST PS.
(REP. BY SPP)
                                         ....RESPONDENT
(BY SRI. VINAYAKA, V.S., HCGP.)
                                 5



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.210/2021 OF
RESPONDENT CHAMARAJANAGARA EAST P.S., CHAMARAJANAGAR
WHICH IS PENDING ON THE FILE OF I A.C.J. AND J.M.F.C. AT
CHAMARAJANAGAR FOR THE OFFENCE P/U/S. 79 AND 80 OF
KARNATAKA POLICE ACT AGAINST THE PETITIONERS.

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

                            ORDER

Heard Sri Sharass Chandra, learned counsel appearing for

the petitioners and Sri Vinayaka V.S, learned High Court

Government Pleader appearing for the respondents-State.

2. The petitioners are before this Court calling in question

the proceedings in CR.No.210/2021, pending on the file of the I

Additional Civil Judge and JMFC, Chamarajanagar, 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, 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 Cr.No.210/2021, pending on

the file of the I Additional Civil Judge and JMFC,

Chamarajanagar, stand quashed qua the

petitioners.

Sd/-

JUDGE

MKM