Karnataka High Court
Manappa D Vajjal vs The State Of Karnataka on 22 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200971/2022
BETWEEN:
MANAPPA D VAJJAL
AGE. 58 YEARS, OCC. POLITICIAN,
R/O LINGASUGUR, TQ LINGASUGUR,
DIST RAICHUR 586101
...PETITIONER
(BY SRI. SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY ADDL SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH 585107
(THROUGH LINGASUGUR P.S
DIST RAICHUR 586101)
...RESPONDENT
(BY SRI. VEERANAGOUDA MALIPATIL, HCGP)
THIS CRL.P FILED U/S.482 OF CR.P.C. PRAYING TO QUASH
THE COMPLAINT, FIR AND FILING OF CHARGE SHEET IN
LINGASUGUR POLICE STATION CRIME NO.197/2018 FOR THE
OFFENCES PUNISHABLE U/SEC. 171H, 188 OF IPC AND SEC.109
OF KP ACT-1951 PENDING ON THE FILE OF PRL. CIVIL JUDGE
(JR.DN) AND JMFC, AT LINGASUGUR, DISTRICT-RAICHUR.
2
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) seeking to quash FIR and filing of charge sheet and proceedings in Crime No.197/2018 for the offences punishable under Sections 171H, 188 of Indian Penal Code and Section 109 of K.P.Act.
2. It is contended by the complainant that a complaint came to be lodged on 08.04.2018 stating that a flying squad of Gurugunta assembly constituency was directed him to keep monitoring on the political parties. On 07.04.2018 when he was working at Hatti at about 2:50 p.m. he received information that this petitioner without there being any permission bearing the symbol of his party and tried to canvas his election. Immediately he went to village and asked the villagers, they told that the said petitioner requests for the voters to cast their votes in their favour and went away. Therefore, there is a violation of election code of conduct. Hence, he lodged the complaint. 3
3. Heard Sri.Shivanand V. Pattanashetti, learned counsel for the petitioner and Sri.Veeranagouda Malipatil, learned High Court Government Pleader for the respondent- State.
4. Learned counsel for the petitioner argued that granting permission by the Magistrate is against settled principle of law. Further he argued that the allegation under Section 171H of IPC and 109 of KP Act, are non-congnizable offences and police cannot investigate the matter. Prima facie there is no material. Hence, he prayed to quash the proceedings.
5. Learned High Court Government Pleader argued that the learned Magistrate has taken properly cognizance and issued summons to the accused. He further supported the Charge Sheet. Hence, he prayed to reject the petition.
6. I have perused the Charge Sheet and the statements and the order of the Magistrate. At Annexure-D the petitioner has produced requisition given by the police for investigation. The learned Magistrate endorsed as under: 4
"Perused the requisition. Satisfied. There are sufficient materials. Investigating Officer is directed to investigate the matter."
7. This Court has issued guidelines regarding Magistrate granting permission for investigation in a case reported in ILR 2020 KAR 630 in the case of Vaggeppa Gurulinga Jangaligi vs. The State of Karnataka wherein at paragraphs-19, 20, 21 and 22 held as under:
"19. Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:-
" INVESTIGATION AND PROSECUTION *1. Report under Section 154.- (1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.
2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted."
20. Therefore, under Rule I, the Magistrate shall endorse on the report whether the same has been received by post or muddam.
5Under Rule 2, Magistrate has to specify in his order the rank and designation of the police officer or the police officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr.P.C. and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.
i) The Jurisdictional Magistrates shall stop hereafter making endorsement as 'permitted' on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr.P.C.
ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.
iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.
iv) The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a 6 ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.
v) In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than informant or the complainant.
21. Coming to the case on hand, the SHO of Kagwad police station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P.Act which is a non- cognizable offence. It is seen that the learned Jurisdictional Magistrate has made and endorsement on the requisition which reads as follows:-
"Perused materials. Permitted Sd/-"
22. Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the police to investigate the non-cognizable offence much less an order passed by the learned Magistrate."
8. This Court has held that simply stating perused the material is not sufficient compliance of the said requirements and it does not show the application of judicial mind before permitting the police to investigate non- 7 cognizable offence. The said endorsement does not satisfy of Section 155(2) of Cr.P.C.
9. Even I have perused the certified copy of the Charge Sheet. It appears without application of mind, the said summons was issued. There is nothing in the Charge Sheet column for which offence this case is registered. Whether it is made over or it is put up. There is nothing to show that there is reference to any police report filed. Therefore, such order of JMFC, Lingasugur is not confirming with the law and procedure.
10. It is the duty of the Court when any charge sheet is filed before the Court, the Magistrate directs the Sherestedar to verify, check and put up. Thereafter, on perusing the police report and material, if it discloses any cognizable offence then the Court has to take cognizance and then issue summons. There is no noting in this regard as to what the Magistrate has done. There is also no record to show that any permission was sought by the police for investigation.
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11. Apart from that there is also offence under Section 188 of IPC, taking cognizance by police report, is hit by Section 195 of Cr.P.C. In such cases the Court has to take cognizance only on the basis of the private complaint i.e. complaint filed by the complainant/Authorised Officer.
12. In this regard, there is a decision of this Court in the case of Thipparaju vs. State of Karnataka reported in 2018 (4) Kar.L.J. 695 wherein petition under Section 482 of Cr.P.C. in respect of quashing of offence under Section 171H, 188 of IPC are considered and initiation of proceeding by jurisdictional police taking cognizance by Magistrate is quashed, at paragraphs-6, 11, 16 and 17 held as under:
"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 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 9 or a legal investigation by the police. Therefore, as rightly contended by the learned counsel for the petitioner, 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.
11. 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.
16. This Court in identical circumstances in the case of Sri Manikanta vs. The State of Karnataka and Others in W.P.No.23611/2015 dated 16.06.2015, wherein also the police have registered a case in Crime No.167/2014 for the offences punishable under Sections 78 and 79 of the Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of case under Section 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C. held that the remaining provision under Sections 78 and 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, this Court has quashed the proceedings.
17. 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 10 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 petitioner has made out exceptional circumstances to quash the proceedings as prayed for."
13. Further, the Co-ordinate Bench of this Court in the case of Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub- Inspector, Jeevandheema Nagar Police Station, Bengaluru and Another reported in 2018(1) Kar.L.J. 469 wherein at paragraph-5 is held as under:
"5. It is true that the charge sheet has been filed under Section 188 of IPC on the above noted allegations. Section 188 of IPC deals with the offence with reference to the disobedience to any order duly promulgated by a public servant. If there is disobedience of any Order promulgated, then the public servant who is aggrieved of the person who promulgated the Order or any Public servant authorized can file a private complaint. In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction 11 to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India."
14. Further, the Co-ordinate Bench of this Court in the case of Shivangouda Naik vs. The State of Karnataka in Criminal Petition No.15853/2013 DD 09.07.2019, discussed the applicability of provisions of Section 188 of IPC 12 and Section 130 of Representation of People Act, at Para Nos.13 and 14 which reads as under:-
"13. In the case of Dr.K.P.Gopal Krishna (supra), this Court observed as under:
"It is true that the charge sheet has been filed under Section 188 of IPC on the above noted allegations. Section 188 of IPC deals with the offence with reference to the disobedience to any order duly promulgated by a public servant. If there is disobedience of any order promulgated, then the public servant who is aggrieved of the person who promulgated the order or any public servant authorized can file a private complaint. In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to 13 the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the Court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India."
"14. In the case on hand, the records disclose that on the basis of the complaint filed by the Government official who was present at the polling booth, the respondent police have registered the FIR. But, the same is not in accordance with law. Admittedly, the complainant being a public servant has lodged a complaint before the police instead of filing it before the jurisdictional Magistrate. The allegations made in the complaint do not attract the ingredients of Section 130 of Representation of People Act, 1951, as there are no specific allegations about canvassing nearing the polling station. Therefore, initiation of proceedings on the basis of the complaint filed before the police by the election officer is contrary to law and procedure prescribed."
15. The police cannot investigate the matter without proper permission by the learned JMFC and in view of the 14 said principles, the order of learned JMFC does not indicate as he has applied his judicial mind and granted permission. No such order is forthcoming.
16. There is bar under Section 195 of Cr.P.C. regarding taking cognizance in respect of Section 188 of IPC. Therefore, the order is cryptic, which does not satisfy the order required which is passed under 155(2) of Cr.P.C. Therefore, the continuation of proceedings against the petitioner for the alleged offence as stated above is not justifiable in view the principles stated in above referred decisions.
17. Further, keeping in view of the decision of the Hon'ble Supreme Court in the case of Neeharika Infrastructure Private Limited Vs. State of Maharashtra and others, reported in (2020) 10 SCC 118, the petitioner has made out grounds for allowing the petition. Therefore, continue of proceedings is nothing but abuse of process of Court. Hence, the said proceedings required to be quashed. Hence, I proceed to pass the following: 15
ORDER The criminal petition filed under Section 482 of Cr.P.C.
is hereby allowed.
The proceedings in C.C.No.722/2018 (Lingasugur Police Station Crime No.197/2018) for the offences punishable under Sections 171H, 188 of IPC and Section 109 of K.P.Act, on the file of Prl. Civil Judge (Jr.Dn.) & JMFC at Lingasugur, Dist.Raichur, is hereby quashed.
Sd/-
JUDGE s du