H R J Gautham vs State Of Karnataka
2022 Latest Caselaw 7554 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF MAY, 2022

                      BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

      WRIT PETITION No.2814 OF 2022 (GM - RES)

BETWEEN

H.R.J.GAUTHAM,
S/O H.V.RAMESH,
AGED ABOUT 36 YEARS,
R/AT M.V.EXTN., HOSAKOTE TOWN,
BENGALURU RURAL - 562 114.
                                      ... PETITIONER
[BY SRI.H.N.VASUDEVAN, ADVOCATE)

AND

1.    STATE OF KARNATAKA,
      REPRESENTED BY
      KADUGODI POLICE STATION,
      WHITEFILED SUB DIVISION,
      REPRESENTED BY ITS
      STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDING,
      DR. B R AMBEDKAR VEEDHI,
      BENGALURU - 560 001.

2.    INSPECTOR OF POLICE,
      KADUGOID POLICE STATION,
      BENGALURU - 560 067.
                                   ... RESPONDENTS
(BY SRI.K.NAGESHWARAPPA, HCGP)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
                                2



SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR
NO.0121/2018 REGISTERED BY THE R-2 BEFORE THE
HONBLE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU RURAL DISTRICT VIDE
ANNEXURE - A AND SUBSEQUENT CHARGE SHEET IN
C.C.NO.11834/2019 VIDE ANNEXURE - C AND THE
ENTIRE PROCEEDINGS VIDE ANNEXURE - D AS AGAINST
THE    PETITIONER/ACCUSED   NO.1  FOR  ALLEGED
OFFENCE PUNISHABLE UNDER SECTION 78(1)(a)(vi) AND
80 OF THE KP ACT AND ETC.,

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                       ORDER

The petitioner is before this Court calling in

question the proceedings in C.C.No.11834/2019,

registered for offences punishable under Section 78 (1)

(a) (vi) and 80 of Karnataka Police Act, 1963, under

section of 66 of Information Technology Act,2000 and

Section 420 of IPC, 1860.

2. Heard Sri.H.N.Vasudevan, learned counsel

appearing for the petitioner and Sri.K.Nageshwarappa,

learned HCGP appearing for the respondents-State.

3. The learned counsel appearing for the

petitioner submits that the issue in the petition stands

covered by the judgment rendered by this Court in

Crl.P.No.967/2018 rendered in identical circumstances

and would further placed reliance upon the judgment of

co-ordinate bench of this Court in the case of Vaggeppa

Gurulinga Jangaligi. (Jangaligi) vs. The State Of

Karnataka reported in ILR 2020 Karnataka 630,

wherein the manner in which, the permission granted

by the Magistrate is found fault with. The finding of

fault by the co-ordinate bench of this Court on those

facts are identical to the facts obtaining in the case at

hand.

4. The coordinate bench of this Court in

Crl.P.No.967/2018 is held as follows:

"2. The learned counsel for the petitioners strenuously contends that none of the offence invoked by the police at the time of registering the FIR or the offence alleged in the charge sheet are attracted, on plain reading of the

charge sheet itself. Therefore, he contends that the entireproceedings deserves to be quashed.

3. The brief factual matrix of the case are as follows:

That on 16.4.2016 at about 8.00 p.m., on receipt of credible information, that some persons are betting for IPL Cricket Match between Gujarath Lions and Mumbai Indians, the Police Inspector attached to KTJ Nagar Police Station, Davanagere Central Circle, had been to Bagatsingh nagar, along with his staff went to a Lodge situated at P.B. Road and found in Room No.152 of the said Lodge were betting watching Television. Further, it is alleged that those two persons i.e., Rahul and Rakesh were in the said room, watching television and they have collected money from the public and not repaying the same as agreed. Therefore, the Police have arrested them and seized certain articles and after thorough investigation filed charge sheet.

4. As could be seen from the entire charge sheet papers, no independent witnesses have been examined with reference to the betting and who are all the persons who have participated in the betting and paid money to the accused

persons and how much money being paid or whether any complaint alleged was made in this regard or not. Therefore, there cannot be any clap without two hands, unilaterally, the accused cannot play gambling without the help of the public at large as mentioned in the complaint as well as in the charge sheet. None of the witnesses have been examined by the Police to show that who is the person who has actually misappropriated in not giving money back to them. Under the above said circumstances, when the offence itself is not constituted on the basis of the charge sheet papers, nothing remains for consideration and hence the proceedings deserves to be quashed.

5. One of the important aspect that has to be taken into consideration at the initial stage is that, the Police have registered a case for the offence punishable under section 420 of IPC, but there is absolutely no allegations of whatsoever in the FIR in order to attract Section 420 of IPC. Perhaps, it may be the reason the Police have invoked Section 420 of IPC without any substance so as to 5 avoid the provisions of Section 155(2) of Cr.P.C. and taking permission to investigate a non cognizable offence. The

attitude of the Police, in my opinion, has to be deprecated, if they act in such a manner. Further, the court has to view hereinafter seriously. Therefore, in my opinion, the Commissioner of Police has to take appropriate measure in this regard in properly guiding the Police officers who are in the helm of affairs during investigation.

6. Therefore, I am of the opinion that a copy of this judgment shall be marked to the Commissioner of Police so as to take appropriate action in properly guiding the Police Officers in this regard. Hence, I pass the following:

5. The coordinate Bench supra held that

inclusion of the offence punishable under Section

420 of IPC is made only to get over the rigor of

155(2) of Cr.P.C. In the case at hand, there are no

ingredients as obtaining in Section 415 of IPC for

the offence to become punishable under Section 420

of IPC. The offence allegedly on the facts of the case

can only be under the Karnataka Police Act, which

is admittedly non-cognizable offence.

6. In the light of the judgment rendered by

the Co-ordinate Bench (supra) and the judgment in

the case of ILR 2020 KARNATAKA 630, the following:

ORDER

The Writ Petition is allowed.

The proceedings in C.C.No.11834/2019 dated 08.05.2018 pending on the file of Additional Chief Judicial Magistrate, Bengaluru Rural District, strand quashed qua the petitioner.

Sd/-

JUDGE

JS/-