Karnataka High Court
Sidramappa And Ors vs The State Of Karnataka on 24 April, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
CRIMINAL PETITION NO.200409/2018
BETWEEN:
1. Sidramappa S/o Rachappa
Age: 35 years, Occ: Driver
R/o Medinapur, Tq. Lingasugur
Dist. Raichur - 587106.
2. Babu S/o Ajappa
Age: 30 years, Occ: Driver,
R/o Lingasugur, Tq. Lingasugur,
Dist. Raichur
3. Hanumesha S/o Paramanna
Age: 27 years, Occ: Driver,
R/o Kannapur Hutti, Tq. Lingasugur
Dist. Raichur - 587106.
4. Hulagappa S/o Basappa
Age: 53 years, Occ: Social worker
R/o Gandhinagar Colony, Maski
Tq. Lingasugur, Dist. Raichur - 587106.
... Petitioners
(By Sri Shivanand V.Pattanshetti, Advocate)
AND:
The State of Karnataka
R/by Addl. SPP High Court of Karnataka
2
Kalaburagi Bench - 585108
(Through Lingasugur Police Station
Dist. Raichur)
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Petition is filed under Section 482
Cr.P.C. praying to set aside the order of taking cognizance
and issue of process dated 31.07.2014 and consequently
quash the further proceedings pending in C.C.No.61/2015
(Lingasugur Police Station Crime No.127/2013) for the
offences punishable under section 171 H & 188 IPC, on the
file of Senior Civil Judge at Lingasugur Dist. Raichur
This petition is coming on for Admission this day, the
Court made the following:
ORDER
The petitioners have filed the present criminal petition to quash the entire proceedings in C.C.No.61/2015 arising out of Crime No.127/2013 pending on the file of the Senior Civil Judge, Lingasugur Raichur district.
2. It is the case of the prosecution that one Chandrashekhar, an Government Officer Gazetted, 3 Flying Squad Chief lodged a written complaint before the Lingasugur police station alleging that he has received information on 17.04.2013 at 13.30 a.m. that the petitioners without permission from the election commission have stick the KGP flag on their respective vehicles and canvassed in favour of the KGP party. So they have violated the code of conduct of election and committed the offence under Section 171-H and 188 of IPC. Therefore, the jurisdictional police registered Crime No.127/2013 for the offences punishable as stated supra. Hence, the present is filed petition to quash the entire proceedings in Crime No.127/2013 and C.C.No.61/2015.
3. I have heard the learned counsel for the parties to the lis.
4. Sri Shivanand V. pattanshetti, learned counsel for the petitioners vehemently contended that the very initiation of proceedings under the provisions of 4 Section 171-H of IPC without prior permission from the learned Magistrate to investigate is not maintainable. He further contended that to initiate any criminal proceeding against the accused under Section 188 of IPC, the complainant has to file a private complaint as contemplated under Section 195 of Cr.P.C. He further contended that the petitioner is innocent and has not committed any crime muchless as alleged in the complaint and has been falsely implicated in the crime by the police. He further contended that the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. It is further contended that Section 171-H is non-cognizable offence and the police cannot investigate the matter without prior permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. He further contended that though the petitioner has filed discharge under Section 239 of Cr.P.C., the learned Magistrate has held that this Court has power under Section 482 of 5 Cr.P.C. and Trial Court already took cognizance and cannot go behind the stage of taking cognizance. Therefore, sought to quash the proceedings by allowing the present petition.
5. Sri Mallikarjun Sahukar, learned High Court Government Pleader for the respondent sought to justify the impugned order passed by the Trial Court and has not disputed the fact that before initiation of proceedings under Section 171-H of IPC, the police have to take prior permission of the Magistrate. He also submits that the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C.
6. Having heard the learned counsel for the parties, the material on record clearly depicts that there was no complaint in writing by the complainant, who was an official of Gazeetted Flying Squad Chief against the petitioner before the jurisdictional Magistrate 6 alleging the offence under Section 188 of IPC. On the other hand, he has filed a complaint to the jurisdictional police for investigation. The registration of a case by the police under Section 188 of IPC itself is illegal. On the date of registration of case itself, the bar under Section 195 of Cr.P.C. was operating and the police gets no jurisdiction even to register a case under Section 188 of IPC. Once an illegality perpetrates into the investigation, such investigation is hit by the statutory principles, then it cannot be construed as a legal proceeding or a legal investigation by the police. Therefore, as rightly contended by the learned counsel for the petitioners, the Magistrate could not have taken cognizance for the offence under Section 188 of IPC without there being a private complaint in writing by the public servant.
7. A plain reading of the provisions of Section 195 of Cr.P.c. makes it clear that there is a statutory 7 bar to the Court for taking cognizance unless the complaint in writing made by the public servant concerned or some other public servant to whom he is administratively subordinate. In view of the above, the said provision takes away the general power of the Magistrate under Section 190 of Cr.P.C.
8. Insofar as initiation of proceedings under Section 171-H of IPC is concerned, which reads as under:
"Illegal payments in connection with an election. - Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publications, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to file hundred rupees.
8
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
9. A plain reading of the said Section makes it clear that the punishment imposed is fine that may extend to Rs.500/-. Therefore, the said provision is categorized as non-cognizable offence under the classification of the offences in Schedule-I to the Cr.P.C. When the offence is declared as non-cognizable in nature, Section 155(2) of Cr.P.C. bars the police to investigate such matter without valid permission from the jurisdictional Magistrate. The provisions of Section 155(2) of Cr.P.C. clearly depicts that:
"Information as to non-cognizable cases and investigation of such cases and sub-9
section (2) specify 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."
10. The Apex Court in the case of M.S.Ahlawat vs. State of Haryana and Another reported in (2000) 1 SCC 278 held that the provisions of Section 195 of Cr.P.C. are mandatory and no Court has jurisdiction to take cognizance of the offences mentioned therein, unless there is a complaint in writing as required under that Section.
11. The Apex Court in the case of Sachida Nand Singh and Another vs. State of Bihar and Another reported in 1998(2) SCC 493, while considering the provisions of Section 190 of Cr.P.C. held in paragraph No.7 as under:
7. Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police port or information or 10 upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the Court with a complaint is to that extent curtailed. It is a well-recognized canon of interpretation that provision curbing the general jurisdiction of the Court must normally receive strict interpretation unless the statute or the context requires otherwise (Abdul Waheed Khan vs. Bhawani, AIR 1966 SC 1718)."
12. The Hon'ble Supreme Court in the case of Daulat Ram vs. State of Punjab reported in AIR 1962 SC 1206 wherein it was held that where the cognizance of the offence had been taken on police report by the Magistrate and the appellant therein, had been tried and convicted, though the public servant concerned, the Tahsildar, had not filed any complaint. Considering the factual background and while allowing and setting aside the judgment of conviction and order of sentence passed on the appellant it has been held as under: 11
"The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab-
initio and the conviction cannot be
maintained."
13. The provisions of Section 2(d) of Cr.P.C. defines the 'complaint', which reads as under:
"2(d). "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
14. Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated under Section 195 of Cr.P.C. being mandatory and there being non-compliance, the Magistrate has committed illegality in taking cognizance of the offences i.e., 12 without the complaint being made to him in writing by the public servant concerned.
15. Admittedly, in the present case, the public servant has not lodged complaint in writing and no permission was obtained from the jurisdictional Magistrate by the police as contemplated under Section 155(2) of Cr.P.C. and the public servant has not filed any private complaint as contemplated under Section 200 of Cr.P.C. to initiate proceeding under Sections 171-H and 188 of IPC. Therefore, the initiation of proceeding made by the jurisdictional police and subsequently cognizance taken by the Magistrate is contrary to the provisions stated supra. The petitioners have made out exceptional circumstances to quash the proceedings as prayed for.
16. In view of the aforesaid reasons, the criminal petition is allowed. The entire proceedings in C.C.No.61/2015 arising out of Crime No.127/2013 13 pending the file of the Senior Civil Judge, Lingasugur Raichur district for the offences punishable under Sections 171-H and 188 of IPC are hereby quashed.
Ordered accordingly.
Sd/-
JUDGE Srt Ct: VK