Mohammed Azar S H vs The State Of Karnataka
2024 Latest Caselaw 11922 Kant

Karnataka High Court

Mohammed Azar S H vs The State Of Karnataka on 30 May, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                        CRL.P No. 1946 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 30TH DAY OF MAY, 2024

                                             BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                             CRIMINAL PETITION NO. 1946 OF 2024

                   BETWEEN:

                   1.    MOHAMMED AZAR S H
                         S/O S M HUSSAIN KUNHI,
                         AGED ABOUT 26 YEARS,
                         R/AT: 5-7/1, KUCCHI GUDDE,
                         MANJANADY
                         D K DISTRICT - 575018

                   2.    THANZEEL
                         S/O U A RAZAK,
                         AGED ABOUT 30 YEARS,
                         R/AT: 14-76-8,
                         HALEKOTE, MULLIGUDDE, ULLAI,
                         MANGALORE,
                         D K DISTRICT - 575020

Digitally signed   3.    HARZAN
by NAGAVENI              S/O ABOOBAKKAR,
Location: HIGH
COURT OF                 AGED ABOUT 36 YEARS,
KARNATAKA                R/AT:16-54, PALLAMAJALU HOUSE,
                         B-MOODA, BANTWAL,
                         MODANKAP,
                         D K DISTRICT - 574219

                   4.    MOHAMMAD NAZEEM
                         S/O ABDUL SHARIF,
                         AGED ABOUT 29 YEARS
                         R/AT 2-78A, SUJEER,
                         MARIPALLA, PUDU, BNATWAL,
                         FARANGIPET,
                         D K DISTRICT - 574143
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                                   CRL.P No. 1946 of 2024




5.   MOHAMMED ASHIK @ ASIF
     S/O MOHAMMED FAROOQ,
     AGED ABOUT 25 YEARS,
     R/AT: 16-108-14,
     ASHIQ MANZIL,
     NYARMA, NR MASJID,
     SHIRVA VTC AND POST,
     UDUPI DISTRICT - 574116


6.   ANWAR HUSSAIN
     S/O MOHAMMAD,
     AGED ABOUT 26 YEARS,
     R/AT: KODIMAR HOUSE,
     KALWAR, BAJPE,
     MANGALURU,
     D K DISTRICT - 574142
     (AS PER CHARGE SHEET)


7.   MOHAMMED IQBAL
     S/O ABDUL KHADAR,
     AGED ABOUT 32 YEARS,
     R/AT:2-93, KEMPU GUDDE,
     KANNUR, ADYAR POST,
     MANGALURU,
     D K DISTRICT - 575007


8.   MOHAMMAD SHAKIR @ KANNA SHAKIR
     S/O K HAMEED,
     AGED ABOUT 35 YEARS,
     R/AT 2-168(2),
     GANADA BETTU HOUSE,
     PADIL, KANNUR
     MANGALURU
     D K DISTRICT - 575007

                                           ...PETITIONERS
(BY SRI. LETHIF B., ADVOCATE)
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                                     CRL.P No. 1946 of 2024




AND:


1.   THE STATE OF KARNATAKA
     BY MANGALORE NORTH POLICE STATION,
     D K DISTRICT,
     REP. BY SPP,
     HIGH COURT BUILDING,
     BANGALORE - 560001


2.   SRI M MANOHAR KINI
     S/O LATE M MADHAVA KINI,
     AGED ABOUT 65 YEARS,
     R/AT DOOR NO.1-108/1,
     VISHNU KRUPA HOUSE,
     KULASHEKARA POST,
     MAROLI,
     MANGALURU - 577134

                                            ...RESPONDENTS
(BY SRI. P. THEJESH, HCGP FOR R1)


     THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER
IN C.C.NO.112/2020 (CR.NO.136/2019) OF MANGALURU
NORTH POLICE STATION D.K., DISTRICT FOR THE OFFENCE
P/U/S.143, 147, 148, 447, 427, 454, 380, 511, 188, 109, 120-
B R/W SEC.149 OF IPC ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND CJM MANGALURU WHICH IS
PRODUCED AT ANNEXURE A.


     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                           CRL.P No. 1946 of 2024




                              ORDER

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

petitioners and Sri. P.Thejesh, the learned High Court

Government Pleader appearing for respondent No.1.

2. The petitioners are before this Court calling in

question the proceedings in C.C.No.112/2020 registered for

offences punishable under Section 143, 147, 148, 447, 427,

454, 380, 511, 188, 109, 120B read with Section 149 of IPC.

3. The learned counsel for the petitioners would

submit that qua other accused in the same crime, this Court in

Crl.P.No.11243/2023, disposed of on 15.12.2023 has held as

follows:

" 2. Learned counsel for the petitioners submit that this Court qua other petitioners in Criminal Petition No.7741/2022 has quashed impugned proceedings in C.C.No.112/2020. In the light of quashment of the proceedings on qua other accused in the same proceeding, I deem it appropriate to grant the same relief to these petitioners as well.

3. This Court in Writ Petition No.7741/2022 has passed the following order:

The petitioners are before this Court calling in question proceedings in C.C.No.112/2020 for the

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offences punishable under Sections 143, 147, 148, 447, 427, 454, 380, 511, 188, 109, 120-B r/w Section 149 of IPC.

2. Heard the learned counsel Sri.B.Lethif for the petitioners and the learned HCGP, Sri.K.S.Abhijith for respondent No.1.

3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by this Court in Crl.P.No.2896/2022, disposed of on 20.06.2022 wherein, this Court 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.

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

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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

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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 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:

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"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. Learned HCGP would, though, refute the submission of the learned counsel for the petitioners, is not in a position to dispute the position of law as is laid down by this Court (supra).

5. Therefore, the petition deserves to be succeed on the afore-quoted reasons rendered by this Court (supra).

6. For the aforesaid reasons, the following:

ORDER i. Criminal Petition is allowed.

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ii. Proceedings in C.C.No.112/2020 on the file of the II Additional Senior Civil Judge and CJM, Mangalore, stands quashed.

In view of the disposal of the main petition,

I.A.No.1/2022 also stands disposed."

4. The position in law is not disputed by the learned

HCGP representing the State.

5. In the light of the order passed by this Court

(supra) and for the reasons aforementioned, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The proceedings in C.C.No.112/2020 pending on the file of the II Additional Senior Civil Judge and CJM, Mangalore, stand quashed.

Sd/-

JUDGE

KG