G Mohammed Shareef @ Kunta Shafeef vs The State Of Karnataka
2023 Latest Caselaw 9749 Kant

Karnataka High Court

G Mohammed Shareef @ Kunta Shafeef vs The State Of Karnataka on 8 December, 2023

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                         NC: 2023:KHC:44691
                                                  CRL.P No. 12782 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                        BEFORE
                      THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        CRIMINAL PETITION NO. 12782 OF 2023
               BETWEEN:

               G. MOHAMMED SHAREEF @ KUNTA SHAFEEF,
               S/O. LATE B. ABDULLA,
               AGED ABOUT 54 YEARS,
               R/AT NO. 2-166, GOLIMAR HOUSE,
               GANADA BETTU, KANNUR,
               MANGALORE, D.K. DISTRICT - 575 007.
                                                              ...PETITIONER
               (BY SRI. LETHIF B., ADVOCATE)

               AND:

                    THE STATE OF KARNATAKA,
                    BY MANGALORE SOUTH POLICE STATION,
                    D.K. DISTRICT,
Digitally signed by REP. BY SPP,
PADMAVATHI B K
                    HIGH COURT BUILDING,
Location: HIGH
COURT OF            BANGALORE - 560 001.
KARNATAKA
                                                             ...RESPONDENT
               (BY SRI. K.P. YASHODHA, HCGP)

                    THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
               OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE
               ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN
               S.C.NO.150/20232 (CRIME NO.241/2019) OF MANGALURU
               SOUTH POLICE STATION, FOR THE OFFENCE PUNISHABLE
               UNDER SECTION 143, 147, 148, 152, 353, 332, 307, 120B,
               109 READ WITH 149 OF IPC, ON THE FILE OF III ADDITIONAL
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                                                     NC: 2023:KHC:44691
                                                CRL.P No. 12782 of 2023




DISTRICT AND SESSIONS JUDGE, MANGALORE WHICH IS
PRODUCED AT ANNEXURE-A IN THE ABOVE CASE.

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

Heard Sri.Lethif B., learned counsel appearing for the

petitioner and Smt. K.P.Yashodha, the learned HCGP appearing

for the respondent.

2. The petitioner is before this Court, seeking for the

following prayer:

"Wherefore, the Petitioner prays that this Hon'ble Court be pleased to quash the entire proceedings against the petitioner in S.C.No.150/20232 (Crime No.241/2019) of Mangaluru South Police Station for the offence punishable under Section 143, 147, 148, 152, 353, 332, 307, 120B, 109 r/w 149 of IPC on the file of III Additional District and Sessions Judge, Mangalore which is produced at Annexure-A in the above case, in the interests of justice."

3. The learned counsel appearing for the petitioner

would submit that the issue in the lis stands covered by the

judgment rendered by this Court in the case of ATAVULLA

JOKATTE AND OTHERS Vs. THE STATE OF KARNATAKA

AND ANOTHER1, this Court has held as follows:

Crl.P.No.9417/2022 disposed on 26.09.2022

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"The petitioners are before this Court calling in question proceedings in C.C.No.1373/2020 registered for offences punishable under Sections 143, 147, 148, 152, 353, 332, 307, 120B, 109 read with Section 149 of the IPC 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:

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

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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 offences relating to documents given in evidence

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(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

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188 of IPC. In para 8 of the judgment in State of 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.

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

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:

ORDER

i. Criminal Petition is allowed.

ii. Impugned proceedings pending in C.C.No.1373/2020 before the II JMFC Court, Mangaluru stands quashed.

Consequently, I.A.No.1/2022 stands disposed.

4. In the light of the issue standing covered by

judgment rendered by this Court and the facts being

undisputed, the petition stands disposed on the same terms.

Sd/-

JUDGE

CPN CT: BHK