Karnataka High Court

B.R. Bhaskar Prasad vs State By K.G.Halli Ps on 5 April, 2024

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                          NC: 2024:KHC:14297
                                                        WP No. 5927 of 2024




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF APRIL, 2024

                                            BEFORE

                       THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

                        WRIT PETITION NO. 5927 OF 2024 (GM-RES)

                BETWEEN:

                B.R. BHASKAR PRASAD
                S/O LATE P. RAMAPRASAD
                AGED ABOUT 48 YEARS
                R/AT LOHITNAGAR NELAMANGALA
                BANGALORE - 562 123.
                                                                ...PETITIONER
                (BY SRI MOHAMMED TAHIR, ADV.)
                AND:

                1.   STATE BY K.G.HALLI P.S
                     REP BY STATE PUBLIC PROSECUTOR
                     OFFICE AT HIGH COURT COMPLEX
                     OPP TO VIDHANA SOUDHA
                     BENGALURU - 560 001.

Digitally       2.   MR. HONNAPPA
signed by            AGED ABOUT 54 YEARS
PAVITHRA N           S/O DULI HONAPPA
Location:            R/AT TOWER ROAD
High Court of
Karnataka            NEAR PIPE LINE
                     KANAKAPURA
                     RAMANAGARA - 562 117
                     KARNATAKA.
                                                              ...RESPONDENTS
                (BY SMT. K.P. YASHODHA, HCGP FOR R-1 & R-2)
                     THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
                CONSTITUTION OF INDIA R/W 482 OF CRPC PRAYING TO QUASH
                THE COGNIZANCE ORDER 29.08.2023 IN CC.NO.57605/2023 AT
                ANNX-D ARISING OUT OF CRIME NO. 135/2023 REGISTERED BY THE
                R-1 POLICE KG HALLI U/S 353 AND 188 OF IPC, PENDING IN THE
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                                             NC: 2024:KHC:14297
                                           WP No. 5927 of 2024




FILES OF HONBLE 11 ADDL. CMM COURT, BANGALORE, WHEREIN
THE PETITIONER ARRIVED AS ACCUSED NO.1.


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

                             ORDER

1. Petitioner is before this Court with a prayer to quash the

entire proceedings in C.C.No.57605/2023 pending before the

Court of XI Addl. Chief Metropolitan Magistrate, Bengaluru,

arising out of Crime No.135/2023 registered by K.G.Halli Police

Station, for the offences punishable under Sections 353 & 188

IPC.

2. Heard the learned Counsel for the parties.

3. Learned Counsel for the petitioner submits that FIR in

Crime No.135/2023 was registered for the offences punishable

under Sections 353, 34 IPC. Charge sheet is now filed for the

offences punishable under Sections 353 & 188 IPC. So far as

the offence under Section 188 IPC is concerned, in view of the

bar under Section 195 of Cr.PC, the Trial Court could not have

taken cognizance of the charge sheeted offences.

4. Per contra, learned HCGP has opposed the petition.

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5. The question that arises for consideration in this petition

is covered by the judgment rendered by this Court in

Crl.P.No.7868/2022 disposed of on 01.09.2022, wherein this

Court has held as under:

"3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.2896/2022, disposed of on 20.06.2022, wherein this Court has held as follows:

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 prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant

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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 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-

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(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

(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

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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 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."

6. Learned HCGP who has opposed the petition, however,

does not dispute the position of law as laid down by this Court

in Crl.P.No.7868/2022. Accordingly, the following order: