Mr Mohammed Rafiq vs The State Of Karnataka
2022 Latest Caselaw 7600 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

         CRIMINAL PETITION No.2723 OF 2021

BETWEEN

MR. MOHAMMED RAFIQ,
S/O MR. B.A.KHADER,
AGED ABOUT 40 YEARS,
R/A KALASA COFFEE CURING WORKS,
KALASA HOBLI, MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 124.
                                     ... PETITIONER
[BY SRI.P.P.HEGDE, SENIOR ADVOCATE FOR
    SRI.VENKATESH SOMAREDDI, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA,
      THROUGH THE SUB INSPECTOR OF POLICE,
      KALASA POLICE STATION,
      CHIKKAMAGALURU DISTRICT - 577 132.

2.   THE INSPECTOR OF POLICE,
     KUDREMUKHA CIRCLE,
     KUDREMUKHA, KALASA H.O., MUDIGERE,
     CHIKKAMAGALURU,
     KARNATAKA - 577 132.
     REPRESENTED BY THE
     STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA,
     BENGALURU - 560 001.
                                 ... RESPONDENTS
(BY SRI.K.NAGESHWARAPPA, HCGP.)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE CRIMINAL CASE
IN C.C.NO.268/2020 NOW PENDING ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, MUDIGERE
(ARISING OUT OF CR.NO.14/2019 OF KALASA P.S.
CHIKKAMAGALURU) REGISTERED FOR THE OFFENCE
P/U/S 9B(1)(B) OF EXPLOSIVE ACT, AND SEC.4, 6 OF
EXPLOSIVE SUBSTANCES ACT AND ALL FURTHER
PROCEEDINGS IN THE SAID CASE IN SO FAR AS
ACCUSED NO.1/PETITIONER HEREIN CONCERNED.

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

                       ORDER

The petitioner is before this Court calling in

question the proceedings in C.C.No.268/2020

registered for the offence punishable under Section

9(B)(1)(b) of the Explosives Act, 1884 and Sections 4

and 6 of the Explosive Substances Act, 1908.

2. Heard the learned senior counsel

Sri.P.P.Hegde, appearing for the petitioner and

Sri. K.N.Nageshwarappa, learned HCGP appearing

for the 1st respondent-State.

3. The brief facts leading to the filing of the

present petition as projected by the prosecution are

as follows:

A crime is registered against the petitioner in

Cr.No.14/2019, pursuant to which search is

conducted in the house of one Abdul Aziz and on

the basis of said search, the aforesaid complaint is

registered. After investigation, a charge sheet is

filed against the petitioner for the offences as

aforesaid. The learned Magistrate takes cognizance

of the offences alleged against the petitioner and the

matter is registered in C.C.No.268/2020.

Challenging the order of taking cognizance and all

further proceedings, the petitioner is before this

Court in the subject petition.

4. The learned senior counsel would restrict

his submission to the registration of the FIR by the

police without the permission from the learned

Magistrate. Prior to the said registration as

admittedly the offences punishable under the

aforesaid Acts are non-cognizable.

5. On the other hand, the learned High

Court Government Pleader on verification of the

documents and receipt of instructions would admit

that there was no communication sent even to the

learned Magistrate seeking permission prior to the

registration of the offences. However, he would

submit that the charge sheet is filed in the case at

hand by the police.

6. The afore-narrated facts are not in dispute.

The order of the learned Magistrate taking cognizance of

the offences is also not in dispute. The admitted fact in

the case at hand is that the FIR is registered even

without communication seeking permission at the

hands of the learned Magistrate.

7. It is trite law that for registration of a FIR on

non-cognizable offences express permission of the

learned Magistrate is required prior to registration of the

offences under Section 155(2) of the Cr.P.C. This is the

law laid down by this Court in plethora of judgments

and the latest one is in the case of VAGGEPPA

GURULINGA JANGALIGI (JANGALAGI) V/S. THE

STATE OF KARNATAKA reported in ILR 2020 KAR

630.

8. In the light of the admitted position, without

even seeking permission to register the FIR,

investigation and further proceedings taken against the

petitioner would become contrary to law as registration

of FIR without following the mandate under Section

155(2) of the Cr.P.C. cuts to the root of the matter.

9. For the aforesaid reasons, the following

ORDER

i) The Criminal Petition is allowed.

ii) The proceedings of the criminal case in

C.C.No.268/2020 pending on the file of the

Additional Civil Judge and JMFC Court at

Mudigere (arising out of Cr.No14/2019) of

Kalasa Police Station is hereby quashed

qua the petitioner.

Sd/-

JUDGE

JS/-