Karnataka High Court

Julpikar vs The State Of Karnataka on 2 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                          CRL.P No. 11115 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 2ND DAY OF FEBRUARY, 2024

                                              BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                               CRIMINAL PETITION NO. 11115 OF 2023


                      BETWEEN:

                      1.    JULPIKAR
                            S/O MR.IBRAHIM
                            AGED ABOUT 32 YEARS
                            MJM 633, MEHNAZ MANZIL
                            BENGRE KASABA MANGALURU
                            DAKSHINA KANNADA - 575 013.

                      2.    MOHAMMED BILAL
                            S/O MR.RAHIM
                            AGED ABOUT 28 YEARS
                            NEAR KANDATPALLI
                            SECOND FLOOR IN
                            FRIDGE REPAIR BUILDING
Digitally signed by
PADMAVATHI B K              KUDROLI, MANGALURU
Location: HIGH              DAKSHINA KANNADA - 575 003.
COURT OF
KARNATAKA

                      3.    MOHAMMED SAALI
                            S/O MR.ABDUL KHADR
                            AGED ABOUT 68 YEARS
                            FLAT NO.101, SORAJ DIAMOND APARTMENT
                            1ST FLOOR, AZEEZUDDIN ROAD
                            BANDAR, MANGALURU
                            DAKSHINA KANNADA - 575 001.
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                                             NC: 2024:KHC:4701
                                      CRL.P No. 11115 of 2023




4.   MOHAMMED SAFWAN
     S/O MR.MOHAMMED HANEEF
     AGED ABOUT 29 YEARS
     HOUSE NO.2-73/1, MALAR
     BADRIYA NAGAR
     PAVOOR MANGALURU
     DAKSHINA KANNADA - 574 199.
                                                 ...PETITIONERS
(BY SRI TALHA ISMAIL BENGRE, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY MANGALURU SOUTH POLICE STATION
DAKSHINA KANNADA
REPRESENTED BY SPP HIGH COURT
BENGALURU - 560 001.
                                                ...RESPONDENT
(BY SRI KIRAN KUMAR, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., QUASH THE FIR AND CHARGE SHEET REGISTERED
PERTAINING     TO    COMPLAINT    AND   FIR    BEARING
CR.NO.240/2019 FOR THE OFFENCE P/U/S 143, 147, 148, 152,
324, 353, 307, 120B, 109 R/W 149 AND SEC. 2(A), 2(B) OF
K.P.D.L.P ACT AND S.C.NO.156/2023, WHICH IS PENDING IN
THE FILE OF PRL. DISTRICT AND SESSIONS JUDGE AT
MANGALORE, D.K.


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


                            ORDER

The petitioners are before this Court calling in question

the proceedings in S.C.No.156 of 2023 (Crime No.240 of 2019)

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registered for offences punishable under Sections 143, 147,

148, 152, 324, 353, 332, 307, 120-B r/w Section 149 of the

IPC and Sections 2(a) and (b) of KPDLP Act.

2. Heard the learned counsel, Sri. Talha Ismail Bengre,

appearing for the petitioners and Sri.Kiran Kumar, the learned

High Court Government Pleader appearing for respondent-State

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 this Court in W.P.No.6314/2022,

disposed on 29.07.2022. 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:

"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 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:

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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, 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

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(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 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

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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."

4. In view of the issue in the lis standing covered by

the judgment as quoted supra on all its fours, I proceed to pass

the following:

ORDER

i. Criminal Petition is allowed.

ii. Proceedings pending in S.C.No.156 of 2023 (Crime No.240 of 2019) pending before the VI Additional District and Sessions Judge, Mangalore stands quashed qua the petitioners.