Karnataka High Court

Atavulla Jokatte vs The State Of Karnataka on 26 September, 2022

Bench: M.Nagaprasanna

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                                                            CRL.P No. 9416 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 26TH DAY OF SEPTEMBER, 2022

                                             BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                               CRIMINAL PETITION NO. 9416 OF 2022
                   BETWEEN:
                   1.   ATAVULLA JOKATTE
                        S/O. ABDUL RAHIMAN,
                        AGED ABOUT 45 YEARS,
                        R/AT NO. 3/191/2, ZAHARABAD HOUSE,
                        M.P. ROAD, JOKATTE, 62,
                        THOKUR VILLAGE, MANGALORE,
                        D.K. DISTRICT-575 030.

                   2.   ABDUL JALEEL. K @ JALEEL KRISHNAPURA
                        S/O. LATE CHEYYABBA,
                        AGED ABOUT 41 YEARS,
                        R/AT HOUSE NO. 1/13/1,
                        ASHRAF COTTAGE, YUSUF NAGAR,
                        KANNUR, MANGALORE,
                        D.K. DISTRICT-575 007,
                        NOW RESIDING AT FLAT NO. 201,
                        KAMALDEEPA APARTMENT, OLD KENT ROAD,
Digitally signed
by PADMAVATHI           PANDESHWARA, MANGALORE,
BK
                        D. K. DISTRICT-575 001.
Location: HIGH
COURT OF
KARNATAKA
                   3.   NAVAZ ULLAL,
                        S/O. LATE ISMAIL,
                        AGED ABOUT 44 YEARS,
                        R/AT MASTER COMPOUND,
                        MASTIKATTE ULLAL,
                        MANGALORE, D.K. DISTRICT-575 017.
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                                         CRL.P No. 9416 of 2022




4.   ABDUL MAJEED JOKATTE
     S/O. MOOSABBA,
     R/AT NEAR KBS, 62,
     THOKUR VILLAGE,
     MANGALORE, D.K. DISTRICT-575 030.

5.   MUJAIR AHAMMAD @ MUJAIR KUDROLI
     S/O. LATE HAMZA,
     R/AT HOUSE NO. 8-4-1210,
     C.P.C. COMPOUND,
     KUDROLI, MANGALORE,
     D.K. DISTRICT-575 003.

6.   NOWFAL KUDROLI
     S/O. HAMZA, R/AT HOUSE NO. 8-4-1210, C.P.C.
     COMPOUND, KUDROLI, MANGALORE,
     D.K. DISTRICT-575 003.

7.   MOHAMMAD SHARIF @ SHARIF PANDESHWARA
     S/O. HAMEED MOIDEEN,
     AGED ABOUT 39 YEARS,
     R/AT HOUSE NO. 19-5-321/1,
     H.M.S. COMPOUND,
     NEAR RAILWAY TRACK,
     PANDESHWARA,
     MANGALORE, D.K. DISTRICT-575 001.

8.   AFWAN ABDUL REHMAN
     S/O. ABDUL REHAMAN,
     AGED ABOUT 34 YEARS,
     R/AT S. A. MANZIL,
     SUNKADAKATTE, KADABA TALUK,
     D.K. DISTRICT-574 221.

                                               ...PETITIONERS
(BY SRI. LETHIF B.,ADVOCATE)
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                                     CRL.P No. 9416 of 2022




AND:
1.   THE STATE OF KARNATAKA
     BY MANGALORE NORTH P.S.,
     D.K. DISTRICT,
     REP. BY SPP, HIGH COURT BUILDING,
     BANGALORE-560 001.

2.   SRI. CHANDRASHEKARA
     ASSISTANT SUB INSPECTOR,
     MANGALORE SOUTH POLICE STATION,
     PANDESHWARA,
     MANGALORE,
     D.K. DISTRICT-575 001.
                                         ...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP)

     THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONER IN C.C.NO.1132/2020 IN CR.NO.240/2019 FOR
THE OFFENCE P/U/S 143,147,148,152,324, 353,332, 307, 120B,
109 R/W 149 OF IPC AND SEC.2(a),2(b) OF KPDLP ACT OF
MANGALORE SOUTH P.S., ON THE FILE OF THE II-JMFC,
MANGALORE WHICH IS PRODUCED AT ANNEXURE-A IN THE
ABOVE CASE.

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

The petitioners are before this Court calling in

question proceedings in C.C.No.1132/2020 registered for

offences punishable under Sections 143, 147, 148, 152,

324, 353, 332, 307, 120B, 109 read with Section 149 of

CRL.P No. 9416 of 2022

the IPC and Section 2(a), 2(b) of KPDLP Act pending

before the JMFC II Court, Mangalore.

2. Heard the learned counsel, Sri. Lethif B.,

appearing for the petitioners and the learned High Court

Government Pleader Sri.K.S.Abhijith, appearing for

respondent No.1 and have perused the material on record.

3. The learned counsel appearing for the

petitioners would submit that the issue in the lis stands

covered by the judgment rendered by this Court in

Crl.P.No.6314/2022, disposed on 29.07.2022. The learned

High Court Government Pleader would admit the position

that the issue stands covered by the aforesaid judgment,

wherein this Court has held as follows:

"3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, disposed on 18.06.2021. The learned High Court Government Pleader would admit the position that the issue stands covered by the aforesaid judgment, wherein the Co-ordinate Bench of this Court has held as follows:

CRL.P No. 9416 of 2022

4. The case of the prosecution in brief is as follows:

The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization.

When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for

CRL.P No. 9416 of 2022

offences relating to documents given in evidence

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

(ii) of any abetment of, or attempt to commit, such offence; or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of

CRL.P No. 9416 of 2022

Karnataka v. Hemareddy, the Hon'ble Supreme Court held as follows:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

(Emphasis supplied)

11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.

The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."

4. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed. ii. Proceedings pending in C.C.No.1137/2020 before the II JMFC Court, Mangalore, stands quashed qua the petitioners."

CRL.P No. 9416 of 2022

4. In the light of the order passed by this

Court supra, which covers the case at hand on all its fours, I

deem it appropriate to pass the following: