Karnataka High Court
Manjunatha vs State Of Karnataka By on 14 February, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 3178 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 3178 OF 2023
BETWEEN:
1. MANJUNATHA
S/O PRABHULINGAPPA,
AGED ABOUT 29 YEARS,
R/AT NO.2799/10,
BEHIND SAPTHAGIRI HOSTEL,
BASAVESHWARANAGAR,
KUNDAWADA ROAD,
DAVANAGERE-577 004.
2. ADARSHA
S/O MANJUNATHA S.B.,
AGED 26 YEARS,
R/AT NO.1966, BASAVA SADANA,
9TH CROSS, "A" BLOCK,
Digitally signed by
SS LAYOUT,
MAYAGAIAH DAVANAGERE-577 004.
VINUTHA
...PETITIONERS
Location: HIGH
COURT OF
KARNATAKA (BY SRI. VISHNUMURTHY, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
VIDYANAGAR P.S.,
DAVANAGERE-577 005.
2. NARENDRASWAMY
WORKING AS CPC - 145.
VIDYANAGAR POLICE STATION,
DAVANAGERE-577 005.
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CRL.P No. 3178 of 2023
BOTH AR R/P BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENTS
(BY SMT. RASHMI JADHAV, ADDL. SPP FOR R1 & R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS AGAINST THEM IN
C.C.NO.2657/2021, FOR AN OFFENCE P/U/S 78(vi) OF
KARNATAKA POLICE ACT 1963, PENDING ON THE FILE OF THE
I ADDL.CIVIL JUDGE (SR.DN) AND J.M.F.C DAVANAGERE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioners seek the following relief:
"Wherefore, the petitioners above named
humbly prays that this Hon'ble court may be pleased
to quash the entire proceedings against them in
C.C.No.2657/2021, for an offence u/s 78(vi) of
Karnataka Police Act-1963, pending on the file of 1st
Addl. Civil Judge (Sr.Div) and JMFC, Davanagere in
the interest of justice."
2. Heard learned counsel for the petitioners and
learned Addl. SPP and perused the material on record.
3. A perusal of the material on record would indicate
that on 27.03.2019, respondent No.2 filed a compliant against
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the petitioner for the offence punishable under Section 78(A)(b)
of the Karnataka Police Act, 1963, which is non-cognizable
offence. In pursuance of the said complaint, the complaint is
registered as NCR No.17 of 2019, the respondent-Police
submitted a requisition to the learned Magistrate and learned
Magistrate granted permission by passing a cryptic, laconic,
non-speaking and unreasoned order without any application of
mind by simply saying 'permitted', which is contrary to the
principles laid down by this Court in the case of Vaggeppa
Gurulinga Jangaligi v. State of Karnataka reported in ILR
2020 KAR 630, wherein it held as under:
"This petition is filed under Section 482 of Cr.
P.C., seeking to quash the entire proceedings in CC
No. 3397/2019 pending on the file of IV Additional
Civil Judge, Athani for the offence punishable under
Section 87 of the Karnataka Police Act (hereinafter
referred to as "K.P. Act" for short).
2. The brief facts of the case are as follows:--
One Mr. H.N. Shirahatti, PSI Kagwad Police
Station filed a complaint before the SHO of Kagwad
Police Station stating that on 23.09.2019 at about
18.15 hours, when he was in the Police Station he
received credible information, that within the limits
of Mole Village near Laxmi Temple, some persons are
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playing gambling called "Andar Baahar" for their
personal benefit, contrary to law and illegally.
Thereafter, he informed the same to Dy. S.P. Athani
and CPI Athani, telephonically and as per their
instructions and direction, himself along with staff
proceeded to the said spot. They reached the spot at
19.30 hours and they stood little away and watched
and found that certain persons were saying Yakka
means Rs. 100/- etc. and they conducted raid and
caught hold 13 persons and recovered cash of Rs.
10,250/-. On the basis of the complaint, the SHO
registered Crime No. 123/2019 for offence under
Section 87 of K.P. Act. Subsequently, after
investigation, a charge sheet was filed against the
petitioner and other accused for the offence
punishable under Section 87 of the K.P. Act.
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
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informant to the 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 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.
4. Heard the Learned Counsel for the petitioner
and the Learned High Court Government Pleader.
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
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proceedings initiated against the petitioner are
vitiated and are liable to be quashed.
6. Learned Counsel for the petitioner has relied
on the orders of this Court passed in several cases in
support of his submission.
7. Per contra, Learned High Court Government
Pleader submitted that the jurisdictional Magistrate
has permitted the concerned Police to take up
investigation and therefore, there is compliance of
Section 155(2) of Cr. P.C.
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-
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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."
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
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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 [(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-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.
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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 [ 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:--
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"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
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
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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."
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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.
14. This Court in the case of Padubidri
Members Lounge v. Director General and Inspector
General of Police [ W.P. Nos. 42073-75/2018 DD :
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 prescribedform 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
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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 v. The State of Karnataka [ 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 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
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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
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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
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.
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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
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initialing, the Magistrate shall also endorse on
the report whether the same has been
received by the post or muddam.
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.
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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 police officer to
investigate the non-cognizable offence.
v) In case the Magistrate passes the orders
permitting the investigation, he/she shall
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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
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Cr. P.C., is allowed and the said proceedings are
hereby quashed as against the petitioner is
concerned.
24. Registry is directed to forward the copy of
the order to the Director of Karnataka State Judicial
Academy, Bengaluru, for information and necessary
action.
25. Registry is also directed to circulate the
copy of the order to all the judicial Magistrates in the
State to follow guidelines laid down in the order."
4. In the instant case, a perusal of the permission
granted by the learned Magistrate in favour of the respondent-
police authorities to investigate the alleged offence is by stating
as under:
"Received through by H.C B No.302 of
Vidyanagar P.S. at 9-15 p.m. Perused the same.
Satisfied. Thus permission is accorded as sought."
5. A perusal of the aforesaid permission said to have
been granted by the learned Magistrate is sufficient to come to
the conclusion that the same runs foul of the judgment of this
Court in Vaggeppa Gurulinga Jangaligi's case supra and
consequently, impugned proceedings deserves to be quashed.
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6. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned proceedings in
C.C.No.2657/2021 pending on the file of the
1st Additional Civil Judge (Sr.Div.) and
JMFC, Davanagere, arising out of Crime
No.42/2019, is hereby quashed, qua the
petitioners.
.
SD/-
(S.R.KRISHNA KUMAR)
JUDGE
VM
