Mohammed Azar S H vs The State Of Karnataka
2024 Latest Caselaw 375 Kant

Karnataka High Court

Mohammed Azar S H vs The State Of Karnataka on 5 January, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                      CRL.P No. 13803 of 2023




                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 5TH DAY OF JANUARY, 2024

                                             BEFORE
                           THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                             CRIMINAL PETITION NO. 13803 OF 2023
                   BETWEEN:

                   1.     MOHAMMED AZAR S. H.,
                          S/O S.M.HUSSAIN KUNHI
                          AGED ABOUT 26 YEARS
                          R/AT: 5-7/1, KUCCHI GUDDE
                          MANJANADY
                          DAKSHINA KANNADA DISTRICT - 575 018.

                   2.     HARZAN
                          S/O ABOOBAKKAR
                          AGED ABOUT 36 YEARS
                          R/AT: 16-54, PALLAMAJALU HOUSE
                          B-MOODA, BANTWAL, MODANKAP
                          DAKSHINA KANNADA DISTRICT - 574 219.

Digitally signed by 3.    ANWAR HUSSAIN
PADMAVATHI B K
                          S/O MOHAMMAD
Location: HIGH
COURT OF                  AGED ABOUT 26 YEARS
KARNATAKA                 R/AT: KODIMAR HOUSE
                          KALWAR, BAJPE, MANGALURU
                          DAKSHINA KANNADA DISTRICT - 574 142.

                   4.     MOHAMMED IQBAL @ IQBAL
                          S/O ABDUL KHADAR
                          AGED ABOUT 32 YEARS
                          R/AT: 2-93, KEMPU GUDDE
                          KANNUR, ADYAR POST
                          MANGALURU
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                                         NC: 2024:KHC:683
                                  CRL.P No. 13803 of 2023




     DAKSHINA KANNADA DISTRICT - 575 007.

5.   MOHAMMAD KAISAL @ KAISAL
     @ MOHAMMAD SHAKIR
     S/O K.HAMEED
     AGED ABOUT 35 YEARS
     R/AT: 2-168(2), GANADA BETTU HOUSE
     PADIL, KANNUR, MANGALURU
     DAKSHINA KANNADA DISTRICT - 575 007.
                                            ...PETITIONERS
(BY SRI. LETHIF B., ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY MANGALORE NORTH POLICE STATION
DAKSHINA KANNADA DISTRICT
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560 001.
                                            ...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING THAT THIS HONOURABLE COURT MAY BE
PLEASED TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONERS IN S.C.NO.178/2023 (C.C.NO.990/2020) FOR
THE OFFENCE P/U/S 143, 147, 148, 188, 353, 332, 427, 435,
307, 109, 120B R/W 149 OF IPC AND SEC. 2(a) AND (b) OF
KPDLP ACT OF MANGALORE NORTH POLICE STATION,
PENDING ON THE FILE OF IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K. MANGALORE, WHICH IS PRODUCED AT
ANNEXURE-A.

     THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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                                       CRL.P No. 13803 of 2023




                             ORDER

The petitioners are before this Court calling in question

the proceedings in S.C.No.178/2023 (C.C. No.990 of 2020)

pending on the file of IV Additional District and Sessions Judge,

D.K., Mangalore registered for the offences punishable under

Sections 143, 147, 148, 188, 353, 332, 427, 435, 307, 109,

120B read with Section 149 of the Indian Penal Code, 1860,

and Section 2(a) and (b) of the Karnataka Prevention of

Destruction and Loss of Property Act, 1981.

2. Heard Sri Lethif B., learned counsel appearing for

the petitioners, and Sri Jairam Siddi, learned High Court

Government Pleader appearing for respondent.

3. The learned counsel appearing for the petitioners

submits that the issue in the lis stands covered by the

judgment rendered by this Court in Criminal Petition No.6408 of

2022 disposed of on 25-7-2022. This Court in the said petition

has held as follows:

"xxx 3. The learned counsel for the petitioners would submit that the issue

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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 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

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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

(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

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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 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."

4. The position in law is not disputed by the learned HCGP and in the light of the order passed by the Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following. xxx"

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4. Learned High Court Government Pleader though would

refute the submission of the learned counsel for the petitioner,

but is not in a position to dispute the position of law as is

followed by this Court in the aforesaid case.

5. For the aforesaid reasons, the following:

                                    ORDER

        (i)    Criminal Petition is allowed.

(ii) Proceedings in S.C.No.178 of 2023 (C.C. No.990 of

2020) pending on the file of the IV Additional

District and Sessions Judge, D.K., Mangaluru,

stands quashed qua the petitioners.

In view of the disposal of the main petition, I.A. No.1 of

2023 also stands disposed.

Sd/-

JUDGE

BKP

CT:SS