Karnataka High Court
Sri Ravindra Shanbhag vs State By Sagar Town Police Station on 9 January, 2023
Bench: R. Nataraj
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CRL.RP No. 1346 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 1346 OF 2018
BETWEEN:
SRI. RAVINDRA SHANBHAG
S/O BABU RAO SHANBHAG,
AGED ABOUT 56 YEARS,
MERCHANT,
R/O CHANDRAMAVINKOPPALU,
SORABA ROAD, SAGAR TOWN,
SHIVAMOGGA DISTRICT-577401.
...PETITIONER
(BY SRI. K.V. SATEESH CHANDRA, ADVOCATE)
AND:
STATE BY SAGAR TOWN POLICE STATION,
SAGAR, SHIVAMOGGA.
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
Digitally
signed by (BY SRI. KRISHNAKUMAR K.K., HIGH COURT GOVERNMENT
SUMA
PLEADER)
Location:
HIGH THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
COURT OF
KARNATAKA SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE SENTENCE AND CONVICTION ORDERS
PASSED IN CRL.A.NO.10030/2018, PASSED BY THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE SHIVAMOGGA SITTING AT SAGAR,
DATED 14.11.2018, AND CONVICTION ORDER PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, SAGAR IN CRL.CASE
NO.131/2016, DATED 06.09.2018, PUNISHABLE UNDER SECTION
78(3) OF THE KARNATAKA POLICE ACT BY ALLOWING THIS CRL.RP.
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CRL.RP No. 1346 of 2018
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has assailed the judgment dated
06.09.2018 passed by the Principal Civil Judge and JMFC, Sagar
(henceforth referred to as 'Trial Court' for short) in
C.C.No.131/2016 convicting him for an offence punishable
under Section 78(3) of the Karnataka Police Act, 1963
(henceforth referred to as 'K.P. Act' for short) and the
consequent sentence to undergo simple imprisonment for two
months and to pay fine of Rs.200/-, in default, to undergo
simple imprisonment for 15 days, which was confirmed by the
judgment dated 14.11.2018 passed by the V Addl. District and
Sessions Judge, Shivamogga sitting at Sagar (henceforth
referred to as 'Appellate Court' for short) in
Crl.A.No.10030/2018.
2. The case of the prosecution was that on
06.01.2016, based on credible information, a raid was
conducted in a public place, where the petitioner was found
playing a game of chance called 'O.C. Matka' and that he had
CRL.RP No. 1346 of 2018
collected a sum of Rs.4,190/- from the public. The petitioner
was arrested and the sum of Rs.4,190/- was seized from him
along with O.C. chits and a panchanama was drawn. Based on
the first information, Crime No.6/2016 was registered for the
offences punishable under Section 78(3) of the K.P. Act and
Section 420 of IPC. The jurisdictional police filed a charge-
sheet against the petitioner for the offence punishable as
aforesaid. The petitioner pleaded not guilty and claimed to be
tried. The prosecution examined PW.1 to PW.3 and marked 6
documents as Exs.P1 to P6 and the seized objects were marked
as MO.1 to MO.3. The statement of the petitioner was recorded
under Section 313 of Cr.P.C. He denied all the incriminating
evidence against him. However, he did not lead any evidence in
his defence.
3. Based on the oral and documentary evidence, the
Trial Court held that the prosecution had proved the guilt of the
accused beyond doubt and therefore, it convicted the petitioner
for the offence punishable under Section 78(3) of the K.P. Act,
but acquitted him of the offence punishable under Section 420
of IPC. The Trial Court refused to grant the benefit of Section
CRL.RP No. 1346 of 2018
360 of Cr.P.C. and Sections 3 and 4 of the Probation of
Offenders Act, 1958. Being aggrieved by the said judgment,
the petitioner filed an appeal, which too was dismissed in terms
of the judgment dated 14.11.2018.
4. Being aggrieved by the same, the present revision
petition is filed.
5. The learned counsel for the petitioner submitted
that the maximum punishment for offence under Section 78 of
the K.P. Act was three months and therefore, was a non-
cognizable offence. He submitted that the prosecution was
bound to comply with Section 155(2) of Cr.P.C. Hence, he
contended that the entire investigation and filing of charge-
sheet is vitiated and such irregularity is incurable. He submitted
that the Trial Court as well as the Appellate Court failed to
notice this fundamental error by the prosecution.
6. The learned High Court Government Pleader
appearing for the respondent-State, on the other hand,
submitted that the petitioner has not challenged the cognizance
CRL.RP No. 1346 of 2018
of the offence taken by the Trial Court and therefore, he cannot
challenge the same in the revision petition. He submitted that
the offence complained of against the petitioner was not only
under Section 78 of the K.P. Act, but also under Section 420 of
IPC, which is a cognizable offence and therefore, the
prosecution was justified in not complying with Section 155(2)
of Cr.P.C.
7. I have considered the submissions made by the
learned counsel for the petitioner as well as the learned High
Court Government Pleader for the respondent - State.
8. It is apparent that there was no material to sustain
a charge under Section 420 of IPC. Therefore, the prosecution
had merely included Section 420 of IPC in the charge-sheet
filed so as to avoid the compliance of Section 155(2) of Cr.P.C.
The Trial Court ought to have considered the same while taking
cognizance of the offence. Be that as it may, the Trial Court as
well as the Appellate Court have noticed that the prosecution
has failed to prove the charge under Section 420 of IPC. Thus,
the inevitable conclusion is that the prosecution had mindlessly
CRL.RP No. 1346 of 2018
charge-sheeted the petitioner for the offence under Section 420
of IPC. This Court in a catena of decisions had held that the
offence under Section 78 of the K.P. Act is non-cognizable.
Therefore, the police could not have filed a report to the
Magistrate to take cognizance. Hence, the entire investigation
and cognizance and all proceedings vitiated. This was indeed
an irregularity, which the Trial Court and the Appellate Court
failed to notice, resulting in a wrongful conviction of the
petitioner. Hence, the following
ORDER
i) This revision petition is allowed.
ii) The impugned judgment of conviction dated
06.09.2018 passed by the Principal Civil
Judge and JMFC, Sagar in C.C.No.131/2016
as well as the judgment dated 14.11.2018
passed by the V Addl. District and Sessions
Judge, Shivamogga sitting at Sagar in
Crl.A.No.10030/2018 are hereby set aside.
CRL.RP No. 1346 of 2018
The prosecution of the petitioner is set at
naught.
iii) Consequently, the petitioner is acquitted of
the offence punishable under Section 78(3)
of the Karnataka Police Act, 1963.
Sd/-
JUDGE
PMR
