Karnataka High Court

Sri. Bharath Kumar vs State Of Karnataka By on 24 May, 2022

Bench: M.Nagaprasanna

                              1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MAY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         CRIMINAL PETITION No.4185 OF 2022

BETWEEN

1.    SRI. BHARATH KUMAR
      S/O NARAYANA REDDY
      AGED ABOUT 29 YEARS
      R/A YALUVAHALLI
      INORAHOSAHALLI POST
      BANGARPET TALUK
      KOLAR DISTRICT-563114

2.    SRI SUBRAMANI
      S/O NARAYANAPPA
      AGED ABOUT 36 YEARS
      R/A K.G HALLY
      TEKAL POST, MALUR TALUK
      KOLAR DISTRICT                 ... PETITIONERS

[BY SRI. ABHILASH KUMAR. M.N., ADV. FOR
    SRI. M.R. NANJUNDA GOWDA, ADV.]

AND

STATE OF KARNATAKA BY
MASTI POLICE
KOLAR SUB DIVISION
REPRESENTED BY STATE PUBLIC PROSECUTOR
BENGALURU-560001
                                  ... RESPONDENT

[BY SRI. K.NAGESHWARAPPA, HCGP]
                                 2



    THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN CRIME NO.24/2022 OF MASTI P.S.
WHICH IS PENDING ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR. DN.) AND JMFC COURT, MALUR, KOLAR DIST
FOR THE OFFENCE PUNISHABLE U/S 78(1)(a)(vi) OF
KARNATAKA POLICT ACT.

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

Heard Sri Abhilash Kumar.M.N., learned counsel

appearing for the petitioners and the learned High Court

Government Pleader appearing for the respondent.

2. The petitioners are before this Court calling

in question the proceedings in Crime No.24/2022,

registered for offences punishable under Sections

78(1)(a)(vi) of the Karnataka Police Act, 1963, which is a

non-cognizable offence.

3. In the light of the fact that the said offence was

non-cognizable, FIR could not have been registered

against the petitioners on such offence, without at the

outset seeking permission from the hands of the learned

Magistrate.

4. It is an admitted fact in the case at hand

that 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 Crime No.24/2022 pending on the file of the Additional Civil Judge (Jr. Dn.) & JMFC Court, Malur, Kolar District stands quashed.