Karnataka High Court

Sri K J George vs State Of Karnataka on 24 October, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                            NC: 2024:KHC:43021
                                                      WP No. 28736 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 24TH DAY OF OCTOBER, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                          WRIT PETITION NO. 28736 OF 2024 (GM-RES)
                   BETWEEN:

                         SRI. K.J. GEORGE,
                         S/O LATE K.C. GEORGE,
                         AGED ABOUT 75 YEARS,
                         MEMBER OF LEGISLATIVE ASSEMBLY,
                         KARNATAKA SARVAGNANAGAR
                         CONSTITUENCY, BANGALORE,
                         R/AT NO.632, 7TH FLOOR,
                         ST. ANDREWS BUILDING,
                         EGLBP CAMPUS, OFF OF KORAMANGALA,
                         INTERMEDIATE RING ROAD,
                         BENGALURU - 560 075.
                                                                 ...PETITIONER
                   (BY SRI. SANDEEP C.T., ADVOCATE)

Digitally signed   AND:
by NAGAVENI
Location: HIGH
COURT OF           1.    STATE OF KARNATAKA
KARNATAKA
                         BY WILSON GARDEN POLICE STATION,
                         REPRESENTED BY PUBLIC PROSECUTOR,
                         THE HIGH COURT OF KARNATAKA,
                         BENGALURU - 560 001.

                   2.    SRI. A. RAJU,
                         S/O NOT KNOWN TO THE PETITIONER,
                         AGE NOT KNOWN TO THE PETITIONER,
                         POLICE INSPECTOR,
                                 -2-
                                               NC: 2024:KHC:43021
                                            WP No. 28736 of 2024




    WILSON GARDEN POLICE STATION,
    KARNATAKA - 560 051.
                                                   ...RESPONDENTS
(BY SRI. B.N. JAGADEESHA, ADDL. SPP)

     THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA R/W SEC. 482 OF CR.P.C PRAYING
TO QUASH PRIVATE COMPLAINT DATED 22.06.2022 BEARING
PCR NO. 9858/2022 IN CC 25189/2024 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 188 AND SECTION 290 INDIAN
PENAL CODE 1860 SECTION 103 OF THE KARNATAKA POLICE
ACT 1961 IN SO FAR AS THE PRESENT PETITIONER IS
CONCERNED PENDING ON THE FILE OF THE HONBLE 42ND
ADDL CHIEF METROPOLITAN MAGISTRATE (SPL COURT TO TRY
CASES AGAINST THE SITTING AS WELL AS FORMER MPS AND
MLA TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA)
PENDING AS AGAINST THIS PETITIONER WHO IS ARRAYED AS
ACCUSED NO. 3 VIDE ANNX-A AND ETC.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE M.NAGAPRASANNA


                          ORAL ORDER

The petitioner is before this Court, seeking the following

prayers:

"i) To Issue a Writ in the nature of Certiorari or any other order, direction or Appropriate Relief/Relief's to Quash Private Complaint dated 22.06.2022, bearing P.C.R No.9858/2022 in CC 25189/2024, for the offences punishable under Section 188 and Section 290 Indian Penal Code, 1860, Section 103 of the Karnataka Police Act, 1961 in so far as the present petitioner is concerned, pending on file of the 42nd Additional Chief Metropolitan Magistrate (Special Court to try cases against sitting as

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well as former MP's and MLA, triable by Magistrate in the State of Karnataka) pending as against the petitioner who is arrayed as Accused no.3 vide Annexure - 'A' and;

ii) To Issue a Writ in the nature of Certiorari or any other order, direction or Appropriate Relief/Relief's to Quash order taking cognizance and issuance of summons dated 25.07.2024 in relation to proceedings in P.C.R No.9858/2022 in CC 25189/2024, for the offences punishable under Section 188 and Section 290 Indian Penal Code, 1860 Section 103 of the Karnataka Police Act, 1961 in so far as the present petitioner are concerned, presently pending on file of the 42nd Additional Chief Metropolitan Magistrate (Special Court to try cases against siting as well as former MP's and MLA, triable by Magistrate in the State of Karnataka) pending as against the petitioner who is arrayed as Accused no.3 vide Annexure - 'B' and;

iii) Grant any such Order, Direction AND/OR any other Relief or Reliefs as this Hon'ble Court deems fit and necessary, in the facts and circumstances of the case in the interest of justice."

2. Heard Sri. Sri. Sandeep C.T., learned counsel

appearing for the petitioner, Sri. Jagadeesha B.N., learned

Addl.SPP appearing for the respondents and have perused the

material on record.

3. Learned counsel, Sri. Sandeep C.T., appearing for

the petitioner would submit that the issue in the lis stands

answered by the judgments rendered by the Co-ordinate Bench

of this Court in Crl.P.No.7228/2023 c/w W.P.No.14239/2023

dated 27.02.2024 and that of this Court in Crl.P.No.7376/2022

dated 16.08.2022.

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4. The Co-ordinate Bench of this Court in the aforesaid

judgment has quashed the proceedings on identical offences

against the other accused, wherein it has held as follows:

"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:

"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

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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."

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5. In the light of the orders passed by the Co-ordinate

Bench and that of this Court and for the reasons

aforementioned, the following:

ORDER

(i) The petition is allowed.

(ii) Proceedings pending in C.C.No.25189/2024 arising

out of PCR No.9858/2024 dated 22.06.2022 before

the 29th Additional Chief Metropolitan Magistrate and

which was subsequently transferred to 42nd Additional

(Spl. Court Trial Cases filed against sitting a well as

former MP's and MLA, triable by Magistrate in the

State of Karnataka) stand quashed qua the petitioner.

Sd/-

(M.NAGAPRASANNA) JUDGE

CT: BHK