Karnataka High Court
Sri. Gaibusab Ameerasab Dalayat vs The State Of Karnataka on 18 December, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18th DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101752/2017
BETWEEN:
Sri. Gaibusab Ameerasab Dalayat,
S/o. Ameerasab Dalayat,
Member - Kerur Town Panchayat, Kerur,
Occupation : Agriculturist,
Aged about 46 years,
Residing at Killa Galli, Kerur,
Kerur Town, Badami Taluk,
Bagalkot District, Pin Code - 587206
... Petitioner
(By Sri. Vijay S. Chiniwar and
Sri. Vijaykumar G. Bagoji, Advocates)
AND:
1. The State of Karnataka by Kerur
Police Station by Police Sub-Inspector,
Represented by Public Prosecutor,
Office at High Court of Karnataka,
At Dharwad, Pin Code -580011.
2. Sri. Parappa Hanamunthappa Konnur,
S/o. Hanamunthappa Konnur,
The Election Officer,
Kerur Town Panchayat, Kerur,
Crl.P.No.101752/2017
:2:
And Sericulture Distributing Officer,
Technical Service Centre Badami,
Department of Sericulture,
Badami, Taluk - Badami,
District - Bagalkot,
Pin Code - 587201
...Respondents
(By Sri. Praveen Uppar, HCGP for R1;
R2 - served )
---
This Criminal Petition is filed under Section 482 of
Cr.P.C., seeking to quash all the proceedings in C.C.No.424
of 2014 on the file of the Principal Civil Judge and Principal
JMFC Badami for the offences under Section 176, 177, 181,
199 and 200 of the IPC is produced at Annexure-A and to
quash charge sheet filed in C.C.No.424 of 2014 on the file of
the Principal Civil Judge and Principal JMFC Badami produced
at Annexure-B and to quash the FIR in Crime No.22 of 2014
filed before the Principal Civil Judge and Principal JMFC
Badami which has been produced at Annnexure-C, registered
by the respondent No.1 and to quash the complaint which
has been produced at Annexure-D filed by the respondent
No.2 with the respondent No.1.
This petition coming on for Admission through physical
hearing/video conferencing hearing, having been heard and
reserved for orders on 14.12.2020, this day, the court made
the following:
Crl.P.No.101752/2017
:3:
ORDER
The petitioner herein has sought for quashing of all the proceedings in C.C.No.424/2014, said to be pending in the Court of learned Principal Civil Judge & Principal JMFC, Badami (for brevity referred to as 'the trial Court'), for the offences punishable under Sections 176, 177, 181, 199 and 200 of Indian Penal Code (for short 'IPC').
2. The summary of the charge sheet is that, the present petitioner while contesting and getting elected as a Member of Town Panchayat of Kerur town during the election which was held in March, 2013, had filed a false affidavit about his assets concealing certain assets which he was holding as on the said date and thus, has committed offence punishable under Sections 176, 177, 181, 199 and 200 of IPC.
Crl.P.No.101752/2017:4:
3. The respondent No.1 is being represented by the learned High Court Government Pleader and respondent No.2 though served has remained absent.
4. The matter is though listed for admission, however, with the consent from both the sides, the matter is taken up for its final disposal.
5. Heard the arguments from both side. Perused the papers placed before this Court.
6. The Election Officer who was the Sericulture Extension Officer had filed a complaint on 03.02.2014 before the respondent No.1 police station, alleging the furnishing of false details and filing a false affidavit by the petitioner in the Town Panchayat Election of Kerur Town in March, 2013 and has alleged that he had committed an offence punishable under Sections 176, 177, 181, 199 and 200 of IPC. The complainant has also stated that, it is based on the State Election Commission Crl.P.No.101752/2017 :5: directions which have reached him through jurisdictional Additional Deputy Commissioner and jurisdictional Tahashildar, he has filed the complaint. After investigation, the respondent police have filed charge sheet against the petitioner for the alleged offences.
7. Learned counsel for the petitioner in his argument submitted that, admittedly the alleged offences are non-cognizable offence. The Investigating Officer has not obtained prior permission from the learned Magistrate before investigation of the matter. He further submits that though the Jurisdictional Magistrate has written as 'permitted' but the same cannot be considered as an order passed by him by application of his mind, as such, the investigation stands vitiated under Section 155(2) of Code of Criminal Procedure, 1973 (for brevity hereinafter referred to as 'Cr.P.C.).
In his support, he also relies upon a Judgment of a co-ordinate Bench of this Court in A.Alam Pasha Crl.P.No.101752/2017 :6: Vs. State of Karnataka in Criminal Petition No.100197/2014 dated 03.02.2014. In the said case, a co-ordinate Bench of this Court in a almost similar circumstance for the alleged offence punishable under Section 171(H) of IPC and under Section 133 of Representation of People Act, 1951, was pleased to observe that since the investigation was conducted by the Investigating Officer without obtaining a specific order by the learned Magistrate though required under Section 155(2) of Cr.P.C., it was held that the entire investigation stood vitiated. Accordingly, by allowing the petition the Court proceeded to quash the proceeding under the criminal case which was challenged before it.
Learned counsel for the petitioner also relied upon another Judgment of a co-ordinate Bench of this Court in Siddu S/o. Kallappa Savadi and others Vs. The State of Karnataka and others in Criminal Petition No.100476/2016 dated 27.07.2017. Learned Crl.P.No.101752/2017 :7: counsel also relied upon an unreported Judgment of this Court in Sri. Lakopati Hanamantappa Hosapeti Vs. State of Karnataka by Kerur Police Station and another in Criminal Petition No.101314/2017 dated 15.10.2020, wherein in a similar circumstance, this Court had held that there was no compliance of Section 155(2) of Cr.P.C. and had allowed the petition.
8. Learned High Court Government Pleader (HCGP) appearing for the respondent No.1 in his argument submitted that, though the alleged offences are non-cognizable, however, the Investigating Officer has obtained prior permission under Section 155(2) of Cr.P.C. before proceeding further in the investigation. The concerned learned Magistrate has granted permission for investigation after verifying the materials placed before him, as such, the cases relied upon by the petitioner is not applicable to the facts and circumstances of the present case.
Crl.P.No.101752/2017:8:
9. A perusal of the materials placed before this Court and the argument submitted reveals that, undisputedly the present petitioner had contested for the post of a Member in Pattan Panchayat Elections held in March, 2013 for Kerur Pattan Panchayat and also got elected as a Member. The allegation against him is of suppression of certain details about some immovable properties said to have been held by him and filing a false affidavit before the Election Officer, and thereby it is alleged that he has committed the offences punishable under Sections 176, 177, 181, 199 and 200 of IPC.
10. As could be seen from the charge sheet, the said complaint filed by the Sericulture Extension Officer as an Election Officer was initially registered by the respondent No.1 police as a non-cognizable case in N.C.No.02/2014. In that regard, an endorsement is also made in the complaint as could be seen from the charge sheet papers. The charge sheet paper further reveals Crl.P.No.101752/2017 :9: that on 12.10.2016 i.e. on the very same day after receiving the complaint, the respondent police through its Assistant Sub-Inspector, submitted a written requisition to the jurisdictional Magistrate seeking permission to investigate upon the complaint bearing N.C.No.02/2014. The said requisition is also a part of the charge sheet placed before me. On the said requisition at the bottom of the said requisition there is an endorsement by the Magistrate which reads as "perused the documents and satisfied. Permitted to register the case against the accused". Thus, on receipt of the requisition, the Magistrate has permitted for investigation.
The Magistrate no doubt has granted permission to investigate vide his endorsement dated 03.02.2014, but it has to be seen whether that endorsement would suffice as a true compliance of mandate under Section Crl.P.No.101752/2017 : 10 : 155(2) of Cr.P.C. Section 155(2) of Cr.P.C. reads as below:
"155. Information as to non-cognizable cases and investigation of such cases -
(1) xxxxxx (2) 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."
11. A reading of Section 155 in its entirety more particularly Sub-Section 2 of Section 155 go to show that, for conducting an investigation in a non-cognizable case, the Police Officer is required to have an order of an Magistrate in that regard. Therefore, it is needless to say that, a Magistrate can order in a matter only after a perusal and analysis all the materials placed before him, which necessarily requires an application of mind by him before passing an order, either granting or rejecting the permission to investigate into the matter. No doubt, an order required to be passed under Section 155(2) of the Crl.P.No.101752/2017 : 11 : Cr.P.C., is not akin to a final order that would be passed in a matter after considering the merit of the entire case, still, before passing an order under Section 155(2) of the Cr.P.C., a Magistrate is required to go through the materials placed before him by the Investigating Officer and satisfy himself that there are sufficient materials to order for the investigation in the matter. At least to have such a satisfaction, the Magistrate is required to go through the materials or documents whatever that has been placed before him and write an order, however short it is, showing that he has perused the materials and has applied his mind before passing the order either granting or rejecting the permission.
12. In the instant case a perusal of the endorsement made by the Magistrate would go to show that, before permitting for registration of the case against the accused, though the Magistrate has claimed that he has perused the documents and satisfied, but Crl.P.No.101752/2017 : 12 : about his satisfaction no reasoning however short it may be is forthcoming. A single sentence endorsement does not show that what document he has perused or how he is satisfied for permitting to register the case against the accused. Thus, there is nothing on material to infer that the Magistrate had applied his mind. Therefore, the observations made in the A. Alam Pasha's case (supra), Siddu's case (supra) and also in Lakopati's case (supra), also applies in the case on hand, as such, the benefit of those cases would enure to the benefit of the petitioner herein. Hence, I proceed to pass the following order:
ORDER The Criminal Petition is allowed.
The entire proceeding in C.C.No.424/2014 pending on the file of the Principal Civil Judge and JMFC Court, Badami for the offences punishable under Sections 176, Crl.P.No.101752/2017 : 13 : 177, 181, 199 and 200 of Indian Penal Code, is quashed. The trial Court is at liberty to consider the request of the Investigating Officer made under Section 155 of Code of Criminal Procedure, 1973, seeking permission for investigation afresh and in accordance with law, in the light of the observations made above.
Registry to transmit a copy of this Order to the Trial Court, forthwith.
Sd/-
JUDGE *Svh/-