Karnataka High Court
Umesh Shetty vs State Of Karnataka on 27 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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NC: 2024:KHC:8028
CRL.P No. 7228 of 2023
C/W WP No. 14239 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
CRIMINAL PETITION NO. 7228 OF 2023 (482)
C/W
WRIT PETITION NO. 14239 OF 2023 (GM-RES)
IN CRL.P.NO.7228/2023:
BETWEEN:
UMESH SHETTY
S/O VITTAL SHETTY,
AGED ABOUT 49 YEARS,
R/AT NO.1441, 2ND CROSS, 2ND STAGE,
CHANDRALAYOUT,
BANGALORE - 560 040.
(ADDRESS AS PER AADHAR)
...PETITIONER
Digitally signed (BY SRI. UDAY KUMAR M., ADVOCATE FOR
by SHARADA SRI. NEHRU M N.,ADVOCATE)
VANI B
Location: HIGH AND:
COURT OF
KARNATAKA
STATE OF KARNATAKA
BY S.J.PARK POLICE STATION,
BANGALORE CITY - 560 001.
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI.B N JAGADEESH., ADDL. SPP)
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C.NO.24636/2022
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NC: 2024:KHC:8028
CRL.P No. 7228 of 2023
C/W WP No. 14239 of 2023
REGISTERING THE CASE AGAINST THE PETITIONER FOR THE
ALLEGED OFFENCE P/U/S 188 OF IPC AND SECTION 103 OF
KARNATAKA POLICE ACT PENDING ON THE FILE OF HON'BLE VI
ADDL.C.M.M., BENGALURU BY ALLOWING THIS CRL.P U/S 482
OF CR.P.C.
IN W.P.NO.14239/2023:
BETWEEN:
SRI.CHAKRAVARTHY SULIBELE,
AGED ABOUT 44 YEARS,
S/O SRI.DEVIDAS SHET SULIBELI,
R/AT SULIBELE, BENGALURU RURAL - 562 129.
KARNATAKA.
...PETITIONER
(BY SRI.ARUNA SHYAM., SENIOR COUNSEL A/W
SRI. SUYOG HERELE E., ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY SP PARK POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BENGALURU - 560 001.
...RESPONDENT
(BY SRI.B N JAGADEESH., ADDL. SPP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482
OF THE CR.P.C, 1973 PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE
ORDER DATED 29.07.2022 AND THE ENTIRE PROCEEDDINGS
INCLUDING THE COMPLAINT IN C.C.NO.24636/2022 INITIATED
AGAINST THE PETITIONER FOR OFFENCES PUNISHABLE UNDER
SECTIONS 188 OF IPC AND SECTION 103 OF THE KARNATAKA
POLICE ACT, PENDING ON THE FILE OF THE VI ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE IN THE INTEREST OF
JUSTICE. (PRODUCED AS ANNEXURE-A AND B) IN SO FAR AS
PETITIONER.
THIS CRIMINAL PETITION AND THIS WRIT PETITION
COMING ON FOR ADMISSION THIS DAY, THE COURT MADE
THE FOLLOWING:
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NC: 2024:KHC:8028
CRL.P No. 7228 of 2023
C/W WP No. 14239 of 2023
ORDER
The fact matrix of both these cases is substantially
similar and they arise from the very same complaint as
well wherein violation of the provisions of Section 188 of
Indian Penal Code, 1860 has been alleged. Cognizance
having been taken by the learned Judge of the Court
below, process has been issued to the accused/petitioners.
That is how they are before this court seeking quashment
of the same.
2. Learned Sr. Advocate Mr.Aruna Shyam
appearing for the petitioners submits that the cognizance
of the offence could not have been taken by the court
below, the private complaint filed u/s 200 of the Code of
Criminal Procedure, 1973, for the subject offence itself
being incompetent. In support of this, he banks upon of a
Coordinate Bench decision in W.P.No.13328/2018 (GM-
RES) between SRI. RAJASHEKHARANANDA SWAMIJI AND
ANOTHER vs. STATE OF KARNATAKA, disposed off on
18.6.2021. He further submits that the provisions of
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Section 195 of the Code of Criminal Procedure, 1973
having been held mandatory by the Apex Court in SALONI
ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the
quashment has to be granted by this court.
3. Learned Addl. SPP appearing for the respondent
opposes the petitions contending that there can be
delegation of power to lodge the complaint and therefore,
in such an event, the author who promulgated the order in
question need not go before the court to complain. Even
otherwise, according to him, the arguable infirmity not
going to root of the matter, no relief can be granted to the
petitioners, as prayed for. So contending, he seeks
dismissal of the petitions.
4. Having heard the learned counsel for the parties
and having perused the Petition Papers, this court is
inclined to grant relief to the petitioners, broadly agreeing
with the submission made on their behalf. Similar
question had cropped up before the Coordinate Bench in
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Rajashekharananda Swamiji supra. A paragraphs 8 & 10 of
the judgement, it is observed as under:
"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.
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. Hemareddy1, 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)"
The above observations come to the aid of petitioners.
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5. The vehement submission of learned Addl. SPP
that there can be delegation of "power to complain" in
terms of promulgated order in question, is bit difficult to
countenance in the absence of such delegation being
demonstrated from the text of the said order itself. It has
been a settled position of law vide In Re Delhi Laws Act,
1951 SCC OnLine SC 45 that a delegate cannot further
delegate: delegatus non potesta potestas delegare. Contra
having not been shown, the contention of the kind cannot
be countenanced.
In view of the above, these petitions being
meritorious are allowed to meet the ends of justice and to
prevent the abuse of process of the court; the impugned
proceedings in C.C.No.24636/2022 pending on the file of
learned VI Addl. Chief Metropolitan Magistrate, Bengaluru,
are quashed.
Sd/-
JUDGE
cbc
