c) To quash the order of cognizance and issuance
of summons dated 18.04.2024 passed by the
Hon'ble 39th Addl. Chief Judicial Magistrate Court,
Bengaluru in C.C.No.12454/2024 arising out of
crime in crime No.544/2023 for the offences
punishable under Section 7 and 8 of the COTPA Act,
2003 (vide Annexure 'E');
d) To quash the entire proceedings in
C.C.No.12454/2024 arising out of crime in crime
No.544/2023 for the offences punishable under
Sections 7 and 8 of COTPA Act, 2003, pending
before the Hon'ble 39th Addl. Chief Judicial
Magistrate Court, Bengaluru (vide Annexure 'E');
e) To pass any other orders as this Hon'ble Court
may deem fit in the interest of justice and equity."
2. Heard the learned counsel for the petitioner and
3. A perusal of the material on record will indicate
4. In pursuance of the said complaint, the Police
5. A perusal of the material on record will clearly
6. Learned counsel for the petitioners submits that
7. Per contra, learned HCGP for respondent -State
8. Before adverting to the rival submissions, it would
Provided that the nicotine and tar contents
shall not exceed the maximum permissible quantity
thereof as may be prescribed by rules made under
this Act.
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8. Manner in which specified warning shall be
made.-(1) The specified warning on a package of
cigarettes or any other tobacco products shall be-
(a) legible and prominent;
(b) conspicuous as to size and colour;
(c) in such style or type of lettering as to
be boldly and clearly presented in distinct
contrast to any other type, lettering or graphic
material used on the package or its label and
shall be printed, painted or inscribed on the
package in a colour which contrasts
conspicuously with the background of the
package or its labels.
(2) The manner in which a specified warning
shall be printed, painted or inscribed on a package
of cigarettes or any other tobacco products shall be
such as may be specified in the rules made under
this Act.
(3) Every package containing cigarettes or any
other tobacco products shall be so packed as to
ensure that the specified warning appearing
thereon, or on its label, is, before the package is
opened, visible to the consumer."
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9. It is an undisputed fact that the aforesaid
offences punishable under Sections 7 and 8 of the COTPA
are non-cognizable offences and in the absence of
requisite permission being obtained from the learned
Magistrate under Section 155(2) of Cr.P.C. as held by this
Court, the impugned proceedings deserve to be quashed.
10. In an identical circumstance, in the case of
Mr. Narendra Babu and Another Vs. State of Karnataka
and Another in Criminal Petition No.8782/2025 disposed
of on 16.07.2025, this Court has passed the following
order:
"In this petition, petitioners seek for the following
reliefs:-
" a) Quash the FIR baring No.69/2025 registered with
the Respondent No.1 S.J.Park Police Station; wherein the
Petitioners herein are arraigned as Accused NO.1 and 2
respectively for the alleged offence under Section 36 of the
Karnataka Excise Act, 109 of the Karnataka Police Act and
Section 7 and 21 of the Cigarettes and Other Taobacco Products
Act (COTPA) Act 2003 (Annexure-A and A1), pending before
Hon'ble 48th Addl. CMM Court, Nrupatunga Road, Bangalore City.
b. Grant such other relief that this Hon'ble Court may
deem fit in the facts of the present matter."
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2. Heard learned counsel for the petitioners and
learned Addl.SPP for the respondents - State and perused
the material on record.
3. A perusal of the material on record will indicate that
the 1st petitioner is running a Bar and Restaurant under the
name and style "Lovers Night Bar and Restaurant" and on
19.06.2025, a raid was conducted at the said premises,
pursuant to which, the respondents filed the impugned
complaint dated 20.06.2025 registered as FIR in Crime
No.69/2025 for offences punishable under Section 36 of the
Karnataka Excise Act, Section 109 of Karnataka Police Act
and Sections 7 and 21 of the COTPA Act, 2003. In this
context, it is relevant to state that all the aforesaid offences
being non-cognizable offences, it is incumbent upon the
respondents to obtain necessary permission from the
learned Magistrate as mandated under Section 155(2) of
Cr.P.C. / Section 174(2) of BNSS, 2023 and as held by this
Court in Vaggeppa Gurulinga Jangaligi Vs. State of
Karnataka - ILR 2020 KAR 630; Sri.Krishnappa M.T. and
another Vs. State of Karnataka and another -
Crl.P.No.13215/2023 dated 07.11.2024 and Sri.L.S.Tejasvi
Surya Vs. State of Karnataka and Ors -
Crl.P.No.9961/2021 dated 15.02.2022.
4. In Vaggeppa's case supra, a co-ordinate Bench
of this Court held as under:
" 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
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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. 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 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
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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.
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."
5. In M.T.Krishnappa's case supra, a co-ordinate
Bench of this Court held as under:
'9. The offences alleged are the ones punishable
under Section 504 and 34 of the IPC. They are admittedly
non cognizable. Therefore, a non-cognizable report was
rendered by the jurisdictional police, after interaction on
24.08.2020. The Station House Officer then travels to the
Court of the Magistrate seeking permission for registration
of a crime for offences punishable under Sections 504 and
34 of the IPC, since the offences alleged were non-
cognizable, the nod of the Magistrate under Section 155(2)
of the Cr.P.C. was imperative. The learned Magistrate
passes the following order:
"The PSI of Turuvekere Police Station approached with
requisition seeking permission to proceed with the investigation
of non-cognizable case.
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It is mentioned that the complainant lodged the written
information about alleged insult caused by the proposed accused
persons.
As per Section 155(2) of Cr.P.C., there is a bar for the
police officer to proceed with the investigation of the non-
cognizable case without the order of a Magistrate having
jurisdiction to try the case or commit the case for trial.
When, police officer received, the information about non-
cognizable case, then necessarily seek from permission the
Jurisdictional magistrate to proceed with the investigation.
By considering the request and information of the
complainant, it is revealed that the information in a non-
cognizable case is received by the police officer. In the
interest of justice, it is proper to accord permission to
proceed in accordance with Law."
The learned Magistrate records that the Police
Officer receives the information about a non-cognizable
offence, then necessarily has to seek permission from
jurisdictional Magistrate, to proceed with the investigation.
This is the procedure that is narrated in the order. The so
called application of mind by the learned Magistrate is only
in the words
'"By considering the request and information of the
complainant, it is revealed that the information in a non-
cognizable case is received by the police officer. In the
interest of justice, it is proper to accord permission to
proceed in accordance with Law."
10. The afore-quoted words of the learned Magistrate can
by no stretch of imagination be an order, which bears application
of mind.
11. The learned Additional State Public Prosecutor
seeks to defend this action on the score that it is a lengthy order
and it does bear application of mind. I decline to accept the said
submission as what is required in law, while the Magistrate grants
permission to register a crime, is application of mind, which is
ostensibly absent in the afore-quoted paragraph. Therefore, it is
not an order that has even a semblance of application of mind. It is
rather shocking that Magistrates while granting permission, do not
apply their mind and callously grant permission to register the
crime while passing orders under Section 155(2) of the Cr.P.C.
These acts of passing orders, which bear no reasons or
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application of mind, have resulted in docket explosion before this
Court. Therefore, time and again this Court has directed the
Magistrates not to indulge in passing of such orders. The
Magistrates are still passing the same orders, as if it is a
frolicsome act.
12. In the case at hand, the afore-quoted paragraph is the
reason. It is in fact an order which has no reasons. Merely
passing lengthy orders, only to fill up the pages, will not mean an
order on application of mind. It is the application of mind that is
necessary in law and not application of ink; it is not the flow
of ink on the paper that is necessary in law, but flow of
content depicting such application of mind."
6. In L.S.Tejasvi Surya's case supra, a co-ordinate
Bench of Court held as under:
"Learned High Court Government Pleader
accepts notice for the respondents.
2. Petitioner has sought for quashing of the
proceedings pursuant to F.I.R. No.51/2019. Petitioner has
also sought for quashing of the charge sheet dated
02.07.2019 and also for quashing the entire proceedings
arising out of C.C.No.3077/2020 pending before the II
Additional Chief Metropolitan Magistrate, Bangalore.
3. The petitioner submits that pursuant to the
information made out by a counsel to the 2nd respondent on
17.04.2019, the 2nd respondent filed a complaint before the
1st respondent on the same day. The allegation made
out was that one Sri. Narayanappa had got printed about
2000 copies of pamphlets on behalf of the petitioner herein
who was the BJP candidate and distributed the same
without mentioning name and address of the printer and
publisher and accordingly, committed offence under Section
127A of the Representation of People Act, 1951 (for short
'the Act') and action was sought for as regards the said
offence. It is submitted that information was then made out
to the Magistrate as per Annexure-C requesting for
permission to commence investigation. On the basis of
written requisition at Annexure-C, Magistrate has endorsed
the word 'permitted'.
4. It is submitted that such endorsement is not in
consonance with the requirement under Section 155(2) of
Cr.P.C and is clearly in violation of the directions passed by
this Court in the case of Vaggeppa Gurulinga Jangaligi
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(Jangaligi) vs. The State Of Karnataka - ILR 2020 KAR
630.
5. It is further submitted that though the offences
made out in the FIR were 127(2) and 127A of the Act and
171F of IPC, the charge sheet that came to be filed after
investigation only made out offence of Section 127A of the
Act. Accordingly, it is submitted that the proceedings
consequent to the permission given by the Magistrate
requires to be set aside on the sole ground that the order is
not in consonance with the requirements of Section
155(2) of Cr.P.C. Learned counsel for the petitioner would
also contend that even on merits, the proceedings are
liable to be quashed as the requirement under Section
127A is only as regards to the person who prints and
cannot in any way lead to proceedings to be carried out
as against the petitioner who was the candidate.
6. Insofar as the contention that permission
given by the Magistrate is contrary to the mandate under
Section 155(2) of the Act, the said contention requires to be
accepted. This Court in the judgment in the case of
Vaggeppa (supra) has pointed out the procedure to be
followed while granting permission for investigation.
Relevant observation made by the Coordinate Bench of this
Court at paragraph No.20 is extracted hereunder:
"20. Therefore, under Rule I, the Magistrate shall
endorse on the report whether the same has been
received by post or muddam. Under Rule 2, the
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 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
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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 specify the
rank and designation of the Police Officer who has
to investigate the case, who shall be other than
informant or the complainant."
7. Clearly, the requirement that is made out is that
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 and direct
the office to place it before him with a separate order
sheet. The Court has clarified that no order should be
passed on the requisition itself and that the entry to be
made in that regard is to be made in the order sheet and
the said order sheet should be continued for further
proceedings. Further direction has been passed at sub-
para (iv) of paragraph No.20 of the judgment extracted
above which also requires the Magistrate to examine the
contents of the requisition and record a finding as to
whether it is a fit case to be investigated and that if the
Magistrate finds that it is not a fit case to be
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investigated, he shall reject the prayer made in the
requisition. It is further pointed out that only after his
subjective satisfaction that there is a ground to permit the
police officer to take up the investigation, he shall record a
finding to that effect permitting the police officer to
investigate the non-cognizable offence.
8. It is also clarified that Annexure-C is a plea
made by the 2nd respondent. In accordance with the
mandate under Section 155(2) of Cr.P.C., the
informant is to be referred to the Magistrate which is
preceded by the officer in-charge of the police station
having made out necessary entry of the substance of the
information in the book kept as mandated under Section
155. The Magistrate is to examine the informant and the
complaint given by him and then proceed further.
9. Clearly, the said procedure that has been laid
down in the judgment referred to above has not been
followed in the present case. In light of the same, the
endorsement of the Magistrate dated 18.04.2019 is set
aside and the matter is relegated to the stage of the
informant being referred to the Magistrate in terms of the
procedure prescribed under Section 155(1) of Cr.P.C.
While it requires to be noticed that as per the observation
in sub- para (iv) of paragraph No.20 of the judgment
extracted above, the Magistrate is required to apply his
mind as to whether permission for investigation needs to
be granted and accordingly, it would not be appropriate in
the present proceedings to address the other contentions
raised by the petitioner as regards to the proceedings to
be bad in law as ingredients of Section 127A of the Act are
not satisfied. The said aspect, needless to state is a
matter to be considered by the Magistrate before granting
permission by passing an order under Section 155(2) of
Cr.P.C.
10. Accordingly, the petition is disposed off
subject to observations made above."
7. In the instant case, I am of the view that in the
absence of obtaining necessary permission from the learned
Magistrate as required under Section 155(2) of Cr.P.C. /
Section 174(2) of BNSS, 2023 and the principles enunciated
in the aforesaid judgments supra, the impugned proceedings
deserve to be quashed.
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8. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) Further proceedings arising out of FIR in Crime
No.69/2025 registered by the 1st respondent - Police,
pending on the file of 48th Addl.CMM court, Bangalore, for
offences punishable under Sections 36 of the Karnataka
Excise Act, Section 109 of Karnataka Police Act and
Sections and 21 of the COTPA Act, 2003 insofar as the
petitioners are concerned, are hereby quashed.
(iii) The respondents - Police are directed to release /
return the seized Music Player as well as speakers back to
the petitioners forthwith and immediately upon a receipt of a
copy of this order.
Hand delivery of this order is permitted."
11. A perusal of the aforesaid provisions of COTPA
will also indicate that what is prohibited is selling of
Tobacco products without taking necessary safeguards and
complying with the requirements contained in Sections 7
and 8 of the COTPA.
12. In the instant case, apart from the fact that the
material on record does not establish that the petitioners
were guilty of the alleged offences, in the light of the
specific submission made on instructions by the learned
counsel for the petitioners that the subject premises was
not being used and will not be used for the purpose of
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running a Hookah Bar, in view of the ban imposed by the
State Government, I am of the considered opinion that
the impugned proceedings deserve to be quashed.
13. In the result, I pass the following:
ORDER
i. The Criminal Petition is hereby allowed;
ii. The impugned proceedings pending in
C.C.No.12454/2024(arising out of Crime
No.544/2023 of HSR Layout Police Station),
pending on the file of the learned 39th
Additional Chief Judicial Magistrate at
Bengaluru, for the offences punishable
under Sections 7 and 8 of the Cigarettes and
Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and
Commerce, Production, Supply and
Distribution) Act, 2003, qua the petitioners
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herein/accused Nos.1 and 2, are hereby
quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMV*
