Karnataka High Court
Sharanagowda Kandakur @ Sharanagowda ... vs State Of Karnataka on 22 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:47722
CRL.P No. 12337 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. 12337 OF 2024
BETWEEN:
1. SHARANAGOWDA KANDAKUR @
SHARANAGOWDA KANDAKUR
S/O NAGANNAGOUDA KANDAKUR
AGED ABOUT 42 YEARS,
H NO. 5/6/18/7
KHB COLONY, YADGIR,
NEAR NEW BUS STAND, YADGIR
KARNATAKA - 585 202.
MAL OF GURUMITKAL CONTITUENCY.
2. SMT. VAJRAMMA
AGED ABOUT 48 YEARS,
W/O HANAMANTHA
Digitally signed
by NAGAVENI MAGADAMPURA
Location: HIGH VTC: TATELGERA PO: TATELGERA
COURT OF SUB DISTRICT YADGIR
KARNATAKA
DISTRICT YAGDIR
KARNATAKA - 585 321.
3. SMT. JALALBEE
AGED ABOUT 42 YEARS,
W/O SALEEM
MAGADAMPURA
PASPUL, YADGIR
KARNATAKA - 585 321.
-2-
NC: 2024:KHC:47722
CRL.P No. 12337 of 2024
4. SRI SUBASHCHANDRA JAKA
@ SUBASH JAKA
AGED ABOUT 41 YEARS
S/O VEERBHADRAPPA JAKA
MAGADAMPURA
YADGIR, PASPUL
KARNATAKA - 585 321.
...PETITIONERS
(BY SMT.MALVIKA C., ADVOCATE FOR
SMT. URMILA PULLAT., ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH B.NEELAKANTAPPA
S/O NARSAPPA BELI
RAPID SQUAD,
GURMITKAL CONSTITUENCY
REPRESENTED BY THE SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI B.NEELAKANTAPPA
S./O NARSAPPA BELI
AGED ABOUT 59 YEARS,
ASSISTANT ADMINISTRATIVE OFFICER
DEPARTMENT OF ANIMAL HUSBANDRY
AND VETERINARY SERVICES, YADGIR - 585 201
MEMBER OF RAPID SQUAD,
GURUMITKAL CONSTITUTENCY.
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDLSPP FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C.,(528 OF BNSS) PRAYING TO A. SET ASIDE THE
ORDER OF COGNIZANCE DATED 12.05.2023 IN
C.C.NO.1720/2023 OF THE CIVIL JUDGE AND JMFC YADGIR; B.
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NC: 2024:KHC:47722
CRL.P No. 12337 of 2024
QUASH THE COMPLIANT AND ENTIRE PROCEEDINGS PENDING
IN C.C.NO.1720/2023 ON THE FILE OF THE CIVIL JUDGE AND
JMFC YADGIR.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners are before this Court calling in question
the proceedings in C.C.No.1720 of 2023 (PCR No.15 of 2023)
registered for the offence punishable under Section 188 of the
IPC, pending on the file of Civil Judge and JMFC, Yadgir.
2. Heard Smt Malavika C, learned counsel appearing for
petitioners and Sri B N Jagadeesha, learned Additional State
Public Prosecutor appearing for respondent No.1.
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
Crl.P.No.7228 of 2023 c/w W.P.No.14239 of 2023,
NC: 2024:KHC:47722
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
Rajashekharananda Swamiji supra. A paragraphs 8 & 10
of the judgement, it is observed as under:
NC: 2024:KHC:47722
"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:47722
4. In the light of the order passed by the coordinate
bench (supra) and for the reasons mentioned therein, the
following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings in C.C.No.1720 of 2023 (PCR
No.15 of 2023) pending on the file of Civil Judge
and JMFC, Yadgir stands quashed qua the
petitioners.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
BKP
