Alphanse Franko vs State By
2025 Latest Caselaw 2546 Kant

Karnataka High Court

Alphanse Franko vs State By on 20 January, 2025

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                           NC: 2025:KHC:2141
                                                    CRL.P No. 10544 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 20TH DAY OF JANUARY, 2025

                                           BEFORE
                          THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                              CRIMINAL PETITION NO. 10544 OF 2024
                   BETWEEN:

                        ALPHANSE FRANKO,
                        S/O. BAPTIST FRANKO,
                        AGED ABOUT 62 YEARS,
                        R/AT 3-94 INCH, KUVETTU,
                        BELTANGADY TALUK, D.K. DISTRICT,
                        MOODABIDRE, MANGALORE CITY,
                        KARNATAKA - 574 214.
                                                              ...PETITIONER
                   (BY SRI. MOHAMMED TAHIR, ADVOCATE)

                   AND:

                   1.   STATE BY MOODABIDRI PS,
Digitally signed        REPRESENTED BY STATE PUBLIC PROSECUTOR,
by KAVYA R              HIGH COURT COMPLEX,
Location: High          OPP VIDHANA SOUDHA,
Court of
Karnataka               BANGALORE - 560 001.

                   2.   KANTHAPPA,
                        AGED ABOUT 53 YEARS,
                        R/AT PDO AND FLYING SQUAD OFFICER,
                        MOODABIDRE CONSTITUENCY,
                        MANGALORE CITY, KARNATAKA - 574 214.
                                                         ...RESPONDENTS
                   (BY SRI. VINAY MAHADEVAIAH, HCGP)
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                                                 NC: 2025:KHC:2141
                                         CRL.P No. 10544 of 2024




    THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528
BNSS) PRAYING TO 1. QUASH THE COGNIZANCE ORDER
DATED 22.07.2023 PASSED IN CC NO.527/2023 BY THE
LEARNED CIVIL JUDGE AND JMFC MOODABIDRI FOR THE
OFFENCE U/S 188 OF IPC AT ANNEXURE-D, WHEREIN THE
PETITIONER IS ARRAYED AS ACCUSED NO.1.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR


                          ORAL ORDER

In this petition, the petitioner seeks the following reliefs:

"1. To quash the cognizance order dated 22/07/2023 passed in CC no.527/2023 by the learned Civil Judge and JMFC Moodabidri for the offences under section 188 of IPC at Annexure-D, wherein the petitioner is arrayed as Accused No.1 in the interest of justice and equity.

2. To quash the charge sheet dated 30/06/2023 filed by the Respondent no.1 Moodabidri PS pending as CC no.527/2023 arising out of crime no. 64/2023 before the learned Civil Judge and JMFC Moodabidri for the offences under section 188 of IPC at Annexure -C, wherein the petitioner is arrayed as Accused No.1 in the interest of justice and equity.

3. To quash the order dated 09/05/2023 at Annexure-D, passed by the by the learned Civil Judge and JMFC Moodabidri on complaint made by the respondent no.2 under section 200 of CrPC for the alleged offense under section 188 of IPC against the petitioner, in the interest of justice and equity.

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4. Pass any other order which this Hon'ble court deems fit by considering the facts of this court, in the interest of justice and equity."

2. Heard learned counsel for the petitioner and learned

HCGP for the respondents and perused the material on record.

3. Learned counsel for the petitioner would invite my

attention to the material on record in order to point out that the

impugned proceedings against the petitioner for the offence

punishable under Section 188 of the IPC is not maintainable in the

absence of the procedure under Section 195(1)(a) (i) of the Cr.P.C.

being followed and consequently, the impugned proceedings

deserved to be quashed. In support of his submission, he places

reliance upon the following judgments of the Co-ordinate Benches

of this Court, which are as under:

(i) Crl.P.No.7868/2022 dated 01.09.2022

(ii) Crl.P.No.9153/2022 dated 23.01.2024

4. Per contra, learned HCGP for the respondents would

submit that there is no merit in the petition and the same is liable to

be dismissed.

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5. A perusal of the material on record will indicate that

pursuant to the complaint given by respondent No.2 dated

09.05.2023, the learned Magistrate referred the matter for

investigation under Section 156(3) of the Cr.P.C. only for the

offence punishable under Section 188 of the IPC, which is

specifically barred under Section 195 (1)(a) (i) of the Cr.P.C.

Despite the same, respondent No.1 filed the impugned FIR, which

is contrary to the aforesaid Bar envisaged under Section 195 (1)(a)

(i) of the Cr.P.C. as held by the Co-ordinate Bench of this Court in

Crl.P.No.7868/2022 dated 01.09.2022, as under:

"3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by this Court in Crl.P.No.5415/2022, disposed of on 25.07.2022 wherein, this Court held as follows:

"3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.2896/2022, disposed of on 20.06.2022, wherein this Court has held as follows:

2. Learned counsel appearing for the petitioners submits that the issue in this petition stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, which submission is accepted by the learned HCGP appearing for the respondent.

3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court, I deem it appropriate to close the

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proceedings by following the judgment so rendered by the Co-ordinate Bench of this Court. The Co- ordinate Bench has held as follows:

4. The case of the prosecution in brief is as follows:

The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

"195. Prosecution for contempt of lawful authority of public servants, for offences

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against public justice and for offences relating to documents given in evidence

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

(ii) of any abetment of, or attempt to commit, such offence; or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

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.

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

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. Hemareddy, the Hon'ble Supreme Court held as follows: