Karnataka High Court
Buddi Sharma vs State Of Karnataka on 7 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2025:KHC:9787
CRL.P No. 376 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 376 OF 2025
BETWEEN:
BUDDI SHARMA
S/O BALAKRISHNA SHARMA
AGED ABOUT 30 YEARS
C/O BARRYS SKY LOUNGE BAR AND RESTAURANT
317, 3RD FLOOR, 9TH C MAIN,
H R B R LAYOUT, KALYAN NAGARA,
BANGALORE - 560043
(ADDRESS OF PETITIONER AS PER
CHARGE SHEET COL NO 12)
...PETITIONER
(BY SRI. MAHESH S AND CO., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY BANASWADI POLICE STATION
Digitally signed BANGALORE
by NAGAVENI
REP. BY STATE PUBLIC PROSECUTOR,
Location: High
Court of HIGH COURT OF KARNATAKA,
Karnataka BANGALORE - 560001
2. SRI ANAND KOKKANAVAR
S/O NOT KNOWN TO PETITIONER,
AGED 40 YEARS
PSI, BANASWADI POLICE STATION, BANGALORE
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560001
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA, ADDL. SPP A/W
SMT. K.P. YASHODHA, HCGP FOR R1)
-2-
NC: 2025:KHC:9787
CRL.P No. 376 of 2025
THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS)
PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONER
HEREIN IN CC NO 60466/2024 BY REGISTERED BY THE 1ST
RESPONDENT BANASWADI POLICE STATION FOR OFFENCES UNDER
SECTION 188 AND 290 OF IPC, SECTION 31 AND 103 OF
KARNATAKA POLICE ACT 1963 AND SECTION 4 AND 21 OF
CIGARETTES AND OTHER TOBACCO PRODUCTS ACT 2003 PENDING
ON THE FILE OF THE HONBLE 11TH ADDL. C.J.M, BANGALORE AND
ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Heard the learned counsel Sri.Mahesh S., appearing for
the petitioner and the learned Additional State Public
Prosecutor Sri.B.N.Jagadeesha, along with the learned High
Court Government Pleader Smt. K.P.Yashodha, appearing for
respondent No.1.
2. The petitioner is before this Court, calling in
question the proceedings in C.C.No.60466/2024, registered for
offences punishable under Sections 188 and 290 of the IPC and
Sections 31 and 103 of Karnataka Police Act, 1963 and Section
4 and 21 of Cigarettes and Other Tobacco Products Act, 2003
NC: 2025:KHC:9787
pending on the file of the XI Additional Chief Judicial
Magistrate, Bengaluru.
3. The issue in the lis stands covered by plethora of
judgments. I deem it appropriate to quote one i.e.,
Crl.P.No.10044/2022, disposed of on 11.08.2023, wherein
this Court has held as follows:
" 3. The facts, in brief, are as follows:-
respectively. A complaint comes to be registered on
05-12-2019, alleging that at about 11.30 a.m., when the
complainant was on election duty, accused No.2 and his
associates formed an unlawful assembly and when he
tried to disperse them, altercations broke out between
accused No.2 and the Police. At that point in time,
accused No.1 is alleged to have raised his voice and
questioned the complainant as to how he can arrest him,
thereby, obstructing the complainant in the discharge of
his duties. This is the crux of the complaint that is made
against all the accused. Based upon the said complaint, a
crime comes to be registered in Crime No.271 of 2019
before Bilikere Police Station against accused Nos.1 and 2
primarily and 15 to 20 others named as accused for the
offences punishable under Sections 143, 147, 353 and
149 of the IPC. The police conduct investigation and lay a
charge sheet against 9 persons on 05-10-2021 for the
offences under Sections 143, 147, 188, 353 and 149 of
the IPC. The petitioners are accused Nos.3 to 9. The
learned Magistrate takes cognizance of the offences on
16.06.2022. It is taking of cognizance that has driven the
petitioners to this Court in the subject petition.
4. The learned counsel appearing for the petitioners
Ms. Keerthana Nagaraj would vehemently contend that
the very registration of the crime or taking of cognizance
by the learned Magistrate for offence under Section 188
NC: 2025:KHC:9787
of the IPC is contrary to law. It is her submission that in
order to prosecute an accused for an offence under
Section 188 of the IPC, the procedure prescribed under
Section 195 of the Cr.P.C. is to be followed mandatorily.
That having not been done, the very act of taking
cognizance would get vitiated. She would further contend
that Section 188 of the IPC mandates that the complaint
should be registered by the public servant lawfully
empowered. It is an admitted fact that the complainant is
not the authorized officer to register the complaint. She
would contend that there is no specific overt act against
the petitioners, in particular, to drive them into the web
of crime.
5. Per contra, the learned Additional State Public
Prosecutor would refute the submissions to contend that
the Police have filed the charge sheet and the matter is
set for further proceedings. The petitioners can as well
seek discharge before the concerned Court and therefore,
interference under Section 482 of the Cr.P.C. is
unwarranted. 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 afore-narrated facts are not in dispute. The
Police Officer i.e., the 2nd respondent is the complainant.
The allegation against the petitioners on the incident, is
as narrated hereinabove, which does not require
reiteration. The crime is registered in Crime No.271 of
2019 for offences punishable under Sections 143, 147,
353 and 149 of the IPC. There was no offence registered
under Section 188 of the IPC laid at the time of
registration of crime. The Police file a charge sheet after
investigation, after 22 months i.e., on 05.10.2021. Here
the offence under Section 188 of the IPC is added.
Whether Section 188 of the IPC can become an offence
without it being registered by an authorized officer as that
creates a bar under Section 195 of the Cr.P.C. is what is
required to be considered. The consideration of which,
NC: 2025:KHC:9787
need not detain this Court for long or delve deep into the
matter. This Court in SHASHIKALA K.S. V. STATE OF
KARNATAKA in Criminal Petition No.6812 of 2023
decided on 08.09.2023, has held as follows:
".... .... ....
2. The petitioner is before this Court calling in
question the proceedings in C.C. No.7453/2013
registered by Subramanyanagar Police Station,
Bengaluru City in Crime No.100/2013, dated 22.04.2013
for the offences punishable under Sections 171B, 171E &
188 read with Section 34 of the IPC.
3. Learned counsel appearing for the petitioner
would submit that qua the other accused, this Court has
already quashed the proceedings arising out of the very
same crime. This Court in the case of Dr. C.N.
Ashwathnarayan S/o. T.K. Narayanappa Vs. the State of
Karnataka and another in Crl.P. No.9407/2017, disposed
off on 24th April 2018, wherein it is held as under:
"Petitioner is seeking for quashing of the
proceedings in C.C.No.7453/2013 pending on the
file of VII Addl. Chief Metropolitan Magistrate,
Bangalore, registered for the offence punishable
under Sections 171(B), 171(E) and 188 r/w
Section 34 of IPC on the basis of complaint lodged
by second respondent herein. 2. The gist of
prosecution case is; second respondent was on
election duty in Malleshwaram Constituency
No.157 as MCC Flying Squad-Executive
Magistrate and while discharging his duties on
21.04.2014, he received information that accused
No.1, who is a yoga guru, had arranged a
meeting at Kranthiveera Sangollirayann Park
falling within the jurisdiction of Subramanya
Nagar Police Station and a meeting was being
held under the leadership of said yoga guru and
in that meeting, petitioner, who was a candidate
at Malleshwaram Vidhana Sabha Constituency
along with local CorporatorSmt.Shashikala
Krishnegowda was participating in the said
meeting held by yoga guru Sri.Subhash and after
the meeting, breakfast had been arranged
without obtaining permission from the Election
Officer and on reaching the venue, he found such
meeting being held. Hence, alleging that accused
had violated election rules, a complaint came to
be lodged, which was registered in
Cr.No.100/2013 and after completion of
NC: 2025:KHC:9787
investigation, charge sheet came to be filed
against petitioner for the offences punishable
under Sections 171(B), 171(E) and 188 r/w
Section 34 of IPC. Hence, petitioner is before this
Court calling in question the registration of same
and praying for quashing of said proceedings. 3.
Heard Sri.Shanthi Bhushan.H, learned counsel
appearing for petitioner and Sri.Rachaiah, learned
HCGP appearing for first respondent - State.
Perused the records. 4. As could be seen from the
case records, offences alleged against petitioner
are punishable under Sections 171(B) and 171(E),
which are cognizable offences and as such, prior
to registration of FIR, jurisdictional police ought to
have obtained permission from the jurisdictional
magistrate, which is conspicuously absent in the
instant case. Insofar as, offences punishable
under Section 188 of IPC, the bar contained in
Section 195 of Cr.P.C. would come into play
namely, prosecution can be initiated for said
offence only by a competent officer by filing a
complaint before the Court as otherwise the Court
before whom proceedings is continued on the
basis of police report, would not be empowered to
take cognizance of said offence. 5. In the instant
case, prosecution has been initiated for the
offence committed under Section 188 of IPC on
the basis of a police report and not on the basis of
complaint lodged in writing by the competent
officer, who is empowered to do so. In that view
of the matter, proceedings initiated against
petitioner if allowed to be continued and is
directed to undergo the ordeal of trial, it would be
an abuse of process of law."
4. Insofar as the other accused is concerned, the
Co-ordinate Bench of this Court has quashed the
proceedings in the case of Subhash Vs. the State of
Karanataka and another in Crl.P. No.9234/2017,
disposed off on 22nd June 2018, wherein it is held as
under:
"2. Petitioner is arrayed as accused no.2 in
C.C.No.7453/2013 pending on the file of VII Addl.
CMM Court, Bangalore registered for the offences
punishable under Sections 171(B), 171(E), 188
read with Section 34 IPC on the basis of the final
report submitted by the 2nd respondent under
Section 173 Cr.P.C. 3. This Court had an occasion
to deal with the same matter so far as accused
no.1 is concerned. Ultimately, after a reasoned
NC: 2025:KHC:9787
order, this Court has quashed the proceedings
against accused no.1. The same has to be made
applicable so far as this petitioner is concerned. 4.
This Court has categorically observed that under
Sections 171B and 171E they are non-cognizable
offences and so far as offence under Section 188
IPC the Police have no jurisdiction to investigate
in view of the bar contained in Section 195
Cr.P.C. Therefore, considering the said legal
lacunae in the case, the Court has quashed the
proceedings against accused no.1. Under the
above said circumstances, the same order holds
good so far as the petitioner is concerned."
5. In the light of the aforesaid orders answering
the issue that is called in question in the case at hand,
the further consideration or deeper dwelling in the
matter would become unnecessary."
It is also germane to notice the judgment of the High
Court of Madras in the case of JEEVANANDHAM v.
STATE reported in 2018 SCC OnLine Mad 13698,
wherein it is held as follows:-
"19. From the above judgments, it is clear that in
order to prosecute an accused for an offence punishable
under Section 188 of IPC, it is mandatory to follow the
procedure prescribed under Section 195 of the Code,
else, such action is rendered void ab initio. The object of
the provision is to provide for a particular procedure,
which gives authority only to the public servant. The
legislative intent is to prevent an individual or a group of
persons from facing criminal prosecution instituted upon
insufficient grounds by persons actuated by malice, ill
will, or frivolity of disposition and to save the time of
Criminal Courts from being vexed by endless
prosecution. Section 195 of Cr.P.C. is an expansion to
the general rule contained under Section 190 of Cr.P.C,
wherein, any person can set the law in motion by
making a complaint.
20. Therefore, it is very clear from the above
judgments that there must be a complaint by a public
servant, who is lawfully empowered, whose lawful order
has not been complied with. The provisions of Section
195 of Cr.P.C. are mandatory and non-compliance, with
it, will make the entire process void ab initio, being
without jurisdiction.
NC: 2025:KHC:9787
21. The submission of the learned Additional
Public Prosecutor to the effect that Section 188 of IPC is
a cognizable offence, and therefore, the Police Officer is
entitled to proceed under Section 154, 156 and 157 of
Cr.P.C, is not sustainable. The offence being cognizable
by itself, does not enable the Police Officer to register an
FIR for an offence under Section 188 of IPC. The reason
being, such registration of an FIR has to necessarily end
with a Police Report under Section 173(2) of Cr.P.C,
which is specifically barred under Section 195 of Cr.P.C.
The definition of a complaint under Section 2(d) of
Cr.P.C. itself makes it clear that a complaint does not
include a Police Report. The Hon'ble Supreme Court has
gone to the extent of saying that such a Final Report,
which is taken cognizance will make the entire
proceedings void ab initio which would necessarily mean
that the registration of the FIR for an offence under
Section 188 of IPC will also become void.
22. There is one more analogy, which can be
used here. Section 195(1)(b) of Cr.P.C. prohibits any
complaint for an offence that is committed during Court
proceedings. Such offence committed during Court
proceedings like forgery, impersonation, perjury etc., by
itself may be cognizable in nature, but that does not
empower the Police Officer to register an FIR and
complaint in such cases can be given only by the Court
concerned. Therefore, the nature of the offence does not
give a right to the Police Officer to register an FIR and
investigate and file a Final Report, when those offences
fall within the category enumerated under Section 195
of Cr.P.C. Therefore, the arguments of the learned
Additional Public Prosecutor in this regard is not
sustainable.
23. The next argument of the learned Additional
Public Prosecutor to the effect that since a Police Officer
is also a public servant under Section 21 of IPC, his Final
Report filed before the Court under Section 173(2) of
Cr.P.C. must be construed as a complaint under Section
195(1)(a)(i), is also not sustainable. The word used
under Section 188 of IPC is "public servant lawfully
empowered" and the word used in Section 195(l)(a)(i) is
"public servant concerned". The very terminology that
has been used in the provision makes it clear that not all
public servants falling under Section 21 of IPC can give a
complaint in writing, it is only the public servant who has
been specifically authorised, by a specific order in this
regard, who can file a written complaint before the
concerned Judicial Magistrate Court.
NC: 2025:KHC:9787
24. It is true that a Police Officer by virtue of the
power given under Section 41 of Cr.P.C, will have the
authority to arrest a person, without any warrant or
order from a Magistrate, when a cognizable offence is
committed in his presence or in order to prevent the
committing of a cognizable offence. This power by itself
will not vest the Police Officer to register an FIR for an
offence under Section 188 of IPC. After the arrest, the
concerned Police Officer is duty bound to inform the
public servant authorised about the offence committed
under Section 188 of IPC and the public servant
thereafter, has to proceed in accordance with the
procedure under Section 195(l)(a)(i) of Cr.P.C. In other
words, the power of the Police Officer to arrest a person
committing a cognizable offence, is only a preventive
action and thereafter the procedure to be followed is
guided by Section 195(l)(a)(i) of Cr.P.C.
... ... ...
29. In view of the discussions, the following
guidelines are issued insofar as an offence under Section
188 of IPC, is concerned:
a) A Police Officer cannot register an FIR for any of
the offences falling under Section 172 to 188 of
IPC.
b) A Police Officer by virtue of the powers conferred
under Section 41 of Cr.P.C. will have the
authority to take action under Section 41 of
Cr.P.C, when a cognizable offence under Section
188 IPC is committed in his presence or where
such action is required, to prevent such person
from committing an offence under Section 188 of
IPC.
c) The role of the Police Officer will be confined only
to the preventive action as stipulated under
Section 41 of Cr.P.C. and immediately thereafter,
he has to inform about the same to the public
servant concerned/authorised, to enable such
public servant to give a complaint in writing
before the jurisdictional Magistrate, who shall
take cognizance of such complaint on being prima
facie satisfied with the requirements of Section
188 of IPC.
d) In order to attract the provisions of Section 188
of IPC, the written complaint of the public servant
- 10 -
NC: 2025:KHC:9787
concerned should reflect the following ingredients
namely;
i) that there must be an order promulgated
by the public servant;
ii) that such public servant is lawfully
empowered to promulgate it;
iii) that the person with knowledge of such
order and being directed by such order to
abstain from doing certain act or to take
certain order with certain property in his
possession and under his management,
has disobeyed; and
iv) that such disobedience causes or tends to
cause;
(a) obstruction, annoyance or risk of it
to any person lawfully employed;
or
(b) danger to human life, health or
safety; or
(c) a riot or affray.
e) The promulgation issued under Section 30(2) of
the Police Act, 1861, must satisfy the test of
reasonableness and can only be in the nature of a
regulatory power and not a blanket power to trifle
any democratic dissent of the citizens by the
Police.
f) The promulgation through which, the order is
made known must be by something done openly
and in public and private information will not be a
promulgation. The order must be notified or
published by beat of drum or in a Gazette or
published in a newspaper with a wide circulation.
g) No Judicial Magistrate should take cognizance of
a Final Report when it reflects an offence under
Section 172 to 188 of IPC. An FIR or a Final
Report will not become void ab initio insofar as
offences other than Section 172 to 188 of IPC
and a Final Report can be taken cognizance by
the Magistrate insofar as offences not covered
under Section 195(l)(a)(i) of Cr.P.C.
- 11 -
NC: 2025:KHC:9787
h) The Director General of Police, Chennai and
Inspector General of the various Zones are
directed to immediately formulate a process by
specifically empowering public servants dealing
with for an offence under Section 188 of IPC to
ensure that there is no delay in filing a written
complaint by the public servants concerned under
Section 195(1)(a)(i) of Cr.P.C."
The High Court of Madras has clearly laid down the
guidelines when offence under Section 188 of the IPC is
to be alleged. Therefore, the very act of bringing the act
as an offence punishable under Section 188 of the IPC in
the teeth of the bar under Section 195 of the Cr.P.C.
would vitiate the entire proceedings. If further
proceedings are permitted to continue in the teeth of the
aforesaid facts, where no overt act is even alleged against
the petitioners, even in the charge sheet, it would run foul
of the judgment of the Apex Court in the case of STATE
OF HARYANA v. BHAJAN LAL reported in 1992 Supp
(1) SCC 335, wherein it is held as follows:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
- 12 -
NC: 2025:KHC:9787
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the
concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
(Emphasis supplied)"
4. In the light of the order passed by this Court
(supra) and for the reasons aforementioned, the following:
- 13 -
NC: 2025:KHC:9787
ORDER
(i) The Criminal Petition is allowed;
(ii) The proceedings in C.C.No.60466/2024, pending on
the file of the XI Additional Chief Judicial
Magistrate, Bangalore, qua the petitioner, stand
quashed; and
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of the petitioner under
Section 482 of Cr.P.C. and the same shall not bind
or influence the proceedings against other accused
pending before the concerned Court.
Sd/-
______________________
JUSTICE M.NAGAPRASANNA
KG
