Basha vs The State Of Karnataka on 22 January, 2021

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Karnataka High Court

Basha vs The State Of Karnataka on 22 January, 2021

Bench: H.P. Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.2335/2020

BETWEEN:

1.     BASHA
       S/O CHAND BASHA
       AGED ABOUT 26 YEARS
       OCC: AGRICULTURIST
       R/O SHANTINAGARA
       PAVAGADA TOWN
       TUMKUR DISTRICT-561 202

2.     ASHWATHAPPA
       S/O LATE NARASAPPA
       AGED ABOUT 62 YEARS
       OCC: AGRICULTURIST
       R/O OLD KUMBARA STREET
       PAVAGADA TOWN
       PAVAGADA TALUK
       TUMKUR DISTRICT-561 202.        ... PETITIONERS

            (BY SRI. R.B. DESHPANDE, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY PAVAGADA POLICE STATION
PAVAGADA CIRCLE
TUMKUR DISTRICT-561 202.
                                   2



(REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS
BENGALURU-560 003)                 ... RESPONDENT

                  (BY SRI. K.S. ABHIJITH, HCGP)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CRIMINAL PROCEEDINGS
IN C.C.NO.556/2019 PENDING ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND JMFC PAVAGADA (CRIME No.31/2019 OF PAVAGADA
POLICE STATION, PAVAGADA CIRCLE, TUMAKUR DISTRICT,
CHARGE SHEETED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT 1963).

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the criminal proceedings in C.C.No.556/2019 pending on the file of Principal Civil Judge and JMFC Pavagada (Crime No.31/2019 of Pavagada Police Station, Pavagada Circle, Tamakur District, for the offence punishable under Section 78(iii) of the Karnataka Police Act, 1963.

2. The factual matrix of the case is that on 22.01.2019, the NCR was registered in NCR No.73/2019 and thereafter the police requested the learned Magistrate to accord permission to conduct the investigation in non-cognizable offence and 3 accordingly the permission was accorded by referring as "Perused. Found grounds. Hence, permitted."

3. It is mentioned that they have received the credible information that illegal activities of matka gambling and card gambling were going on and the complainant, who was on gasth duty found the public exchanging the money for matka chits and one Ashwathappa, who is the second petitioner herein was collecting the amount. The petitioner No.1 was also found collecting the money for playing matka gambling and giving chits to those persons, who paid the money. Thereafter, the permission was taken and the case was registered for the offence punishable under Section 78(iii) of PC Act.

4. The main contention of the learned counsel for the petitioners is that the Magistrate has accorded permission invoking Section 155(2) of Cr.P.C. to investigate the matter without applying his mind and only made the endorsement that "Perused. Found grounds. Hence, permitted." The said order is passed without application of mind and no separate order is passed except the endorsement on the requisition given by the 4 Investigating Officer. Hence, it requires interference of this Court.

5. The learned High Court Government Pleader appearing for the State would submit that the Magistrate has applied his mind while according permission to investigate the matter and hence, the same cannot be quashed.

6. Having heard the submission of the learned counsel for the petitioners and the learned High Court Government Pleader for the State and so also on perusal of the averments made in the complaint and in the FIR, a credible information was received that the petitioners were playing matka and the case was registered on 21.02.2019 based on the complaint of PSI. When the very requisition was given to the Magistrate on the same day, the learned Magistrate has not passed any separate order. On perusal of the requisition dated 22.01.2019, an endorsement was made that he has perused and found grounds. The same discloses the non-application of mind of the learned Magistrate and when the non-cognizable offence is reported and the permission was sought, the learned Magistrate ought to have 5 applied his mind and passed separate order whether it is a fit case to investigate the matter, which has not been done except stating that he has perused and found grounds. Hence, the petitioners have made out a ground to exercise powers under Section 482 of Cr.P.C. in quashing the proceedings initiated against the petitioners.

7. In view of the discussion made above, I pass the following:-

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 21.02.2019 in C.C.No.556/2019 pending on the file of Principal Civil Judge and JMFC Pavagada (Crime No.31/2019 of Pavagada Police Station, Pavagada Circle, Tamakur District, for the offence punishable under Section 78(iii) of the Karnataka Police Act, 1963. is hereby quashed.

In view of the disposal of the main petition, I.A., if any does not survive for consideration and the same stands disposed of.

Sd/-

JUDGE PYR

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