Karnataka High Court
B A Mahadheva vs State By Bmtf Police on 10 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION NO.1424 OF 2014
BETWEEN:
1. B A MAHADHEVA,
S/O B.ANNEGOWDA,
AGED ABOUT 49 YEARS,
CURRENTY WORKING AT
ASST.EXECUTIVE ENGINEER,
HEBBAL SUB-DIVISION,
BBMP,
BANGALORE-560024.
2. RAMESHA,
S/O LATE NANJUNDE GOWDA,
AGED ABOUT 59 YEARS,
ASST.ENGINEER, WARD NO.18,
HEBBAL SUB-DIVISION,
BBMP, BANGALORE-560024. ...PETITIONERS
(BY SRI SRINIVAS V, ADVOCATE)
AND:
STATE BY BMTF POLICE
BBMP BUILDING, NR SQUARE,
BANGALORE-02. ...RESPONDENT
(BY SRI HONNAPPA, HCGP)
****
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE ENTIRE
PROCEEDINGS AS AGAINST THESE PETITIONERS IN
CR.NO.27/2013 ON THE FILE OF C.M.M., BANGALORE
FILED BY THE RESPONDENT POLICE.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by petitioners-accused Nos.1 and 2 under Section 482 Cr.P.C. praying to quash the entire proceedings in Crime No.27/2013 registered by the Bengaluru Metropolitan Task Force for the offence punishable under Sections 217, 214, 109 of IPC and Section 321(b) of Karnataka Municipal Corporation Act (hereinafter referred to as 'Act' for the sake of convenience), pending on the file of Chief Metropolitan Magistrate, Bengaluru.
2. The facts leading to this petition are that the respondent-Bengaluru Metropolitan Task Force was established with an intention to protect the property of the Government and the Bengaluru City Corporation 3 with other auxiliary functions of the Corporation. One Sri M.G.Gangaya filed the complaint to the respondent- Police that in the BBMP Ward No.18, RMV 2nd Stage, MLA layout, Benglauru, the owner of site No.112 is putting up construction in violation of sanctioned plan without leaving the setback area. The respondent-Police alleging that petitioners have passed the provisional order under Section 321(1) and (2) of the Act, but they have not taken any action for demolition of the building under Section 462 of the Act. With these allegations, the case was registered in Crime No.27/2013 for the offence punishable under Sections 217, 214, 109 of IPC and Section 321(b) of KMV Act. The petitioners, being aggrieved by the criminal case registered against them, have preferred this petition.
3. Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent-State.
4
4. Learned counsel for the petitioners has submitted that the FIR was registered without looking into the facts of the case and without making any enquiry. The FIR filed is defective in nature as the stage of construction is not at all reflected in the complaint and the plan sanctioning authority has not been arrayed as accused. The offence alleged is non- cognizable offence but the FIR was directly registered without obtaining the permission from the jurisdictional Magistrate, therefore, the FIR cannot be sustained in law. The nature of allegation would clearly establish that the act or omissions done by the petitioners are clearly official in nature. Therefore, the permission under the relevant provision under the Criminal Procedure Code is essential. Hence, the FIR is liable to be quashed.
5. During the course of arguments, learned counsel for the petitioners has relied on the decision 5 dated 10.10.2013 passed in Crl.P.5340/2012 and other connected matters and submitted that the facts and circumstances involved in those cases are all similar to the facts of the present case. Even in the present case, the offence alleged is non-cognizable offence.
6. The nature and the extent of the punishment for the offence punishable under Section 324(b) of KMC Act is not prescribed. There is no indication as to whether it is a cognizable offence or non-cognizable offence.
7. Section 155 Cr.P.C. deals with the procedure to be followed in respect of registration of the case and investigation to be conducted by the Officer in respect of non cognizable cases.
According to sub-section (1) of Section 155 of Cr.P.C., when the information is given to the officer in charge of a police station regarding commission of non- cognizable offence, the Officer in charge of the Police 6 Station is required to enter or cause to be entered the gist of the information received in the book kept for such purpose and refer the informant to the Magistrate. Sub-Section (2) of Section 155 Cr.P.C. states that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Sub-Section (3) of Section 155 Cr.P.C. states that any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. Sub-Section (4) of Section 155 Cr.P.C. states that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.
7
8. In the present case, no such procedure has been followed. Under these circumstances, there are valid grounds for quashing the FIR. Accordingly, I pass the following:
ORDER i. The criminal petition is allowed.
ii. The FIR registered in Crime No.27/2013 by the Bengaluru Metropolitan Task Force for the offence punishable under Sections 217, 214, 109 of IPC and Section 321(b) of Karnataka Municipal Corporation Act pending on the file of Chief Metropolitan Magistrate, Bengaluru, is hereby quashed.
Sd/-
JUDGE BSR