Karnataka High Court

Mohammed Ashik @ Asif vs The State Of Karnataka on 30 May, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                       NC: 2024:KHC:18453
                                                   CRL.P No. 3636 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. 3636 OF 2024


               BETWEEN:

               1.    MOHAMMED ASHIK @ ASIF
                     S/O MOHAMMED FAROOQ,
                     AGE ABOUT 25 YEARS,
                     R/AT 16-108-14,
                     ASHIQ MANZIL, NYARMA,
                     NR. MASJID,
                     SHIRVA VTC AND POST,
                     UDUPI DISTRICT - 574 116.

               2.    MOHAMMED AZAR S H
                     S/O S.M. HUSSAIN KUNHI,
                     AGED ABOUT 26 YEARS,
                     R/AT 5-7/1, KUCCHI GUDDE,
                     MANJANADY,
Digitally signed     D.K. DISTRICT - 575 018.
by NAGAVENI
Location: HIGH 3.    THANZEEL,
COURT OF
KARNATAKA            S/O U A RAZAK,
                     AGED ABOUT 30 YEARS,
                     R/AT 14-76-8, HALEKOTE,
                     MULLIGUDDE, ULLAI,
                     MANGALORE,
                     D.K. DISTRICT - 575 020.

               4.    HARZAN
                     S/O ABOOBAKKAR
                     AGED ABOUT 36 YEARS
                     RA/T 16-54,
                     PALLAMAJALU HOUSE,
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                                      NC: 2024:KHC:18453
                                  CRL.P No. 3636 of 2024




     B-MOODA, BANTWAL,
     MODANKAP,
     D.K. DISTRICT - 574 219.

5.   MOHAMMAD NAZEEM,
     S/O ABDUL SHARIF
     AGE ABOUT 29 YEARS
     R/AT 2-78A, SUJEER,
     MARIPALLA, PUDU,
     BANTWAL, FARANGIPET,
     D.K. DISTRICT - 574 143.

6.   ANWAR HUSSAIN,
     S/O MOHAMMAD,
     AGED ABOUT 26 YEARS,
     R/AT KODIMAR HOUSE,
     KALWAR, BAJPE,
     MANGALURU,
     D.K. DISTRICT - 574 142
     (AS PER CHARGE SHEET ).

7.   MOHAMMED IQBAL
     S/O ABDUL KHADAR,
     AGE ABOUT 32 YEARS,
     R/AT 2-93, KEMPU GUDDE,
     KANNUR, ADYAR POST,
     MANGALURU,
     D.K. DISTRICT - 575 007.

8.   MOHAMMAD SHAKIR @ KANNA SHAKIR,
     S/O K. HAMEED,
     AGE ABOUT 35 YEARS,
     R/AT 2-168(2),
     GANADA BETTU HOUSE,
     PADIL, KANNUR, MANGALURU,
     D.K. DISTRICT - 575 007.

9.   MOHAMMED NIZAM @ NIZAM
     S/O ABDUL LATHEEF,
     AGED ABOUT 35 YEARS,
     R/AT 9-16-629/4,
     DHARUL HIBHA, JM ROAD,
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                                               NC: 2024:KHC:18453
                                          CRL.P No. 3636 of 2024




    OPP. CRESCENT SCHOOL,
    KASABA BAZAR,
    MANGALORE,
    D.K. DISTRICT - 575 007.
    (NAME AND ADDRESS O THE PETITIONERS ARE AS
    PER ADHAR CARD)
                                        ...PETITIONERS
(BY SRI. LETHIF B., ADVOCATE)

AND:


    THE STATE OF KARNATAKA
    BY MANGALORE NORTH POLICE STATION,
    D.K. DISTRICT,
    REP. BY SPP,
    HIGH COURT BUILDING,
    BANGALORE - 560 001.
                                                    ...RESPONDENT
(BY SRI. P. THEJESH, HCGP)

     THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER
IN C.C.NO.1000/2020 OF MANGALURU NORTH POLICE
STATION, D.K., DISTRICT FOR THE OFFENCE P/US/
143,147,148,504,506,353,332,120-B,109 R/W SEC.149 OF IPC
WHICH IS PENDING ON THE FILE OF THE JMFC II COURT AT
MANGALURU WHICH IS PRODUCED AT ANNEXURE A IN THE
ABOVE CASE.

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


                              ORDER

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

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

Government Pleader appearing for the respondent.

NC: 2024:KHC:18453

2. The petitioners are before this Court calling in

question the proceedings in C.C.No.1000/2020 registered for

offences punishable under Section 143, 147, 148, 504, 506,

353, 332, 120B, 109 read with Section 149 of IPC.

3. The learned counsel for the petitioners would

submit that the issue in the case at hand stands covered by the

judgment rendered by this

Court in Crl.P.No.6314/2022, disposed of on 29.07.2022,

wherein 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:

"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

NC: 2024:KHC:18453

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

(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;"

NC: 2024:KHC:18453

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 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

NC: 2024:KHC:18453

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. 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: