Karnataka High Court
Sunil Valyapure S/O Yamnappa Valyapure vs The State Through on 6 February, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.201387/2016
Between:
Sunil Valyapure
S/o Yamnappa Valyapure
Aged about 41 years
Occ: Ex-MLA and Social Service
R/o Chincholi, Tq. Chincholi
Dist. Kalaburagi
... Petitioner
(By Sri Amareshwar S. Rawoor &
Sri Ganesh Naik, Advocates)
And:
The State through
Kalagi Police Station, Tq. Chittapur
Dist. Kalaburagi
Represented by Addl. SPP
... Respondent
(By Sri Sheshadri Jaishankar M., HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the criminal proceedings initiated
against the petitioner in C.C.No.393/2013 on the file of Civil
Judge and JMFC Chittapur, for the offences punishable
under Sections 103 and 109 of the Karnataka Police Act.
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This petition is coming on for Admission this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.393/2013 pending on the file of the Civil Judge and JMFC, Chittapur, registered for the offences punishable under Sections 103 and 109 of the Karnataka Police Act.
2. Brief facts of the case are that, during the Assembly Election, the complainant-Flying Squad, Kalagi Circle, filed a complaint alleging that on 27.04.2013 between 4.00 p.m., and 5.00 p.m., in the premises of Ishwar Temple in Kodadur village, the accused/petitioner by using amplifier has addressed an election gathering without prior permission of the competent authority. Thereby, the petitioner has violated the Code of Conduct and committed the 3 offences punishable under Sections 103 and 109 of the Karnataka Police Act.
3. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. The main grounds urged by the learned for the petitioner are that the proceeding initiated is in violation of Section 195 of Cr.P.C., the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. Therefore, registration of case under Sections 103 and 109 of the Karnataka Police Act is illegal. It is also contended that the said offences are non-cognizable offences and the police cannot investigate without the permission of the jurisdictional Magistrate under Section 155(2) of Cr.P.C. On these grounds, he prays for allowing the petition by quashing the proceedings.
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5. On the contrary the learned High Court Government Pleader appearing for the respondent-State has contended that the complainant has filed the complaint as there was violation of Code of Conduct. It is only a procedural irregularity and not illegality. On these grounds, he prays for dismissal of the petition.
6. I have gone through the contentions taken up by both the counsels.
7. As could be seen from the provisions of Section 195 of Cr.P.C., the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. The above said provision clearly creates a statutory bar to the Court for taking cognizance unless the complaint in writing is made by the public servant to whom he is administratively subordinate. In view of the above said provision, it takes away the general power of Magistrate under Section 190 of Cr.P.C. 5
8. On perusal of the records, it would indicate that there is no complaint in writing lodged by the flying squad as contemplated under the above provision of law. The learned Magistrate has taken the cognizance of the said offences only on the report of the police. The registration of the case by the Police under Sections 103 and 109 of the Karnataka Police Act itself is illegal.
9. On going through the Sections 103 and 109 of the Karnataka Police Act, the said offences are non- cognizable offences under the classification of the offences in Schedule-II to Cr.P.C., when the offence is non-cognizable, Section 155(2) of Cr.P.C., creates a bar to the police to investigate such matter without the valid permission from the jurisdictional Magistrate. Section 155(2) of Cr.P.C. reads as follows:
"155. Information as to non-cognizable cases and investigation of such cases.-
(1) xxx 6 (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."
10. It is an absolute bar. In view of the said factual and legal aspects, it is clear that registration of crime is illegal and no permission was taken by the Police for the purpose of investigating the said offences. In that view of the matter, the entire proceedings are vitiated by serious illegality. Therefore, the learned Magistrate ought not to have taken cognizance of the said offences.
11. Once an illegality perpetuates into the investigation, such investigation is hit by the statutory principle and it cannot be construed as legal proceedings or legal investigation. In that light, the cognizance taken by the learned Magistrate appears to be illegal. Hence, the petition deserves to be allowed. 7
12. Accordingly, the petition is allowed and the entire proceedings in C.C.No.393/2013 pending on the file of the Civil Judge and JMFC, Chittapur, is hereby quashed.
Sd/-
JUDGE NB* Ct: MHS