Sri Kota Srinivasa Poojari vs The State Of Karnataka
2024 Latest Caselaw 27945 Kant

Karnataka High Court

Sri Kota Srinivasa Poojari vs The State Of Karnataka on 22 November, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                                                   -1-
                                                                NC: 2024:KHC:47719
                                                            CRL.P No. 8919 of 2024
                                                         C/W WP No. 15573 of 2024



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 22ND DAY OF NOVEMBER, 2024

                                                  BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                CRIMINAL PETITION NO. 8919 OF 2024
                                                   C/W
                             WRIT PETITION NO. 15573 OF 2024 (GM-RES)


                      IN CRL.P No. 8919/2024

                      BETWEEN:

                      1.    SRI KOTA SRINIVASA POOJARI
                            S/O ANNAPPA POOJARI,
                            AGED ABOUT 65 YEARS,
                            MEMBER OF PARLIAMENT,
                            UDUPI- CHIKKAMAGALURU CONSTIUENCY,
                            KARNATAKA,
                            NO.1-16, NEAR NH 66,
                            KOTA, KOATHATTU,
                            UDUPI - 576 221.
Digitally signed by
NAGAVENI
Location: HIGH
COURT OF              2.    SRI. SURESH P.SHETTY.
KARNATAKA
                            S/O PRABHAKAR SHETTY,
                            AGED ABOUT 61 YEARS,
                            MEMBER OF LEGISLATIVE ASSEMBLY,
                            KAUP CONSTITUENCY,
                            KARNATAKA,
                            PADMASRI,
                            GURME HOUSE, KALTHUR,
                            UDUPI - 574 106.

                      3.    SRI LALAJI R MENDON
                           -2-
                                       NC: 2024:KHC:47719
                                   CRL.P No. 8919 of 2024
                                C/W WP No. 15573 of 2024



     S/O R.D.MENDON,
     AGED ABOUT 64 YEARS,
     EX-MEMBER OF LEGISLATIVE ASSEMBLY,
     KAUP CONSTITUNECY, KARNATAKA,
     NO.3-80 (B),
     SHRAVANA VARUNA KOPPALANGADI,
     NEAR N.H- 66,
     PADU VILLAGE - 574 106.

4.   MANAGEMENT BOARD TRISHA COLLEGE
     KATAPADY,
     KAUP TALUK - 574 106
     REPRESENTED BY PRESIDENT,
     SRI GOPALAKRISHNA N.S.,
     S/O N.SRIDHAR BHAT,
     AGED ABOUT 47 YEARS.
                                           ...PETITIONERS
(BY SRI ARUNA SHYAM M., SR.COUNSEL FOR
    SRI SUYOG HERELE E., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     THROUGH FLYING SQUAD OFFICER,
     SRI VISHWANATHA SHETTY,
     F.S.T-2, OFFICER,
     121, KAUP VIDHANASABHA CONSTITUENCY,
     UDUPI - 574 106.

2.   STATION HOUSE OFFICER
     KAUP PS,
     REPRESENTED BY SPP
     HIGH COURT OF KARNATAKA BUILDING,
     BENGALURU - 560 001.
                                          ...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP.)
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                                       NC: 2024:KHC:47719
                                   CRL.P No. 8919 of 2024
                                C/W WP No. 15573 of 2024



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.21672/2024 ON THE FILE OF THE
LEARNED XLII A.C.J.M BENGALURU FOR THE ALLEGED
OFFENCE P/U/S 188 OF IPC INCLUDING THE PCR
NO.8575/2024 FILED BY THE RESPONDENT NO.1 (PRODUCED
IN DOCUMENT NO.1 AND 2)


IN WP NO. 15573/2024

BETWEEN:

1.   SRI KOTA SRINIVASA POOJARI
     S/O. ANNAPPA POOJARI,
     AGED ABOUT 65 YEARS,
     MEMBER OF PARLIAMENT,
     UDUPI-CHIKKAMAGALURU CONSTITUENCY,
     KARNATAKA,
     NO.1-16, NEAR N.H 66, KOTA,
     KOATHATTU,
     UDUPI - 576 221.

2.   SRI SURESH KUMAR SHETTY GURME
     S/O. PRABHAKAR SHETTY,
     AGED ABOUT 61 YEARS,
     MEMBER OF LEGISLATIVE ASSEMBLY,
     KAUP CONSTITUENCY,
     KARNATAKA,
     PADMASHRI, GURME HOUSE,
     KALTHUR,
     UDUPI - 574 106.

3.   SRI LALAJI R. MENDON
     S/O. R.D.MENDON,
     AGED ABOUT 64 YEARS,
     EX-MEMBER OF LEGISLATIVE ASSEMBLY,
     KAUP CONSTITUENCY,
                            -4-
                                        NC: 2024:KHC:47719
                                    CRL.P No. 8919 of 2024
                                 C/W WP No. 15573 of 2024



     KARNATAKA,
     NO. 3-80(B), SHRAVANA VARUNA KOPPALANGADI,
     NEAR NH-66, PADU VILLAGE - 574 106,
     UDUPI.

4.   MANAGEMENT BOARD TRISHA COLLEGE
     KATAPADY, KAUP TALUK - 574 106,
     REPRESENTED BY PRESIDENT,
     SRI GOPALAKRISHNA N.S.,
     S/O N.SRIDHAR BHAT
     AGED ABOUT 47 YEARS,
     UDUPI - 574 110.
                                     ...PETITIONERS

(BY SRI ARUNA SHYAM M., SR.COUNSEL FOR

     SRI. SUYOG HERELE E., ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     THROUGH FLYING SQUAD OFFICER
     SRI. VISHWANATH SHETTY,
     F.S.T.-2 OFFICER,
     121 KAUP VIDHANSABHA CONSTITUENCY,
     UDUPI-574 106.
                                    ...RESPONDENT

(BY SRI B.N.JAGADEESHA, ADDL.SPP)

      THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.
11487/2024 FOR THE ALLEGED OFFENCES PUNISHABLE
UNDER SECTIONS 188 OF IPC INCLUDING THE
PCR.NO.4624/2024 PENDING ON THE FILE OF LEARNED
42ND ADDDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU IN ANNEXURE-A AND B.
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                                            NC: 2024:KHC:47719
                                       CRL.P No. 8919 of 2024
                                    C/W WP No. 15573 of 2024



     THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:


CORAM:     HON'BLE MR JUSTICE M.NAGAPRASANNA


                        ORAL ORDER

The petitioners in Crl.P.No.8919 of 2024 are before this

Court calling in question the proceedings in C.C.No.21672 of

2024 (PCR No.8575 of 2024) and petitioners in W.P.No.15573

of 2024 are calling in question the proceedings in C.C.No.11487

of 2024 (PCR No.4624 of 2024), both registered for offence

punishable under Section 188 of the IPC, pending on the file of

42nd Additional Chief Metropolitan magistrate, Bengaluru.

2. Heard Sri Aruna Shyam M, learned senior counsel

appearing for petitioners and Sri B N Jagadeesha, learned

Additional State Public Prosecutor appearing for respondents, in

both the petitions.

3. The learned counsel 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

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Crl.P.No.7228 of 2023 c/w W.P.No.14239 of 2023,

disposed on 27.02.2024, wherein the Coordinate Bench has

held as follows:

"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 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

NC: 2024:KHC:47719

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.

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."

NC: 2024:KHC:47719

4. In the light of the order passed by the coordinate

bench (supra) and for the reasons mentioned therein, the

following:

ORDER

(i) Both the petitions are allowed.

(ii) The proceedings pending in C.C.No.21672 of 2024 (PCR No.8575 of 2024) in Crl.P.No.8919 of 2024 and the proceedings in C.C.No.11487 of 2024 (PCR No.4624 of 2024) in W.P.No.15573 of 2024, both registered for offence punishable under Section 188 of the IPC, pending on the file of 42nd Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioners.

Sd/-

(M.NAGAPRASANNA) JUDGE

BKP