[Cites 24, Cited by 0]
Karnataka High Court
Sri Bheemashankar vs The State on 18 February, 2026
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CRL.P No. 200183 of 2026
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL PETITION NO. 200183 OF 2026
(482(Cr.PC)/528(BNSS))
BETWEEN:
1. SRI. BHEEMASHANKAR
S/O PRAKASH TALAWAR
AGE 24 YEARS
OCC: AUTO DRIVER
2. SRI. SHIVAKUMAR
S/O DEVINDRAPPA TALWAR
AGE: 26 YEARS
OCC: AUTO DRIVER
3. SRI. SUNIL
S/O MOUNESH BADIGER
AGE: 26 YEARS
OCC: BUSINESS
Digitally signed
by SHIVALEELA
DATTATRAYA 4. SRI. SIDDU
UDAGI S/O MALLIKARJUN DODDAMANI
Location: HIGH AGE: 20 YEARS
COURT OF
KARNATAKA OCC: STUDENT
ALL ARE R/O TALWAR ONI JEWARGI
TQ: JEWARGI, DIST:KALABURAGI-585310
...PETITIONERS
(BY SRI. PRADEEP KUMAR., ADVOCATE)
AND:
1. THE STATE THROUGH
JEWARGI POLICE STATION,
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CRL.P No. 200183 of 2026
HC-KAR
R/BY ADDL. SPP
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
AT KALABURAGI-585102
2. SRI. MALLANNA H. A.S.I.,
JEWARGI POLICE STATION,
JEWARGI, TQ: JEWARGI,
DIST: KALABURAGI-585310
...RESPONDENTS
(BY SRI.GOPAL KRISHNA B. YADAV, HCGP)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. (OLD), U/SEC.
528 OF BNSS (NEW), PRAYING TO QUASH THE ORDER OF
TAKING COGNIZANCE AND ORDER OF REGISTRATION OF
CRIMINAL CASE AND THEREBY ISSUANCE OF SUMMONS TO
THE PETITIONERS DATED 14.08.2025 BY THE LEARNED
SENIOR CIVIL JUDGE AND JMFC AT JEWARGI IN CRIME
NO.0242/2024 REGISTERED BY THE JEWARGI POLICE
STATION, FOR THE ALLEGED OFFENCES PUNISHABLE UNDER
SECTIONS 299 R/W 190 BNS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.P No. 200183 of 2026
HC-KAR
ORAL ORDER
This petition is filed under Section 528 of Bharatiya
Nagarik Suraksha Sanhita, 2023, to quash the proceedings
against the petitioners/accused Nos.2 to 5 in
C.C.No.360/2025, arising out of Crime No.242/2024,
registered by Jewargi Police, for the offences punishable
under Section 299 r/w Section 190 of Bharatiya Nyaya
Sanhita, 2023 (for short, "BNS, 2023"), pending on the file
of Senior Civil Judge & JMFC, Jewargi, Kalaburagi (for
brevity, "learned Magistrate").
2. The abridged facts of the case are, respondent
No.2 i.e., ASI of Jewargi Police Station, lodged a complaint
against the petitioners alleging that on 20.09.2024 on the
eve of Lord Ganesha idol immersion procession, he was
deputed as a security along with the other Police
constables. At that time, the local boys who were involved
in the immersion procession raised the slogan as "Jai Sri
Rama, Jai Ganesha". Further, at 09:30 p.m. near
Mahalakshmi Temple at Jewargi, when the immersion
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procession is heading towards Tippu Sulthan Chowk, the
boys involved in the procession i.e., accused No.1 and
petitioner Nos.1 to 4/accused Nos.2 to 5, raised the slogan
of "Kshatrapati Shivaji on Horse and Tippu Sultan on my
*****". When the elders advised them not to make such
slogans, they continued the procession by raising the
slogans as "Jai Sri Rama, Jai Ganesha". The said slogans
were recorded in the mobile phone and uploaded in the
social media. Subsequently, the same was viewed by the
ASI/respondent No.2 and accordingly, he lodged a
complaint before respondent No.1-Police against accused
No.1 and the petitioners, which registered in Crime
No.242/2024 for the aforementioned offence.
3. Subsequently, respondent No.1-Police
investigated the case and laid charge sheet against
accused No.1 and the petitioners for the aforementioned
offence, by arraying the petitioners as accused Nos.2 to 5.
Accordingly, learned Magistrate took cognizance of the
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offence. Aggrieved by the same, the petitioners/accused
Nos.2 to 5 preferred the present petition.
4. Heard learned counsel for the petitioners and
learned High Court Government Pleader for respondent
No.1-State.
5. Apart from urging several contentions, learned
counsel for the petitioners primarily contented that the
order of taking cognizance is illegal, arbitrary and contrary
to the provisions under Section 217 of BNSS. According to
him, in the absence of prior sanction by the appropriate
Government, learned Magistrate could not have taken
cognizance of the alleged offence. He also submitted that
the said aspect is covered by the order of the Co-ordinate
Bench of this Court in the case of Sirajuddin vs. The
State of Karnataka and Another in
Crl.P.No.3258/2024 dated 30.01.2026. Accordingly,
prays to allow the petition.
6. Per contra, learned High Court Government
Pleader opposed the prayer.
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7. I have given my anxious consideration both on
the submission made by the learned counsel for the
respective parties and documents available on record.
8. Section 217 of BNSS, reads as under:
" 217. Prosecution for offences against State
and for criminal conspiracy to commit such
offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VII or
under section 196, section 299 or sub-section (1)
of section 353 of the Bharatiya Nyaya Sanhita,
2023; or
(b) a criminal conspiracy to commit such offence;
or
(c) any such abetment, as is described in section
47 of the Bharatiya Nyaya Sanhita, 2023, except
with the previous sanction of the Central
Government or of the State Government.
(2) No Court shall take cognizance of-
(a) any offence punishable under section 197 or
sub-section (2) or sub-section (3) of section 353
of the Bharatiya Nyaya Sanhita, 2023; or
(b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central
Government or of the State Government or of the
District Magistrate.
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(3) No Court shall take cognizance of the offence
of any criminal conspiracy punishable under sub-
section (2) of section 61 of the Bharatiya Nyaya
Sanhita, 2023, other than a criminal conspiracy to
commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for
a term of two years or upwards, unless the State
Government or the District Magistrate has
consented in writing to the initiation of the
proceedings:Provided that where the criminal
conspiracy is one to which the provisions of
section 215 apply, no such consent shall be
necessary.
(4) The Central Government or the State
Government may, before according sanction
under sub-section (1) or sub-section (2) and the
District Magistrate may, before according sanction
under sub-section (2) and the State Government
or the District Magistrate may, before giving
consent under sub-section (3), order a
preliminary investigation by a police officer not
being below the rank of Inspector, in which case
such police officer shall have the powers referred
to in sub-section (3) of section 174.
9. On bare reading of the above provision, it is
clear that before taking cognizance of the above offence,
the learned Magistrate has to obtain sanction under
Section 217 of BNSS by the State Government, failure of
obtaining such sanction, strikes the root of the cognizance
order. This position of law is very much settled by the
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Co-ordinate Bench of this Court in the case of Sirajuddin
(supra) held at paragraph Nos.7.1 to 8 as under:
"7.1. The law, in this regard, is too well settled.
The Apex Court in PARVEZ PARWAZ v. STATE OF
UTTAR PRADESH, has held as follows:
".... .... ....
"10. The words "No Court shall take
cognizance" employed in Section 196 of the
Code of Criminal Procedure (for short 'CrPC')
and the consequential bar created under the
said provision would undoubtedly show that
the bar is against 'taking of cognizance by the
Court'. In other words, it creates no bar
against registration of a crime or investigation
by the police agency or submission of a report
by the police on completion of investigation as
contemplated under Section 173, CrPC
[Refer:-- State of Karnataka v. Pastor P. Raju,
(2006) 6 SCC 728)]."
7.2. A little earlier to the judgment of the Apex
Court, a coordinate Bench of this Court in
VISHWANATH v. STATE OF KARNATAKA has held
as follows:
".... .... ....
15. The questions that would arise for
consideration in this petition are as under:
i. Whether prior sanction is required
under Section 196 of Cr.P.C. for
carrying out an investigation of an
offence against the State and/or for
criminal conspiracy to commit such
offence?
ii. Whether prior sanction is required
before filing of charge sheet before
the Magistrate as regards an offence
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against the State and/or for criminal
conspiracy to commit such offence?
iii. Whether once charge sheet has been
filed, can the sanction granted be
withdrawn by the State Government?
iv. Whether once the charge sheet has
been filed after sanction, the State
Government can direct the public
prosecutor to withdraw the
complaint?
v. If there is a valid sanction issued can
the petitioners try to take advantage
of the so called direction by the State
Government to the Public Prosecutor
to withdraw the complaint vide
government order dated 04.11.2015
to seek for discharge from the
proceedings?
vi. Whether a complaint for defamation
can only be filed by a person
defamed or can it also be filed by an
institution or a representative of the
institution so alleged to be defamed?
vii. Whether Section 153-A of IPC can be
invoked only if it resulted in
promoting enmity between two
separate religions or could it be
invoked if it promotes enmity within
the same religious group or sect or in
general disturb public tranquility?
viii. Whether dissemination of material
which is "lascivious or appeals to the
prurient interest" by way of Compact
Disks would attract Section 67 of
Information Technology Act?
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ix. What Order
Point No. (i) : Whether prior sanction is
required under Section 196 of Cr.P.C. for
carrying out an investigation of an offence
against the State and/or for criminal
conspiracy to commit such offence?
16. Sri. A.P. Hegde, Learned Counsel
appearing for the petitioner has contended that even
before the investigation is carried out, sanction
under Section 196 of Cr.P.C. is required. He
contends that the State has to give sanction for the
investigation and no investigation can be carried out
without sanction. He contends that, in the present
case, since the investigation is carried out without a
sanction, the investigation can not be looked into
and no further proceedings be initiated thereon.
17. Per contra, Smt.Vidyavathi, Learned AAG,
and Sri. S.M. Chandrashekar, Learned Senior
Counsel have contended that at the stage of the
investigation, there is no requirement for any
sanction and therefore, the investigation can not be
faulted with on account of not obtaining of sanction.
18. Section 196 of the Cr. P.C. reads as under:
Section 196: Prosecution for offences
against the State and for criminal
conspiracy to commit such offence.
(1) No Court shall take cognizance of--
(a) any offence punishable under Chapter
VI or under section 153A, [ Subs, by Act 63 of
1980, s. 3, for "section 153B, section 295A or
section 505" (w.e.f. 23-9-1980).] [section
295A or sub-section (1) of section 505] of the
Penal Code (45 of 1860), or
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(b) a criminal conspiracy to commit such
offence, or
(c) any such abetment, as is described in
section 108A of the Penal Code (45 of 1860),
except with the previous sanction of the
Central Government or of the State
Government.
[ Ins. by s. 3, ibid. (w.e.f. 23-9-1980).]
[(1 A) No Court shall take cognizance of
(a) any offence punishable under section
153B or sub-section (2) or sub-section (3) of
section 505 of the Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such
offence, except with the previous sanction of
the Central Government or of the State
Government or of the District Magistrate.]
(2) No Court shall take cognizance of the
offence of any criminal conspiracy punishable
under section 120B of the Penal Code (45 of
1860), other than a criminal conspiracy to
commit [Subs, by Act 45 of 1978, s. 16, for "a
cognizable offence" (w.e.f. 18-12-1978).] [an
offence] punishable with death, imprisonment
for life or rigorous imprisonment for a term of
two years or upwards, unless the State
Government or the District Magistrate has
consented in writing to the initiation of the
proceedings:
Provided that where the criminal
conspiracy is one to which the provisions of
section 195 apply, no such consent shall be
necessary.
(3) The Central Government or the State
Government may, before according sanction
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[Subs, by Act 63 of 1980, s. 3, for "under
subsection" (1) (w.e.f. 23-9-1980).] [under
subsection (1) or sub-section (1 A)] and the
District Magistrate may, before according
sanction under sub-section (1A) and the State
Government or the District Magistrate may,
before giving consent under sub-section (2),
order a preliminary investigation by a police
officer not being below the rank of Inspector, in
which case such police officer shall have the
powers referred to in sub-section (3) of section
155.
19. Section 196, therefore imposes an
embargo which is mandatory in nature, the
conditions for taking cognizance of an offence have
to be necessarily followed before taking such
cognizance. Counsel for the petitioner has relied
upon the decision in VALISIDDAPPA's case, stated
supra to contend that even for preliminary
investigation sanction is required. That was a case
where the order indicated both a direction for
preliminary investigation as also sanction for
prosecution. Hence, this Court has held that there
cannot be simultaneous direction according sanction
for prosecution as also for investigation since the
question of sanction would arise only on completion
of the investigation by the Investigating Officer and
on availability of relevant material collected during
the investigation. This decision relied upon by Mr
Hegde, in fact, is contrary to his submissions.
20. This Court in VALISIDDAPPA's case,
has categorically held that the question of
sanction would arise only after all the materials
are placed before the Sanctioning Authority. As
a corollary, it is clear that at the investigation
stage, there is no sanction which is required
and the question of according of sanction would
arise only after the investigation is completed.
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21. This Court in the case of State of
Karnataka v. K. Rajashekar, supra has held that
the prior sanction of the Government is
required before cognizance is taken of any such
offence. Section 196 would apply only to a
Court and not to the police or any investigating
agency. Thus, it is clear from the above
discussion that no sanction is required for the
purpose of carrying out investigation. This is
also logically correct in the sense that the
sanction contemplated under Section 196
Cr.P.C. is for "prosecution for offences against
the State and for criminal conspiracy to commit
such offence".
22. Prosecution for an offence does not
commence at the stage of investigation. At the
investigation stage, the Investigating Officer is
only to ascertain the facts of the matter and to
prepare investigation report. Thereafter, the
Investigating Officer has an option either to file
a 'B' summary report to state that no offence is
committed or to file a charge sheet. If the
Investigating Officer is to file a 'B' summary,
there would be no prosecution. It is only if a
charge sheet is to be filed, then, after filing of
the charge sheet, the prosecution would
commence. Therefore, at the stage of
investigation, it would not be clear as to
whether the complaint received would require
prosecution or not. It is only if the matter were
to proceed towards prosecution, Section 196 of
Cr.P.C. would get attracted which contemplates
prior sanction by the State for such
prosecution.
23. Infact, Section 196(1A) speaks of 'no
Court could take cognizance of certain offences
except with the previous sanction of the
Central Government or of the State Government
or of the District Magistrate as the case may.
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That is to say that prior to cognizance being
taken, there is no sanction which is required,
more so since Section 196 (1 A) applies only to
Courts and Courts taking cognizance. An
Investigating Officer conducting an
investigation on a complaint being received will
not come within the purview of Section 196
(1A). Accordingly, I answer Point No. 1 by
holding that no prior sanction is required under
Section 196 of Cr.P.C. for carrying out the
investigation of an offence by the Investigating
Officer, without the intervention of the Court.
Point No. (ii): Whether prior sanction is
required before filing of charge sheet before
the Magistrate as regards an offence against
the State and/or for criminal conspiracy to
commit such offence?
24. The word 'cognizance' is derived from
Middle English word 'conisance', which in turn is
derived from Old French 'conoisance' which in turn is
based on Latin word cognoscere which essentially
means 'get to know'. The common understanding of
the word is "taking notice", legally it can be said to
be "takingjudicial notice by a competent jurisdictional
Court of law".
25. The Hon'ble Apex Court in R.R. Chari v.
State of U.P. [AIR 1951 SC 207.], observed that
"taking cognizance does not involve any formal
action or indeed action of any kind but occurs as
soon as a Magistrate as such applies his mind to the
suspected commission of offence".
26. Though the word cognizance assumes a
very important position in the discharge of functions
of the Court the same is not statutorily defined.
27. As discussed above no sanction is required
prior to or during the course of the investigation, in
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terms of Section 196(1A) and (2) prior sanction is
required at the time of taking cognizance, i.e., at the
time when the Court takes notice of the alleged
offence committed. This gives rise to the interesting
question as to whether sanction is required for
purposes of filing a charge sheet of which the Court
takes cognizance of subsequently. Cognizance of an
offence can only happen after the filing of a charge
sheet, needless to say without the filing of a charge
sheet; there can be no cognizance taken by the
Court. Such a cognizance could be taken immediately
after the charge sheet is filed or on a subsequent
date, when the charge sheet filed in the office of the
Court is placed before the Court. Thus, this would
mean that sanction has to be obtained prior to the
cognizance being taken.
28. Section 196 however, speaks of
prosecution for offences against the State and for
criminal conspiracy to commit such offence. Neither
Cr.P.C. nor the IPC defines the word "prosecution" so
is "commencement of prosecution" not defined. I'm
of the considered view that a prosecution
commences with the filing of the charge sheet in so
far as the State is concerned. It is therefore required
that before a charge sheet is filed and prosecution
commences, prior sanction of the concerned
authority being State Government, Central
Government or the District Magistrate be obtained.
Trial Court can only take cognizance of an offence if
the charge sheet is accompanied by the sanction.
Thus, without the sanction order being available
before the Court, no cognizance could be taken.
29. However, Section 196 speaks of
sanction for prosecution and imposes an
embargo on the Court taking cognizance. Prior
sanction is required for the purpose of
prosecution, the sanction of the prosecution
being in the discretion of the concerned
authority, even if the investigation report
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makes out an offence, the concerned authority
may decide not to prosecute the matter. Thus,
the decision in regard to prosecuting or not is
at the sole discretion of the concerned
authority. Since the offences are against the
State, Investigating Officer has to submit the
investigation report to the concerned authority
to enable the concerned authority to take a
decision on whether to prosecute the matter or
not. While doing so, the concerned authority
would decide whether to sanction such
prosecution or not.
30. If such a sanction is granted, only then, a
formal charge sheet would have to be prepared and
filed before the jurisdictional Magistrate. The Hon'ble
Apex Court has held that prior sanction of the
Government is required before taking cognizance of
an offence. The cognizance being taken subsequent
to the charge sheet being filed, the charge sheet
being the basis for such cognizance, the charge
sheet has to be accompanied by such sanction. Thus,
I answer Point No. (ii) by holding that at the time of
filing of the charge sheet, it is required that the
sanction order be filed with the same."
7.3. The High Court of Bombay in KHYYUM v.
THE STATE OF MAHARASHTRA has held as
follows:
".... .... ....
14. We would also like to deal with the
arguments of the learned Advocate for the
applicant in respect of Section 196 of Cr.P.C.
The argument deserves to be rejected
outrightly for the simple reason that sanction
required under Section 196 of Cr.P.C is a
condition precedent to the Court for
taking cognizance. It is the Court who
takes cognizance of an offence after a
report under Section 173 of Cr.P.C is filed
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by the Investigating Officer. It does not
fetter police powers to register an F.I.R
and investigate. Therefore, the arguments
of the learned Advocate for the applicant
for applicability of Section 196 of Cr.P.C is
misconceived and untenable in law.
Though we must clarify that this argument
about absence of sanction does not rendered
the F.I.R epso facto illegal. In the present case,
this question is merely academic as in our
considered view the F.I.R itself fails on its own
merits.
Both, the coordinate Bench of this Court and
the High Court of Bombay have clearly held that
there can be no fetters put on the Police to
register a FIR and investigate. Sanction is a
condition precedent only when a Court takes
cognizance on the final report placed by the
investigating agency before the Court. Absence
of sanction cannot mean that registration of
crime is illegal. The provision is unequivocal.
8. The learned counsel for the petitioner has
placed reliance upon several judgments rendered by
the coordinate Benches bringing in issue of sanction
even at the stage of a crime. All those would become
inapplicable, as the provision itself does not indicate
that prior sanction is required at the stage of
registration of a crime. The Apex Court in PARVEZ
PARWAZ supra has clearly delineated the said issue
in a judgment rendered in the year 2022.
Therefore, it is no law that for registration of a
crime sanction is required. In the light of the
statute and the judicial landscape as
considered by the Apex Court, coordinate
Bench of this Court and the Bombay High Court,
I deem it appropriate to hold that sanction
would be required for an offence under Section
295A of the IPC, only at the stage of
cognizance and not for registration of a crime
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or conduct of investigation. Investigation
precedes prosecution. At the investigating
stage, it is not known whether the material
collected would ultimately warrant filing of a
charge sheet or closure of proceedings. To
insist upon sanction even before investigation,
would e to place a cart before the horse and
defeat the very object of investigation. I,
therefore, hold that prior sanction under Section 196
Cr.P.C. is not required for registration of FIR or for
conduct of investigation and becomes mandatory
only when the Court takes cognizance upon
presentation of the final report. In the case at hand,
the matter is still at the stage of investigation. The
stage of taking of cognizance is yet to arrive. The
issue is answered accordingly."
10. Applying the above provisions of law and the
findings of the Co-ordinate Bench of this Court in the
above judgment to the facts and circumstances of this
case, in my considered view, the learned Magistrate has
mechanically taken cognizance of offence and the same is
bad in law and the proceedings cannot be sustained.
Accordingly, I proceed to pass the following:
ORDER
(i) The petition is allowed.
(ii) The proceedings against the
petitioners/accused Nos.2 to 5 in
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C.C.No.360/2025, arising out of Crime
No.242/2024, registered by Jewargi Police,
for the offences punishable under Section
299 r/w Section 190 of BNS, 2023, pending
on the file of Senior Civil Judge & JMFC,
Jewargi, Kalaburagi, is hereby quashed.
Sd/-
(RAJESH RAI K)
JUDGE
SDU
LIST NO.: 1 SL NO.: 13
CT-BH
