Karnataka High Court
Praveen vs The State Of Karnataka By on 2 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 8217 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8217 OF 2024
BETWEEN:
PRAVEEN
S/O KALURAM,
AGED ABOUT 34 YEARS,
OCC: BUSINESS,
R/O TIRUPPALLAYYAKERE,
RAMASHETTY PARK
OPP. TEMPLE,
SHIVAMOGGA - 577 201.
...PETITIONER
(BY SRI. R B DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
DAVANAGERE CEN CRIME POLICE STATION,
Digitally signed DAVANAGERE - 577 001.
by NAGAVENI
(REPRESENTED BY STATE PUBLIC PROSECUTOR,
Location: HIGH
COURT OF HIGH COURT BUILDINGS,
KARNATAKA BENGALURU - 560 003)
...RESPONDENT
(BY SMT. SOWMYA R., HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
CRIMINAL PROCEEDINGS IN CC.NO.658/2024 PENDING ON THE FILE
OF III ADDITIONAL CIVIL JUDGE AND JMFC, DAVANAGERE, IN
CR.NO.62/2023 OF DAVANAGERE CEN CRIME P.S., DAVANAGERE,
CHARGE SHEETED FOR THE OFFENSE P/U/S 78(3) OF KP ACT.
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CRL.P No. 8217 of 2024
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question
proceedings in C.C.No.658/2024 pending on the file of the III
Additional Civil Judge and J.M.F.C., Davanagere registered for
offence punishable under Section 78(3) of the Karnataka Police
Act, 1963 ('the Act' for short).
2. Heard Sri. R.B.Deshpande, learned counsel appearing
for the petitioner and Smt.Sowmya R., learned High Court
Government Pleader appearing for the respondent.
3. The learned counsel for the petitioner would submit
that the issue in the case at hand stands covered by the
judgment rendered by this Court in Crl.P.No.6329/2020,
disposed of on 16.06.2023, wherein this Court has held as
follows:
" 3. Facts, in brief, germane are as follows:-
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On 15-07-2019 at about 1.45 p.m. credible
information was received that some persons were
collecting money from public for Matka at Hindisaghatta
Village, Harihara Taluk within the jurisdiction of
Malebennur Police Station. Based on the said
information, a crime comes to be registered in Crime
No.99 of 2019. Thereafter, on the said premise, a raid
was conducted on the accused and a sum of Rs.920/-
was recovered in cash. Several Matka chits and a pen
were also confiscated. On the said basis, the
respondent/Station House Officer communicates to the
jurisdictional Magistrate seeking his permission to
register a FIR. The learned Magistrate grants permission
to register the FIR on a communication made by the
Station House officer by endorsing "Perused and
registration permitted". Based upon the permission so
granted by the learned Magistrate, the Police investigate
into the issue, found the petitioner guilty of the offence
and filed a charge sheet for the offences punishable
under Section 78(3) of the Act. It is filing of the charge
sheet by the Investigating Officer on 16-07-2019
is what drives the petitioner to this Court in the subject
petition.
4. The learned counsel appearing for the
petitioner submits that the learned Magistrate has not
applied his mind while granting permission by the words
"Perused and registration permitted" which is contrary
to the law laid down by this Court in plethora of cases.
It is his further submission that without registration of
crime spot mahazar and seizure were conducted which
are impermissible in law. Since the offence alleged is
non-cognizable without the permission from the learned
Magistrate, the crime could not have been registered
and further proceedings could not have been taken up.
Even if permission is granted, such permission should
be with the application of mind.
5. On the other hand, the learned High Court
Government Pleader would submit that the charge sheet
is already filed. If the charge sheet is already filed,
there is no warrant to go back in time and consider
whether the permission granted by the learned
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Magistrate is valid or otherwise. He would submit that if
the submission of the petitioner is accepted, all the
accused will get away from imposition of penalty under
the Act. He would seek dismissal of the petition.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel
and have perused the material on record.
7. The issue lies in a narrow compass, as the
afore-narrated facts are not in dispute. What requires
consideration is the permission that is granted by the
learned Magistrate to register the crime. The Station
House Officer after conduct of a search on 15-07-
2019 communicates to the learned Magistrate seeking
permission to register a FIR. Such permission is
necessary as the offence under Section 78(3) is non-
cognizable and for a non- cognizable offence permission
of a learned Magistrate under Section 155 of the CrPC is
imperative. Section 78(3) of the Act reads as follows:-
"78. Opening, etc., of certain forms of
gaming.--
... ... ...
(3) Whoever is found gaming on any of the
objects specified in sub-section (1) in any public street
or thoroughfare or in any place to which the public
have or are permitted to have access shall, on
conviction be punished with imprisonment which may
extend to three months or with fine which may extend
to three hundred rupees, or with both."
Section 155 of the CrPC reads as follows:-
"155. Information as to non-cognizable
cases and investigation of such cases.--(1) When
information is given to an officer in charge of a police
station of the commission within the limits of such
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station of a non-cognizable offence, he shall enter or
cause to be entered the substance of the information
in a book to be kept by such officer in such form as
the State Government may prescribe in this behalf,
and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-
cognizable case without the order of a Magistrate
having power to try such case or commit the case for
trial.
(3) Any police officer receiving such order may
exercise the same powers in respect of the
investigation (except the power to arrest without
warrant) as an officer in charge of a police station may
exercise in a cognizable case.
(4) Where a case relates to two or more
offences of which at least one is cognizable, the case
shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-
cognizable."
Offence under Section 78 of the Act, as observed
hereinabove, is non-cognizable and under Section 155
of the CrPC (supra) for a non-cognizable offence,
permission of the learned Magistrate to register the FIR
is required. Section 155 has certain conditions in it.
Section 155 deals with information as to non-cognizable
cases and investigation of such cases. Sub-section (1)
mandates that when information is given to an officer
in-charge of the Police Station of a commission of
offence within the limits of such station of a non-
cognizable offence, he would enter or cause to be
entered the substance of the information in a book to be
kept by such officer and refer the informant to the
Magistrate. Sub-section (2) mandates that no Police
Officer shall investigate a non-cognizable offence
without the order of the Magistrate having power to try
such a case. Sub-section (4) mandates that where a
case relates to two or more offences of which at least
one is cognizable, the case shall be deemed to be
cognizable case notwithstanding other offences being
non-cognizable. Therefore, three factors would emerge
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from Section 155 - (i) in the case of a non-cognizable
offence the information would be recorded in a book
kept by such officer and the informant should be
referred to the Magistrate. The informant would mean
the complainant, (ii) on a non-cognizable offence
without the order of the Magistrate, no investigation can
commence and investigation can commence only on
registration of a FIR and (iii) in cases where it is an
amalgam of cognizable and non-cognizable offences, no
permission from the Magistrate is required to
investigate offences.
8. The permission that is sought in the case at
hand is granted by the learned Magistrate by the words
"perused and registration permitted". Therefore,
such one line orders of grant of permission have been
the subject matter in several cases before this Court
and the co-ordinate benches have quashed proceedings
in favour of the accused only on the ground that the
learned Magistrates have not applied their mind while
permitting registration of FIRs. In VAGGEPPA
GURULINGA JANGALIGI v. STATE OF
KARNATAKA1, a co-ordinate Bench of this Court
considering the entire spectrum of law has held as
follows:
"3. The petitioner has stated that the complaint
is misconceived, and the alleged offence is non-
cognizable as per the Code of Criminal Procedure,
1973. Therefore, the Police have no authority to
investigate the crime. It is further submitted that the
Police have not complied with mandatory requirement
of Section 155 of Cr. P.C. When the officer-in-charge
of the Police Station received information regarding
commission of non-cognizable offence, he shall enter
the same in a book to be maintained by the said
officer and refer the informant to he Magistrate.
Further, sub-Section (2) of Section 155 of Cr. P.C.,
mandates that no Police Officer shall investigate a
non-cognizable case without order of a Magistrate
having power to try such case or commit such case for
trial. The petitioner has further stated that there is no
iota of evidence that the above said mandatory
requirement are complied with. There is no speaking
order by the jurisdictional Magistrate permitting the
ILR 2020 KAR 630
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Police to take up investigation. Therefore, the
proceedings initiated against the petitioner who is
arrayed as accused No. 4 in the charge sheet are liable
to be quashed.
... ... ...
5. The Learned Counsel for the petitioner
submitted that the offence punishable under Section
87 of the K.P. Act is non-cognizable one and therefore,
as per Section 155(1) of Cr. P.C., the informant PSI
ought to have been referred to the jurisdictional
Magistrate and the jurisdictional Magistrate ought to
have passed the order, permitting the concerned
Police to take up investigation of the case and these
are the mandatory requirements of the provisions
under Section 155(1) and 155(2) of Cr. P.C. which are
not followed in the present case. Therefore, the
proceedings initiated against the petitioner are vitiated
and are liable to be quashed.
... ... ...
8. It is not in dispute that the alleged
offence punishable under Section 87 of the K.P.
Act is a non-cognizable offence. When the report
is received by the SHO of Police Station in
respect of commission of non-cognizable offence,
the SHO has to follow the mandatory procedure
prescribed under Section 155(1) and 155(2) of
Cr. P.C. Therefore, it is necessary to refer the
said provision. Section 155 of Cr. P.C., which deal
with the procedure for investigation and for
taking cognizance of non-cognizable offence
reads as follows:--
"155. Information as to non-cognizable
cases and investigation of such cases.
(1) When information is given to an officer
in charge of a police station of the commission
within the limits of such station of a non-
cognizable offence, he shall enter or cause to
be entered the substance of the information in
a book to be kept by such officer in such form
as the State Government may prescribe in this
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behalf, and refer the informant to the
Magistrate.
(2) No police officer shall investigate
a non-cognizable case without the order of
a Magistrate having power to try such case
or commit the case for trial.
(3) Any police officer receiving such order
may exercise the same powers in respect of the
investigation (except the power to arrest
without warrant) as an officer in charge of a
police station may exercise in a cognizable
case.
(4) Where a case relates to two or more
offences of which at least one is cognizable, the
case shall be deemed to be a cognizable case,
notwithstanding that the other offences are
non-cognizable."
9. Therefore, when the SHO of the Police
Station receives a report regarding commission of
non-cognizable offence, it is his duty to enter the
substance of the information in the prescribed book
and refer the informant to the Magistrate as required
under Section 155(1) of Cr. P.C. Thereafter, the
jurisdictional Magistrate is required to pass an order
permitting the Police Officer to investigate the case as
mandated by the provisions of Section 155(2) of Cr.
P.C., stated supra. Unless, the Police Officer is
permitted by an order of the jurisdictional Magistrate
to investigate the non-cognizable offence, the Police
Officer does not get jurisdiction to investigate the
matter and file a final report or the charge sheet.
10. This Court in the case of Praveen
Basavanneppa Shivalli v. State of Karnataka and
Others MANU/KA/1443/2016 [(2017) 1 AIR Kant R
461] considered the requirement of Section 155(1)
and (2) of Cr. P.C., where case relates to a non-
cognizable offence, in para 10 of the judgment this
Court has observed as follows:
"10. S. 155 of Cr. P.C. deals with the
procedure to be adopted in respect of the
information received by the Officer in charge of a
Police Station relating to commission of non-
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cognizable offence. As per sub-section (I) of S.
155 Cr. P.C. when an Officer in charge of Police
Station receives the information as to the
commission of a non-cognizable offence, he shall
enter or cause to be entered the substance of the
information in a book to be maintained by such
Officer in the prescribed form 'and refer the
informant to the Magistrate'. Sub-section (2) of
S. 155 Cr. P.C. makes it clear, that no Police
Officer shall investigate a non-cognizable case
without the order of a Magistrate having power to
tty such case or commit case for trial. Sub-
section(1) of S. 155 Cr. P.C., which casts a duty
on the station house officer who receives
information as to the commission of non-
cognizable offence to enter or cause to be
entered the information in the prescribed book
and refer the informant to the Magistrate, does
not enable the SHO himself to approach the
Magistrate and seek orders. The provision makes
it clear, that the SHO shall refer the informant to
the Magistrate, thereby, making clear that it is
for the informant to seek the orders of
jurisdictional Magistrate for issue of direction to
the police for investigation of the case. The
Magistrate, on being approached by the
informant, if orders investigation, the SHO
concerned would get jurisdiction to register the
crime, investigate the matter and not otherwise."
11. This Court in the case of Mukkatira Anitha
Machaiah v. State of Karnataka and Another in Crl.P.
5934/2009 decided on 20/8/2013 considered the
scope of Section 155(1) and (2) of Cr. P.C., has
observed in para 5 as follows:--
"5. Section 155 of Cr. P.C. deals with the
procedure to be adopted in respect of an
information received by the officer in charge of a
police station relating to commission of a non-
cognizable offence. According to sub-section (1)
of Section 155 of Cr. P.C., when an officer in
charge of the Police Station receives an
information as to the commission of a non-
cognizable offence, he shall enter or cause to be
entered the substance of the information in the
prescribed book and refer the informant to the
Magistrate. According to sub-section (2) of
Section 155 of Cr. P.C., no police officer shall
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investigate a non-cognizable case without a order
of a Magistrate having power to try such case or
commit the case for trial. Thus reading of sub-
section (1) of Section 155 of Cr. P.C. makes it
clear that the duty of the SHO, who receives
information as to the commission of a non-
cognizable offence is only to enter or cause to be
entered the substance of the information in the
prescribed book and refer the informant to the
Magistrate. It is for the informant to approach
the jurisdictional Magistrate and seek a direction
to the police for investigation. If the Magistrate
on being approached by the informant, directs
investigation, the Police Officer concerned would
get jurisdiction to investigate the matter."
12. This Court in paragraph 6 has further has
observed as follows:--
"In the case on hand, as noticed supra,
upon receipt of the report submitted by the
2nd respondent, the SHO of Virajpet Police Station
registered the same as NCR and submitted a
requisition to the jurisdictional Magistrate seeking
permission to investigate the matter, based on
which, the Magistrate granted permission. Thus,
the procedure adopted by the SHO is without the
authority of law and the same is not
contemplated under Section 155 of Cr. P.C.
Therefore, the permission granted by the
Magistrate on such requisition is also without any
basis, as such, the investigation carried on by the
police and the charge sheet filed thereon are
without the authority of law. Therefore, the
prosecution launched against the petitioner is
liable to be quashed. However, it is open to
Respondent No. 2, who is the informant before
the police to approach the jurisdictional
Magistrate and seek necessary orders as
contemplated under Section 155 of Cr. P.C."
13. Therefore, the SHO of the Police
Station has no authority of law unless the
jurisdictional magistrate permits the Police
Officer for investigation of the non-cognizable
offence.
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14. This Court in the case of Padubidri
Members Lounge v. Director General and Inspector
General of Police in W.P. Nos. 42073-75/2018 Decided
on 3/10/2012, considered the mandatory provision of
Section 155(1) and (2) of CrP.C., where the charge
sheet was filed for the offence under Section 87 of the
K.P. Act. In paragraphs 6 and 7, this Court has held as
follows:--
"6. As per the above provisions, when
an Officer-in-charge of the police station
receives an information with regard to
commission of non-cognizable offence/s, i)
he shall enter or caused to be entered the
substance of the information in a book to be
maintained by the said Officer in a
prescribed form and ii) refer the informant
to the Magistrate. Further, Sub-Section (2)
of Section 155 Cr. P.C., mandates that no
Police Officer shall investigate a non-
cognizable offence without the order of a
Magistrate having power to try such case or
commit such case for trial.
7. In the instant case, police have
failed to comply with the requirements of
Section 155(1) and 155(2) of Cr. P.C. There
is nothing on record to show that the
respondents have referred the informant to
the concerned Magistrate as required under
Section 155(1) of Cr.P.C., or obtained
necessary order as envisaged under Section
155(2) of Cr. P.C., before embarking upon
investigation. Thus, on the face of it, the
respondents are seen to have violated the
provisions of Sections 155(1) and 155(2) of
Cr.P.C."
15. Again this Court, in the case
of Veeranagouda and others vs. The State of
Karnataka in Crl.P. No. 102021/2018 decided on
11/1/2019, considered the requirements of Section
155(1) and (2) of Cr. P.C., and has held in para 9 as
follows:--
"The Counsel appearing for the petitioner'
also brought to the notice of this Court that when
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a requisition was given to the Magistrate, only an
endorsement is made as permitted to investigate
as per section 155 of Cr. P.C. on the very request
letter itself and the same is not in accordance
with law. The concerned Magistrate did not apply
his mind and passed any considered order. On
the requisition only an endorsement is made and
the same is not the permission in the eye of law.
Therefore in reality it is not permission at all and
the prosecution has not satisfied the Court that
mandatory requirements are complied before
proceeding with the investigation in the matter.
Legal aspect has not been complied and the
same has been over looked by the Court below
while ordering for registering the criminal case
against the petitioners' herein. Looking to these
materials it goes to show that it is the abuse of
process of Court to continue the proceedings. Not
only it is wasting of valuable time and energy of
the Court. Even if the trial is proceeded with, it is
a futile exercise in the matter."
16. Therefore, this Court time and again
has quashed the proceedings initiated against
the accused persons in respect of non-cognizable
offence on the ground that the mandatory
provisions of Section 155(1) and (2) of Cr. P.C.,
are not complied with. However, this Court has
not laid down any guidelines for the Learned
Magistrates as to how and in what manner they
have to pass the Order under Section 155(2) of
Cr. P.C., when a requisition is submitted to the
Learned Magistrate seeking permission to
investigate the non-cognizable offence.
17. In the cases referred above, invariably the
Learned Magistrates have passed the orders on the
requisition submitted by the SHO of the Police Station
by writing a word "permitted" or "permitted to
investigate". This Court has held that making such an
endorsement on the requisition submitted by the
Police is not passing orders and there is no application
of judicious mind in permitting the Police Officer to
take up the investigation for non-cognizable offence.
18. Under these circumstances, this Court felt
it necessary to lay down some guidelines for the
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benefit of our Judicial Magistrates as to how they have
to approach and pass orders when requisition is
submitted by the SHO of Police Station seeking
permission to investigate into the non-cognizable
offence. The provision of Section 155(1) and (2) of Cr.
P.C., referred above make it very much clear that the
SHO of the Police Station on receiving the information
regarding the commission of non-cognizable offence,
his first duty is to enter or cause to be entered the
substance of such commission in a book maintained by
such Officer and then refer the informant to the
Magistrate. This is the requirement of Section 155(1)
of Cr. P.C. Once the requisition is submitted to the
Magistrate, it is for the Jurisdictional Magistrate to
consider the requisition submitted by the SHO of Police
Station and pass necessary order either permitting the
Police Officer to take up the investigation or reject the
requisition. Section 155(2) of Cr. P.C., specifically
provides that no Police Officer shall investigate the
non-cognizable case without the order of the
Magistrate having power to try such case or commit
such case for trial. Therefore, passing an "order" by
the Magistrate permitting the Police Officer to
investigate the non-cognizable offence is an important
factor. The word without the order of the Magistrate
appearing in sub-Section (2) of Section 155 of Cr.
P.C., makes it clear that the Magistrate has to pass an
'order' which means supported by reasons. On the
other hand, in number of cases, the Jurisdictional
Magistrates are writing a word 'permitted' on the
requisition submitted by the Police itself which does
not satisfy the requirement of Section 155(2) of Cr.
P.C., Such an endorsement cannot be equated with
the word 'Order'.
19. Chapter V Rule 1 of Karnataka Criminal
Rules of Practice, 1968 also deals with investigation of
non-cognizable case. The said provision reads as
follows:--
"INVESTIGATION AND PROSECUTION
*1. Report under Section 154.--(1) On
receipt of the report of the Police Officer under
Section 154 of the Code, the Magistrate shall
make a note on the report of the date and time
of the receipt thereof and initial the same. Before
initialing, the Magistrate shall also endorse on the
report whether the same has been received by
the post or muddam.
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2. (1) When a Magistrate directs an
investigation of a case under Sections 155(2),
156(3) or 202 of the Code, he shall specify in his
order the rank and designation of the Police
Officer or the Police Officers by whom the
investigation shall be conducted."
20. Therefore, under Rule 1, the Magistrate
shall endorse on the report whether the same has
been received by post or muddam. Under Rule 2,
Magistrate has to specify in his order the rank and
designation of the Police Officer or the Police Officer by
whom the investigation shall be conducted.
Considering the mandatory requirement of Section
155(1) and (2) of Cr. P.C., and Rule 1 and 2 of
Chapter V of the Karnataka Criminal Rules of Practice,
this Court proceed to laid down the following
guidelines for the benefit of the judicial Magistrate
working in the State.
i) The Jurisdictional Magistrates shall stop
hereafter making endorsement as 'permitted ' on the
police requisition itself Such an endorsement is not an
order in the eyes of law and as mandated under
Section 155(2) of Cr. P.C.
ii) When the requisition is submitted by the
informant to the Jurisdictional Magistrate, he should
make an endorsement on it as to how it was received,
either by post or by Muddam and direct the office to
place it before him with a separate order sheet. No
order should be passed on the requisition itself. The
said order sheet should be continued for further
proceedings in the case.
iii) When the requisition is submitted to the
Jurisdictional Magistrate, he has to first examine
whether the SHO of the police station has referred the
informant to him with such requisition.
iv) The Jurisdictional Magistrate should
examine the contents of the requisition with his/her
judicious mind and record finding as to whether it is a
fit case to be investigated, if the Magistrate finds that
it is not a fit case to investigate, he/she shall reject
the prayer made in the requisition. Only after his/her
subjective satisfaction that there is a ground to permit
the police officer to take up the investigation, he/she
shall record a finding to that effect permitting the
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police officer to investigate the non-cognizable
offence.
v) In case the Magistrate passes the orders
permitting the investigation, he/she shall specify the
rank and designation of the Police Officer who has to
investigate the case, who shall be other than
informant or the complainant.
21. Coming to the case on hand, the SHO of
Kagwad Police Station received a complaint from PSI
on 23/9/2019 and SHO submitted a requisition to IV
Additional JMFC, Athani, seeking permission to
investigate the offence under Section 87 of the K.P.
Act which is a non-cognizable offence. It is seen that
the Learned Jurisdictional Magistrate has made an
endorsement on the requisition which reads as
follows:--
"Perused materials. Permitted
Sd/-"
22. Therefore, absolutely there is no
application of judicious mind by the Learned
Magistrate before permitting the Police to
investigate the non-cognizable offence much less
an order passed by the Learned Magistrate.
23. Under these circumstances, the
proceedings initiated against the petitioner in CC
No. 3397/2019 pending on the file of the IV
Additional Civil Judge and JMFC, Athani, are
liable to be quashed so far as the petitioner is
concerned. Accordingly, the petition filed under
Section 482 of Cr. P.C., is allowed and the said
proceedings are hereby quashed as against the
petitioner is concerned."
(Emphasis supplied)
If regard is had to the judgment rendered by the
co-ordinate Bench, the Magistrate ought not to grant
permission by one line orders. The co-ordinate Bench, in
fact, follows the earlier judgments rendered right from
2016."
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4. In the light of the order passed by
this Court (supra) and for the reasons aforementioned, the
following:
ORDER
(i) Criminal petition is allowed; and
(ii) The proceedings in C.C.No.658/2024 pending on
the file of the III Additional Civil Judge and
J.M.F.C., Davanagere, qua the petitioner, stands
quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
KG
