Karnataka High Court
Sunil Valyapure S/O Yamanappa vs The State Of Karnataka on 6 February, 2017
Equivalent citations: 2017 (2) AKR 399
1
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.201377/2016
Between:
Sunil Valyapure S/o Yamanappa
Age: 41 years, Occ: Agriculture
R/o Chincholi, Dist. Kalaburagi
... Petitioner
(By Sri Amareshwar S. Rawoor &
Sri Ganesh Naik, Advocates)
And:
The State of Karnataka
Represented by SPP
High Court of Karnataka
Bench at Kalaburagi
Through Chincholi Police Station
Chincholi
... Respondent
(By Sri Sheshadri Jaishankar M., HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the charge sheet and order dated
31.12.2014 passed in C.C.No.06/2015 (Crime No.38/2013)
pending on the file of Principal Civil Judge and JMFC at
Chincholi.
This petition is coming on for Admission this day, the
Court made the following:-
2
ORDER
This petition is filed by the petitioner/accused No.3 under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.6/2015 pending on the file of Principal Civil Judge and JMFC at Chincholi, registered for the offence punishable under Section 3 of the Karnataka Open Places (Prevention of Disfigurement) 1981.
2. Brief facts of the case are that, Code of Conduct of Election Officer, Chincholi, filed a complaint alleging that on 03.03.2013 in between 7.05 p.m., and 7.15 p.m., from ward No.13 nearly 40 people along with KGP party candidate were coming to ward No.1 Badi Dargah Road, by holding party flags in the hands unauthorizedly and without prior permission they were canvassing by violating Code of Conduct.
3
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 Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 is illegal. It is also contended that the said offence is non- cognizable offence and the police cannot investigate without the permission of the jurisdictional Magistrate under Section 155(2) of Cr.P.C. The cognizance ought to have been taken within one year under Section 468(2) of Cr.P.C., as such the cognizance taken itself is barred by time of limitation. On these grounds, he prays for allowing the petition by quashing the proceedings. 4
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 Code of Conduct of Election Officer as contemplated under the above provision of law. The learned Magistrate has taken the cognizance of the said offence only on the report of the police. The registration of the case by the Police under Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 itself is illegal.
9. On going through the Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981, it is a non-cognizable offence. 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 (2) No police officer shall investigate a non-
cognizable case without the order of a 6 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 offence. 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 offence.
11. The learned counsel for the petitioner would contend that the Court below ought not to have taken cognizance after lapse of period of limitation. For the purpose of brevity, I quote 468 of Cr.P.C., which reads as under:
"468. Bar to taking cognizance after lapse of the period of limitation.-
(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub- section(2), after the expiry of the period of limitation.7
(2) The Period of limitation shall be -
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]"
12. On going through the above provision of law, sub-clause (2)(b) of Section 468 of Cr.P.C., enumerates that cognizance of the offence has to be taken within a period of one year, if the offence is punishable with term not exceeding one year. But in the instant case, the learned Magistrate has taken cognizance after more than one year without taking note of the above said provision of 8 law. In that light also the proceedings initiated and taking of cognizance would vitiate the entire proceeding.
13. 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.
14. Accordingly, the petition is allowed and the entire proceedings in C.C.No.6/2015 pending on the file of the Principal Civil Judge and JMFC, Chincholi, insofar as it relates to petitioner/accused No.3 is concerned is hereby quashed.
Sd/-
JUDGE NB* Ct: MHS