Karnataka High Court
Nazir Lazam Nandiwale vs The State Of Karnataka on 11 April, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
Crl.P. No.100559/2019
BETWEEN:
1. NAZIR LAZAM NANDIWALE
AGED: 42 YEARS,
OCC: COOLIE,
R/O: KUDACHI,
TQ: RAIBAG,
DIST: BELAGAVI.
2. SAHEBHUSSEN DADEPEER CHAMANMALIK
AGED: 41 YEARS,
OCC: AGRICULTURE,
R/O: KUDACHI,
TQ: RAIBAG,
DIST: BELAGAVI.
... PETITIONERS
(BY SMT. BHAGYASHREE BIKKANNAVAR, ADV. FOR
SRI. RAMACHANDRA MALI, ADV.)
2
AND
THE STATE OF KARNATAKA
REP. BY KUDACHI POLICE STATION,
BELAGAVI DISTRICT,
NOW REP. BY STATE P.P.,
HIGH COURT OF KARNATAKA BUILDING,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.482
OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT
RECORDS IN C.C. NO.36/2019 ON THE FILE OF
ADDL. CIVIL JUDGE & JMFC RAIBAG AND QUASH
THE COMPLAINT AND FIR DATED 24.01.2019
REGISTERED IN KUDACHI PS CRIME NO.08/2019
AND ALSO THE CHARGE SHEET AND THE ENTIRE
PROCEEDINGS IN C.C. NO.36/2019 FOR THE
OFFENCE PUNISHABLE U/SEC.420 IPC AND
SEC.78(iii) OF KARNATAKA POLICE ACT ON THE FILE
OF ADDL. CIVIL JUDGE & JMFC RAIBAG IN SO FAR
AS THE SAME RELATE TO THE PETITIONERS HEREIN,
AS THE SAME BEING VITIATED, ILLEGAL AND NOT
SUSTAINABLE IN LAW IN VIEW OF THE LAW LAID
DOWN BY THIS HON'BLE COURT IN CRL. P.
NO.100319/2014 DISPOSED OF ON 25.07.2014 AND
IN CRL. P. NO.3365/2016 AND OTHER CONNECTED
MATTERS DISPOSED OF ON 07.04.2017.
3
THIS PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE MADE THE
FOLLOWING:
ORDER
Heard the arguments of petitioners' counsel and the HCGP for the respondent.
2. The factual matrix of the case is that, on 24.01.2019, the complainant-PSI, Kudachi P.S., has received credible information that these petitioners are playing 'matka' and that they are cheating the general public and hence, immediately along with the staff rushed to the spot and apprehended three persons and found the amount of Rs.430/- and drawn the Mahazar. A case has been registered against the petitioners for the offences punishable under Sections 420 of IPC and Section 78(3) of the Karnataka Police Act, 1963. 4
3. The petitioners in this petition contended that offences alleged against the petitioners are only a non cognizable offence and in order to over come the compliance of Section 152(2) of Cr.P.C. Section 420 has been invoked and no permission is taken to initiate proceedings against the petitioners and hence, on account of noncompliance of Section 152(2) of Cr.P.C. proceedings has to be quashed.
4. Petitioners' counsel in support of her contention also relied upon the judgment passed by this Court in Crl.P.Nos.3365/2016 connected with other petitions between Sri Nabisab S/o Shek Imamsab Vs. The State of Karnataka and contend that in the similar set of facts, this Court held that only in order to over come proviso of Section 155(2) of Cr.P.C. the penal proviso of Section 420 is invoked and nothing on record 5 to invoke Section 420 of IPC. Hence, quashed the proceedings initiated against the petitioners in that case and the very same judgment is also applicable to the case on hand.
5. Per contra, the learned HCGP in his arguments he contends that while registering the case not only invoked offence under Section 78(3) of the Karnataka Police Act, 1963 and also invoked Section 420 of IPC and hence, compliance of Section 155(2) does not arise and hence, prayed this Court to dismiss the petition.
6. Having heard the arguments of petitioners' counsel and also the learned HCGP and on perusal of the complaint averments, an allegation is made that these petitioners were playing matka and cheating the general public and mere using the word 'they are 6 cheating the general public' cannot fulfill the ingredients of Section 420 of IPC. It is rightly pointed out by the counsel appearing for the petitioners that only in order to over come Section 155(2) of Cr.P.C. a penal proviso of Section 420 of IPC is invoked. Except the said word nothing is mentioned in the complaint to invoke Section 420 of IPC. This Court in the judgment referred supra categorically held that there are no any materials to invoke Section 420 of IPC. At para 24 of the judgment also observed order that 'it is no doubt true if any one of the offence out of the alleged offences is cognizable offence then in that case obtaining prior permission from the concerned Magistrate Court as per Section 155(2) of the Cr.P.C. before proceeding to investigate the matter is not at all necessary. It is further observed that looking to the above cases for consideration whether really the materials goes to show that there is 7 also offence under Section 420 of the IPC, committed by the accused and invoking of Section 420 there must be compliance of ingredients of Section 420.
7. The Police after the investigation have filed the charge sheet and while filing the charge sheet also invoked Section 420 of Cr.P.C. and in the judgment referred Supra, this Court has observed that no charge sheet has been filed for the offence punishable under Section 420 of IPC and this Court has to examine whether any allegation made in the complaint as well as in the statement of witnesses, whether it constitute the offence under Section 420 of IPC.
8. On perusal of the charge sheet allegation except using the word that 'they have cheated the general public' nothing is alleged in the Court while filing the charge sheet and witnesses who have been 8 quoted as CWs.2 to 8 have stated with regard to these persons were involved in playing matka and I do not find any material to constitute an offence under Section 420 of IPC. It appears in order to over come the proviso of Section 152(2), Section 420 of IPC is invoked and in the absence of any ingredients to constitute the offence under Section 420 of IPC, I do not find any material with regard to Section 420 of IPC and hence, even though charge sheet has been filed for the offence punishable under Section 420 of IPC in the absence of material if any proceedings is continued mere mentioning Section 420 of IPC, it amount to abuse of process and leads to miscarriage of justice.
9. In view of the discussion made above, I pass the following:
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ORDER The petition is allowed. The very initiation of proceedings in the complaint and FIR registered in Crime No.8/2019 on the file of the Kudachi P.S. is quashed.
Sd/-
JUDGE Vmb