Karnataka High Court
Harish Babu vs State Of Karnataka on 8 December, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:44692
CRL.P No. 12231 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. 12231 OF 2023
BETWEEN:
HARISH BABU,
S/O VENKATA SWAMY,
AGED ABOUT 37 YEARS,
OCC: BUSINESS,
R/AT VINAYAKA NAGARA,
9TH CROSS, SHIKARIPURA TOWN,
SHIMOGA DISTRICT - 577 427.
...PETITIONER
(BY SRI. PRASAD B.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY SHIKARIPURA RURAL POLICE STATION,
Digitally signed by REPRESENTED BY SPP,
PADMAVATHI B K HIGH COURT BUILDING,
Location: HIGH
COURT OF BANGALORE - 560 001.
KARNATAKA
2. SMT. SHRUTHI N.S.,
W/O NOT KNOWN,
AGED ABOUT 40 YEARS, DYSP,
SHIKARIPURA TOWN,
SHIVAMOGGA - 577 427, KARNATAKA.
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP)
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NC: 2023:KHC:44692
CRL.P No. 12231 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE
ENTIRE PROCEEDINGS PENDING AGAINST THE PETITIONER
REGISTERED BY THE RESPONDENT NO.1 POLICE IN THE FILE
OF THE COURT OF PRINCIPAL DISTRICT AND SESSIONS JUDGE
SHIVAMOGGA IN S.C.NO.766/2021 FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 9 B(1)(B) OF EXPLOSIVE ACT
1884, SECTION 3(1) 44(2) OF KARNATAKA MINOR MINERAL
CONCESSION RULE, 1994 AND SECTION 3, 4 OF EXPLOSIVE
ACT BY ALLOWING THE PETITION FILED BY THE PETITIONER.
THIS CRIMINAL PETITION, COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. B.S.Prasad, learned counsel appearing for the
petitioner and Smt. K.P.Yashodha, the learned HCGP appearing
for the respondents.
2. The petitioner is before this Court, seeking for the
following prayer:
"Wherefore it is humbly prayed that this Hon'ble Court
may be pleased quash the entire proceedings pending
against the petitioner registered by the respondent No.1
police in the file of the Court of Prl.District and Sessions
Judge, Shivamogga in SC.No.766/2021 for the offences
punishable under Sections 9 B(1)(b) of Explosive Act
1884, Section 3(1) 44(2) of Karnataka Minor Mineral
Concession Rule 1994 and Section 3 & 4 of Explosive At
by allowing the petition filed by the petitioner in the
interest of justice and equity."
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 SMT. SHILPA
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Vs. THE STATE OF KARNATAKA1, this Court has held as
follows:
"The petitioner is before this Court calling in
question the proceedings in Spl.C.No.766/2021,
registered for offences punishable under Sections
9B(1)(b) of Explosive Act, 1884, Section 3(1), 44(2) of
Karnataka Minor Mineral Concession Rule, 1994 and
Section 3 and 4 of Explosive Substance Act, 1908.
2. The learned counsel appearing for the
petitioner submits that the issue in the case at hand
stands covered by the judgment rendered by the Co-
ordinate Bench of this Court on similar set of facts
interpreting the very offences that are alleged against the
petitioner. The Co-ordinate Bench of this Court in the case
of Crl.P.No.7634/2016 disposed on 14.06.2017, has held
as follows:
"The brief factual matrix that emanate from the
record are that, the Police Sub-Inspector attached to
Malebennur Police Station, was directed by the Deputy
Superintendent of Police, Davangere Taluk, to investigate
a particular case. As per the said direction, it is said that
on 17.07.2015, the Deputy Superintendent of Police
received a credible information that within the jurisdiction
of Davanagere Rural Police Station near Aluru village,
some persons are running stone quarry and they are
using explosives like detonators, Ammonium Nitrate etc.
for the purpose of exploding the stones without there
being any authority, licence or permission from the
Government. On the basis of such information, the Police
Sub Inspector collected the panchwitnesses, went to the
spot and found that stone quarry was running and one
Shivanna @ Post Shiva Kumar (petitioner), was blasting
the stones by using detonators and other explosive
substances. In the presence of panchwitnesses, it
appears, he conducted panchanama and collected the
materials used for explosion and came back to the Police
Station and thereafter registered a case in Crime
No.248/2015 under Section 9B(1)(b) of the Explosive Act,
1884, Section 3(a) of Explosive Substance Act 1908,
Crl.P.No.5778/2022 disposed on 30.06.2022
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Section 21 of MMRD Act, Sections 42 and 44 of KMMC
Rules 1994 and Sections 379 and 420 of IPC and handed
over the investigation to the Police Sub-Inspector, Law
and Order, Davanagere Rural Police Station.
3. The above said proceedings are questioned
before the Court on two grounds, viz., (i) The offence
under Section 9B(1)(b) of the Explosive Act, 1884, is a
non-cognizable offence and the police officer has no
jurisdiction to investigate any offence which is non-
cognizable without taking permission of the Magistrate as
per Section 155(2) of the Code of Criminal Procedure. (ii)
Subsequently on 20.07.2015, Police Sub Inspector has
made a request to the jurisdictional Magistrate to
incorporate other offences under Section 3(a) of Explosive
Substance Act, 1908, Section 21 of MMRD Act and
Sections 42 and 44 of KMMC Rules, 1994 and Sections
379 and 420 of the Indian Penal Code. If the police have
to incorporate these offences, they should not have
investigated the matter without registering the case under
those provisions, which are said to be cognizable
offences. On the aforesaid two grounds, the proceeding is
illegal and the same is liable to be quashed.
4. There is no doubt that when a police officer
receives an information with regard to a cognizable
offence, then there is no need for the police officer to take
any permission from the Magistrate under Section 155(2)
of Code of Criminal Procedure. However, if the
information is only with reference to a non-cognizable
offence and police officer wants to investigate the matter,
then it is mandatory under Section 155(2) of the Code
that the police officer shall refer himself to the Magistrate
and take permission for the purpose investigating the
matter.
5. The law also mandates under Section 155 of
Cr.P.C. that, the procedure should be followed by the
Investigating Officer before referring the complainant to
jurisdictional Magistrate for permission . It says,-
"When information is given to an officer in charge
of a police station of the commission within the limits of
such station of a non-cognizable offence, he shall enter or
cause to be entered the substance of the information in a
book to be kept by such officer in such form as the State
NC: 2023:KHC:44692
Government may prescribe in this behalf, and refer the
informant to the Magistrate."
Sub-clause (2) of Section 155 says that,-
"No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to try
such case or commit the case for trial."
(Emphasis supplied)
Coupled with the above said provision, if Section
154 of Cr.P.C. is read, which also indicates that,-
"Information in congnizable cases,- Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf."
6. On perusal of the above said two provisions,
it is mandatory on the part of the police that whether it is
cognizable offence or non-cognizable offence, if the
information is received by the police, there shall be a
record of the same by recording information in specific
registers kept in the police station and then if it is
cognizable offence, the police officer can straight-a-way
investigate the matter only after registering the case. If it
is non-cognizable offence, the police have no jurisdiction
to investigate the matter without the permission of the
jurisdictional Magistrate. If the said provisions are applied
to the present case on hand, the information received by
the Deputy Superintendent of Police is with reference to
non-cognizable offence and the Deputy Superintendent of
Police neither himself could have investigated the matter
without the permission of the jurisdictional Magistrate,
nor directed any of his subordinate to investigate.
Further, if the information received amounts to or
involves cognizable offence, as noted in the letter dated
20.07.2015, that should not have been investigated by
going to the spot, collecting materials and drawing-up of
mahazars, which are all part of investigation. That has
been done in this particular case and thereafter, the
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police have registered a case. Therefore, the entire
procedure that has been followed by the Investigating
Officer viz., the Sub-Inspector of police of Malebennur and
the subsequent proceedings by the PSI Rural police,
Davangere, are hit by Sections 154 and 155 of Cr.P.C.
Therefore, such proceedings are liable to be quashed.
7. Time and again, this court has passed such
orders quashing the proceedings wherever the police
officers have been committed mistakes in not referring
the complaint or not taking permission from the
jurisdictional Magistrate while investigating the matter
cognizable offences. In spite of various decisions having
been rendered by this court, it appears no proper steps
have been taken by the police department to direct the
Investigating Agencies, who are in the helm of affairs to
set right the above deficiency in the investigation.
Therefore, I feel it just and necessary to direct the
Director General of Police to take appropriate steps in this
regard to enlighten all the Investigating Agencies so that
they can in future avoid such initiation of proceedings and
investigate the matter without properly following the
procedure as contemplated under Sections 154 and 155
of Cr.P.C. Even after taking such steps by the Director
General of Police by means of properly issuing circulars
and appropriate notifications, if any police officer, in spite
of such instructions/notifications/circulars, follows the
same crude method of procedure, in violation of the
provisions noted above, then the Competent Authorities
have to take appropriate action against such erring
officers so as to curb such illegal procedures being
followed by the police officers.
8. The Registry is hereby directed to send a
copy of this order to the Director General of Police with for
compliance, a direction to intimate this court about the
steps taken.
9. With the above observation, I proceed to
pass the following:
ORDER
The petition is allowed. Initiation of the proceedings
against the petitioner-Shivanna @ Post Shiva Kumar, in
Crime No.248/2015 under Section 9(B)(1)(b) of Explosive
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Act, 1884, Section 3(a) of Explosive Substance Act, 1908,
Section 21 of MMRD Act, Sections 42 and 44 of KMMC
Rules 1994 and Sections 379 and 420 of IPC dated
17.07.2015 and all further proceedings are hereby
quashed."
3. Learned HCGP would not dispute the position
in law. Therefore, for the reasons rendered in
Crl.P.No.7634/2016, the present petition also deserves to
be allowed.
4. For the aforesaid reasons, the following:
ORDER
i. Criminal Petition is allowed.
ii. Proceedings in Spl.C.No.766/2021, pending on
the file of the Principal District and Sessions
Judge, Shimoga, stand quashed."
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
