Karnataka High Court

Mohammed Marvan vs The State Of Karnataka on 5 April, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                            NC: 2024:KHC:14199
                                                         CRL.P No. 864 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF APRIL, 2024

                                            BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                            CRIMINAL PETITION NO. 864 OF 2024
                   BETWEEN:

                       MOHAMMED MARVAN,
                       S/O AHAMMAD KHADAR,
                       AGED ABOUT 22 YEARS,
                       R/AT D.NO.16-180-5,
                       DARKAS HOUSE, NEAR MASJID,
                       SHIRVA POST,
                       UDUPI DISTRICT - 574 116.
                                                                 ...PETITIONER
                   (BY SRI. LETHIF B., ADVOCATE)

                   AND:

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

                        THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
                   QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER
                   IN S.C.NO.199/2023 (C.C.NO.710/2020) FOR THE OFFENCE
                   P/U/S 143, 147, 148, 152, 353, 332, 307, 427, 324, 188, 109,
                   120(B) R/W 149 OF IPC AND SEC. 2(a) OF KPDLP ACT, ON THE
                   FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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                                            NC: 2024:KHC:14199
                                         CRL.P No. 864 of 2024




MANGALORE OF MANGALURU SOUTH POLICE STATION, WHICH
IS PRODUCED AT ANNEXURE-A, IN THE ABOVE CASE.

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

The petitioner is before this court seeking the

following relief:

Wherefore, the petitioner prays that this Hon'ble court be pleased to quash the entire proceedings against the etitioner in S.C.No.199/2023 (C.C.No.710/2020) for the offence punishable under Section 143, 147, 148, 152, 353, 332, 307, 427, 324, 188, 109, 120(b) r/w 149 of IPC and Section 2(a) of KPDLP Act on the file of III Additional District and Sessions Judge, Mangalore of Mangaluru South Police Station which is produced at Annexure-A in the above case, in the interest of justice.

2. Both the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

for the respondent would in union submit that the issue in

the lis stands answered by Crl.P.No.7746/2022, wherein

this court has held as follows:

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"Heard Sri. Lethif B., learned counsel appearing for the petitioners and Sri. K.S. Abhijith, the learned High Court Government Pleader appearing for the respondents.

2. The petitioners are before this Court calling in question the proceedings in C.C.No.710/2020, registered for offences punishable under Sections 143, 147, 148, 152, 353, 332, 307, 427, 324, 188, 120B read with Section 149 of IPC and Section 2(a) of Karnataka Prevention of Destruction and loss of Property Act.

3. Both the learned counsel in unison would submit that the issue in the lis stands covered by the judgment rendered by this Court in Crl.P.No.2896/2022 disposed on 20.06.2022, wherein this Court following the judgment rendered by the co-ordinate Bench has held as follows:

"The petitioners are before this Court calling in question the proceedings in C.C.No.338/2014, registered for offences punishable under Sections 143, 144, 188 and 504 read with Section 149 of IPC.

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2. Learned counsel appearing for the petitioners submits that the issue in this petition stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, which submission is accepted by the learned HCGP appearing for the respondent.

3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Co-ordinate Bench of this Court. The Co-ordinate Bench 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

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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

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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

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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

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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 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

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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. ii. Proceedings in C.C.No.388/2014 on the file of the II Additional Civil Judge and J.M.F.C., Nanjangud, Mysore, stand quashed.