Sri Byrathi Suresha (Suresha B S) vs State Of Karnataka
2025 Latest Caselaw 5083 Kant

Karnataka High Court

Sri Byrathi Suresha (Suresha B S) vs State Of Karnataka on 17 March, 2025

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                           NC: 2025:KHC:10971
                                                        WP No. 7403 of 2025




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 17TH DAY OF MARCH, 2025
                                            BEFORE
                        THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                           WRIT PETITION NO.7403 OF 2025 (GM-RES)
                   BETWEEN:
                   1.    SRI BYRATHI SURESHA
                         (SURESHA B.S.)
                         S/O.LATE B.M.SUBBANNA
                         AGED ABOUT 52 YEARS
                         R/AT NO.174, BYRATHI
                         BENGALURU NORTH
                         DR.SHIVARAMA KARANTH NAGAR
                         BENGALURU-560 077

                         MEMBER OF LEGISLATIVE ASSEMBLY (MLA),
                         HEBBALLA CONSTITUENCY
                                                                 ...PETITIONER
                   (BY SRI SHATHABISH SHIVANNA, ADVOCATE)
                   AND:
                   1.    STATE OF KARNATAKA
                         BY WILSON GARDEN POLICE STATION
                         REP. BY PUBLIC PROESECUTOR
                         THE HIGH COURT OF KARNATAKA
Digitally signed
                         BENGALURU-560 001
by
GAVRIBIDANUR
SUBRAMANYA         2.    SRI A.RAJU
GUPTA                    POLICE SUB INSPECTOR
SREENATH
Location: HIGH           WILSON GADEN POLICE STATION
COURT OF                 KARNATAKA-560 051
KARNATAKA
                                                              ...RESPONDENTS
                   (BY SRI VINAY MAHADEVAIAH, HCGP)
                        THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
                   THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
                   PROCEEDINGS IN CC.NO.25189/2024 REGISTERED PURSUANT
                   TO THE PRIVATE COMPLAINT DATED 22.06.2022 BEARING
                   PCR.NO.9858/2024 FOR THE OFFENCES PUNISHABLE UNDER
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                                            NC: 2025:KHC:10971
                                           WP No. 7403 of 2025




SECTIONS 188 AND 290 OF INDIAN PENAL CODE, 1860 READ
WITH SECTION 103 OF THE KARNATAKA POLICE ACT, 1961
INSOFAR AS THE PRESENT PETITIONER IS CONCERNED,
PENDING ON FILE OF THE XLII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SPECIAL COURT TO TRY CASES
AGAINST SITING AS WELL AS FORMER MPS. AND MLA,
TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA) AS
PER ANNEXURES-A AND B RESPECTIVELY.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

                           ORAL ORDER

The petitioner, who is accused No.18 is before this

Court seeking to quash the proceedings in

CC.No.25189/2024 registered pursuant to the Private

Complaint dated 22.06.2022 in PCR.No.9858/2024 for the

offences punishable under Sections 188 and 290 of the

Indian Penal Code, 1860 and Section 103 of the Karnataka

Police Act, 1961 on the file of XLII Additional Chief

Metropolitan Magistrate (Special Court for Trial of Cases

against sitting as well as former MPs./MLAs. triable by

Magistrate in the State of Karnataka), Bengaluru.

2. The petitioner contested the Karnataka Legislative

Assembly Election held in May, 2023. He was successful in

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the election and presently, he is a Minister in the

Government of Karnataka.

3. It is the vehement contention of Sri Shathabish

Shivanna, learned counsel for petitioner that the impugned

order taking cognizance is a classic example of

non-application of mind. He has referred to the word

'cognizance' having not been defined in Cr.PC. and he

contends that it is an application of judicial mind to an

alleged commission of offence. He further contends that

while taking cognizance of an offence, the Court will have

to apply its judicial mind and thereafter, take cognizance

and then issue process/notice to the accused. He has

relied upon several judgments of the Hon'ble Apex Court,

wherein he has relied upon the judgments of the Hon'ble

Apex Court in the case of Sunil Bharti Mittal v. CBI

reported in (2015)4 SCC 609 and the Coordinate Bench

of this Court in the case of Umesh Shetty v. State of

Karnataka in Crl.P.No.7228/2023 C/w.

WP.No.14239/2023, whereby this Court in similar

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circumstances dealing with similar quashment of

proceedings and non-application of mind while taking

cognizance of the offence, issuance of process to the

accused and allowed the petition by quashing the

proceedings of the learned Magistrate taking cognizance

and in another judgment of this Court in

Crl.P.No.12815/2024 (decided on 28.11.2024) and

WP.No.24699/2024 (decided on 12.09.2024), the

Coordinate Bench of this Court in similar circumstances

has allowed the petition and quashed the proceedings of

the learned Magistrate.

4. 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 W.P.No.24699/2024

stated supra, wherein this Court has held as follows:

"3. Learned counsel, Sri. Bipin Hegde, appearing for the petitioners would submit that the issue in the lis stands answered by the judgments rendered by the Co-ordinate Bench of this Court in Crl.P.No.7228/2023 c/w W.P.No.14239/2023 dated

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27.02.2024 and that of this Court in Crl.P.No.7376/2022 dated 16.08.2022.

4. The Co-ordinate Bench of this Court in the aforesaid judgment has quashed the proceedings on identical offences against the other accused, wherein it has held as follows:

"2. Learned Sr. Advocate Mr.Aruna Shyam appearing for the petitioners submits that the cognizance of the offence could not have been taken by the court below, the private complaint filed u/s 200 of the Code of Criminal Procedure, 1973, for the subject offence itself being incompetent. In support of this, he banks upon of a Coordinate Bench decision in W.P.No.13328/2018 (GM-RES) between SRI. RAJASHEKHARANANDA SWAMIJI AND ANOTHER vs. STATE OF KARNATAKA, disposed off on 18.6.2021. He further submits that the provisions of Section 195 of the Code of Criminal Procedure, 1973 having been held mandatory by the Apex Court in SALONI ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the quashment has to be granted by this court.

3. Learned Addl. SPP appearing for the respondent opposes the petitions contending that there can be delegation of power to

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lodge the complaint and therefore, in such an event, the author who promulgated the order in question need not go before the court to complain. Even otherwise, according to him, the arguable infirmity not going to root of the matter, no relief can be granted to the petitioners, as prayed for. So contending, he seeks dismissal of the petitions.

4. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is inclined to grant relief to the petitioners, broadly agreeing with the submission made on their behalf. Similar question had cropped up before the Coordinate Bench in Rajashekharananda Swamiji supra. A paragraphs 8 & 10 of the judgement, it is observed as under:

"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.

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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:

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

(Emphasis supplied)"

The above observations come to the aid of petitioners.

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5. The vehement submission of learned Addl. SPP that there can be delegation of "power to complain" in terms of promulgated order in question, is bit difficult to countenance in the absence of such delegation being demonstrated from the text of the said order itself. It has been a settled position of law vide In Re Delhi Laws Act, 1951 SCC OnLine SC 45 that a delegate cannot further delegate: delegatus non potesta potestas delegare. Contra having not been shown, the contention of the kind cannot be countenanced.

In view of the above, these petitions being meritorious are allowed to meet the ends of justice and to prevent the abuse of process of the court; the impugned proceedings in C.C.No.24636/2022 pending on the file of learned VI Addl. Chief Metropolitan Magistrate, Bengaluru, are quashed."

5. Sri Vinay Mahadevaiah, learned High Court

Government Pleader for respondents opposes the

contentions so urged by learned counsel for petitioner and

seeks dismissal of the petition.

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6. Having heard learned counsel for petitioner and

learned High Court Government Pleader for respondents

and on perusal of the petition and the documents annexed

thereto, this Court is in agreement with the contention

put-forth by learned counsel for petitioner. Since the issue

has already been dealt with by the Coordinate Bench of

this Court as stated supra and relief has been granted in

favour of the petitioner for quashment of similar case in

nature. Hence, the petitioner herein would also be entitled

to the similar relief on parity.

7. In view of the above discussion and in the light of

the order rendered by the Coordinate Bench of this Court

stated supra, I pass the following:

ORDER

(i) The Writ Petition is allowed;

(ii) The proceedings in CC.No.25189/2024

registered pursuant to the Private Complaint

dated 22.06.2022 in PCR.No.9858/2024 for the

offences punishable under Sections 188 and

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290 of the Indian Penal Code, 1860 and Section

103 of the Karnataka Police Act, 1961 on the

file of XLII Additional Chief Metropolitan

Magistrate (Special Court for Trial of Cases

against sitting as well as former MPs./MLAs.

triable by Magistrate in the State of Karnataka),

Bengaluru, is hereby quashed.

Sd/-

(PRADEEP SINGH YERUR) JUDGE

LB