Karnataka High Court
Prabhu S/O. Nagappa Babali vs The State Of Karnataka on 10 July, 2023
Bench: V.Srishananda
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CRL.P No. 100769 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100769 OF 2023
BETWEEN:
PRABHU S/O. NAGAPPA BABALI,
AGE: 43 YEARS, OCC: BUSINESSMEN,
R/O: DEVI BAR, NEAR FCI GODOWN,
TQ: KOPPAL, DIST: KOPPAL -583231.
...PETITIONER
(BY SRI. B.C. JNANAYYA SWAMI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH,
CHANDRASHEKAR
LAXMAN
AT: DHARWAD,
KATTIMANI (THROUGH ALWANDI POLICE STATION).
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
Digitally signed by
CHANDRASHEKAR
LAXMAN THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
KATTIMANI
Date: 2023.07.11 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER DATED
15:46:15 -0700
22.10.2022 PASSED BY THE LEARNED ADDL. CIVIL JUDGE AND
JMFC KOPPAL AT KOPPAL IN CC NO. 3487/2022 FOR AN
OFFENCE PUNISHABLE U/S 32, 34 OF KARNATAKA EXCISE ACT
1965 IN CRIME NO. 95/2022 REGISTERED BY THE ALWANDI
POLICE STATION, BY ALLOWING THE CRIMINAL PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 100769 of 2023
ORDER
Heard Sri B.C.Jnanayyaswami, leaned counsel for the
petitioner and Smt.Girija S.Hiremath, learned High Court
Government Pleader for the respondent-State.
2. This petition is filed under Section 482 of
Cr.P.C. with the following prayer.
"To quash the impugned order dated
22.10.2022 passed by the learned Addl. Civil
Judge and JMFC Koppal at Koppal in CC
No.3487/2022 for an offence punishable u/s 32,
34 of Karnataka Excise Act 1965 in Crime
No.95/2022 registered by the Alwandi Police
Station, by allowing the criminal petition."
3. Brief facts of the case are as under:
Petitioner has been charge sheeted for the offences
punishable under Sections 32 and 34 of the Karnataka
Excise Act and summons have been issued and the same
is under challenge. The gist of the complaint averments
reveal that when the complainant was on duty, he
received credible information stating that in Kavaluru
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CRL.P No. 100769 of 2023
village near Huligemma Temple at public place,
petitioner-accused No.3 was indulged in sale of liquor. On
credible information, head of the raid party along with
panch witnesses went to the spot and were on watch for
the suspect. On confirmation, they raided and captured
the person who was indulged in sale of the liquor sachets
illegally and he is arraigned as accused No.3 in the charge
sheet. Further, the police investigated and based on the
information collected by the police, accused No.1 and 2
have also been arraigned as additional accused in the case
and they have also been charge sheeted. The action of the
police is challenged in the present petition.
4. Reiterating the grounds urged in the petition,
Sri B.C.Jnanayyaswami, learned counsel for the petitioner
vehemently contended that in the absence of any
incriminatory materials found against accused No.3, he
has been falsely implicated by the police in order to harass
him and therefore, sought for allowing the petition.
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5. Per contra, learned High Court Government
Pleader submits that, in the charge sheet materials
necessary information has been gathered by the
investigating agency to establish nexus between the
petitioner and the incident and therefore, sought for
dismissal of the petition.
6. Perused the material on record meticulously, in
the light of rival contentions of the parties.
7. Admittedly on the day of the raid, the police
were only able to capture one of the accused persons who
was selling the liquor sachets. Subsequent thereto, the
police investigated the matter and filed charge sheet
against the present petitioner also. The charge sheet
materials do not indicate that, the liquor sachets seized by
the head of the raid party on the date of raid were in fact
supplied by present petitioner from Devi Wine Shop. No
other material is forthcoming so as to proceed against the
petitioner.
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CRL.P No. 100769 of 2023
8. The investigation agency has not collected any
material to establish that the sold liquor packets are
actually purchased from petitioner's shop or belongs to
petitioner. Under such circumstances, in the absence of
nexus, criminal action is impermissible.
9. Learned counsel for the petitioner also placed
reliance on the judgment of the Co-ordinate Bench of this
Court dated 02.07.2020 passed in Crl.P.No.100827/2019
and connected matters. In the said case, Co-ordinate
Bench of this Court has referred to other judgments of
Co-ordinate Bench of this Court in paragraph Nos.10, 11
and 13 of its judgment. For ready reference paragraph
Nos.10, 11 and 13 are extracted hereunder.
"10. In a decision reported in (2013) 1
KCCR 334 case of K.Ramachandra Reddy Vs.
State of Karnataka by the Station House
Officer & Another, it is observed as under:
"23. The position in law will have to be
referred to at this juncture. This Court, in the
case M/s. Vijaya Bank Vs. State by the Labour
Enforcement Officer, reported in ILR 2000
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CRL.P No. 100769 of 2023
Karnataka 4773, has held that taking
cognizance of an offence being a judicial act
after application of kind, the Magistrate
Proforma" should in which not even use the
"printed words "Cognizance is taken, are also
printed or typed."
11. Having regard to the submission made by
the learned counsel for the petitioners, this Court has
gone through the entire charge sheet records and
orders passed by the Magistrate for taking
cognizance and others. In all three criminal cases,
wherein the petitioners are arrayed as accused, the
orders passed by the Magistrate for taking
cognizance are in a printed proforma. In view of the
decisions reported in ILR 2000 Kar. 4773 and
(2013) 1 KCCR 334 taking cognizance of an offence
being a judicial act after application of mind the
Magistrate should not pass the order mechanically in
a printed proforma. ln present cases, it is evident
that the orders of cognizance are in printed proforma
as such they are not in accordance with law.
13. In a decision division bench of this Court
in Criminal Petition No.15941 of 2012 in the case of
Sri Girishchadra S/o Veerabhadrayya Hiremath and
another Vs. The State by Lokayukta Police, Yadri, it
is observed as under:
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CRL.P No. 100769 of 2023
"10. With regard to the question
whether registration of FIR should precede
the investigation could the midst of the
process of investigation would always depend
upon offence committed right the presence of
police officer, would imprudent insist he
should rush the police station to record the
FIR. The police officer should immediately
act, like apprehending the accused, sending
the victim to medical treatment etc., and
thereafter registration FIR would an ideal
investigation procedure. Otherwise, all other
type of cases, registration of FIR is
mandatory since FIR is to sent the Court at
the earliest stage, that manipulating and
tampering facts would be possible. If the FIR
is sent to the Court, all further investigation
should necessary be consistent with the FIR."
10. This Court is of the considered opinion that, the
case of the petitioner would also squarely fall within the
legal principles enunciated in the aforesaid judgments.
Accordingly, the petitioner is entitled to succeed. Hence,
the following:
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ORDER
Petition is hereby allowed.
Further proceedings in C.C.No.3487/2022
on the file of Addl. Civil Judge and J.M.F.C.,
Koppal in pursuance of a case registered in
Crime No.95/2022 by the Alwandi Police Station
for the offences punishable under Sections 32,
34 of the Karnataka Excise Act initiated against
the petitioner is hereby quashed.
Sd/-
JUDGE
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