Karnataka High Court
Mohammed Ali vs The State Of Karnataka on 20 June, 2023
Bench: M.Nagaprasanna
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NC: 2023:KHC:21191
CRL.P No. 4643 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4643 OF 2023
BETWEEN:
1. MOHAMMED ALI
S/O ABID HUSSAIN,
AGED ABOUT 40 YEARS,
R/AT NO.104,
IDRISAB MOHALLA,
KOLAR-563 101.
2. HIDAYATHULLA,
S/O RAHAMATHULLA,
AGED ABOUT 45 YEARS,
R/AT NO.530, 2ND CROSS,
HAVELI MOHALLA KUMBARPET,
BANGARPET,
KOLAR-563 101.
Digitally signed by 3. IMTIYAZ PASHA,
PADMAVATHI B K
S/O ABDUL BASHEER,
Location: HIGH
COURT OF AGED ABOUT 38 YEARS,
KARNATAKA R/AT KHAN SAB MASJID ROAD,
HAVELI MOHALLA,
KOLAR - 563 101.
4. RAHAMATH ULLA KHAN,
S/O INAYATH ULLA KHAN,
AGED ABOUT 47 YEARS,
R/AT NO.2011102, 2ND CROSS,
OPP TO MADEENA MASJID,
MILATH NAGAR,
KOLAR-563 101.
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CRL.P No. 4643 of 2023
5. FIRDOSE PASHA,
C/O NISAR AHMED,
AGED ABOUT 43 YEARS,
R/AT NO.2415, 5TH CROSS,
PHOOLSHA MOHALLA,
KOLAR-563 101.
6. SAGEER AHAMMED,
S/O B NAZEER AHMED,
AGED ABOUT 41 YEARS,
R/AT 4TH CROSS,
MILLATH NAGAR,
KOLAR - 563 101.
7. SHARUKH PASHSA,
S/O NASIR PASHA,
AGED ABOUT 33 YEARS,
R/AT NO.568, 1ST MAIN, 2ND CROSS,
NEAR SHAHI EDIGAH,
SHAHIN SHA NAGAR,
KOLAR-563 101.
...PETITIONERS
(BY SRI. LETHIF B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY GULPET POLICE STATION,
KOLAR DISTRICT.
REP. BY SPP,
HIGH COURT BUILDING,
BANGALORE-560 001.
2. CIRCLE INSPECTOR,
GULPET CIRCLE,
KOLAR DISTRICT-563 102.
...RESPONDENTS
(BY SMT. K.P. YASHODA, HCGP)
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NC: 2023:KHC:21191
CRL.P No. 4643 of 2023
THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONERS IN C.C.NO.325/2022 ON THE FILE OF II
ADDITIONAL CIVIL JUDGE AND J.M.F.C., KOLAR OF GULPET
POLICE STATION, KOLAR DISTRICT FOR THE OFFENCE P/U/S
143, 145, 188, 269 R/W 149 OF IPC AND SECTION 5 OF THE
KARNATAKA EPIDEMIC DISEASES ACT, 2020 WHICH IS
PRODUCED AT ANNEXURE-A IN THE ABOVE CASE AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in
question proceedings in C.C.No.325/2022 registered for
offences punishable under Sections 143, 145, 188, 269
read with Section 149 of IPC and Section 5 of Karnataka
Epidemic Disease Act, 2020.
2. Heard the learned counsel, Sri. Lethif B.,
appearing for the petitioners and the learned HCGP,
Smt. K.P. Yashoda, appearing for the respondents 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 the Co-ordinate
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CRL.P No. 4643 of 2023
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
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,
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CRL.P No. 4643 of 2023
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
(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
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CRL.P No. 4643 of 2023
(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
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CRL.P No. 4643 of 2023
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.
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CRL.P No. 4643 of 2023
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.325/2022 before
the II Additional Civil Judge and JMFC, Kolar,
stands quashed qua the petitioners.
Sd/-
JUDGE
KG
