Karnataka High Court
Sri. Lakopati Hanamantappa Hosapeti vs The State Of Karnataka on 15 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2480, 2021 (1) AKR 650
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 15TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.101314/2017
BETWEEN:
Sri. Lakopati Hanamantappa Hosapeti,
S/o. Hanamantappa Hospeti,
Member - Pattan Panchayat, Kerur
Aged about 39 years,
Residing at Hosapete Oni,
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-580011.
2. Sri. Suresh Ningappa Huggi,
S/o. Ningappa Huggi,
Aged about 52 years,
Block Education Officer, Naragund,
Crl.P.No.101314/2017
:2:
Naragund Taluk, Gadag District,
Pion Code - 582207.
...Respondents
(By Sri. Praveen Uppar, HCGP for R1;
Sri. C.S.Shettar - Amicus Curiae for R2 )
---
This Criminal Petition is filed under Section 482 of
Cr.P.C., seeking to quash all proceedings and quash the
charge sheet at Annexures-A and B and quash the FIR in
Crime No.166/2016 filed before the Principal Civil Judge and
Prl. JMFC Badami which has been produced at Annexure-C,
registered by the respondent No.1 and 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 this day, the court made
the following:
ORDER
The petitioner herein has sought for quashing of all the proceedings in C.C.No.380/2017, 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 Section 177 of Indian Penal Code (for short 'IPC') and Section 125A of Representation of People Act (for short 'R.P. Act'). Crl.P.No.101314/2017 :3:
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 February, 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 Section 177 of IPC and Section 125A of the R.P. Act.
3. The matter is though listed for admission, however, with the consent from both the sides, the matter is taken up for its final disposal.
4. The respondent No.1 is being represented by the learned High Court Government Pleader and respondent No.2 is being represented by learned Amicus Curiae appointed by this Court.
5. Heard the arguments from both side. Perused the papers placed before this Court.
Crl.P.No.101314/2017:4:
6. The Election Officer who was the Block Education Officer had filed a complaint on 12.10.2016 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 Feburary, 2013 and has alleged that he had committed an offence punishable under Section 177 of IPC and Section 125A of the R.P. Act. The complainant has also stated that, it is based on the State Election Commission directions which have reached him through jurisdictional 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 Sri. Vijay S. Chiniwar in his single point argument submitted that, admittedly the alleged offences are non-cognizable offence. The Investigating Officer has not obtained prior Crl.P.No.101314/2017 :5: permission from the learned Magistrate before investigation of the matter, as such, the investigation stands vitiated under Section 155(2) of Cr.P.C. In his support, he also relies upon a Judgment of a co-ordinate Bench of this Court in A.Alam Pasha 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 similar circumstance for the alleged offence punishable under Section 171(H) of IPC and under Section 133 of R.P.Act, 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 is 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. Crl.P.No.101314/2017 :6:
8. The learned High Court Government Pleader appearing for respondent No.1 and the learned Amicus Curiae appearing for respondent No.2 in their arguments though conceded fairly that the alleged offences against the present petitioner in the charge sheet are non-cognizable, however, both of them uniformly made a submission that the petitioner is guilty of the suppression of the facts and that he has not produced the copy of the charge sheet in its entirety and has suppressed that particular portion of the charge sheet wherein the Investigating officer after receiving the complaint has submitted a requisition to the learned Magistrate along with the complaint and the documents seeking necessary orders under Section 155(2) of Cr.P.C. to proceed further with the investigation. Accordingly, the Learned Magistrate on 12.10.2016 has granted permission to investigate the matter. In that regard, learned HCGP also has produced the entire set Crl.P.No.101314/2017 :7: of charge sheet copy, wherein such a requisition made by the Investigating Officer and the order passed by the learned Magistrate upon the said requisition permitting the Investigating Officer to investigate can be noticed. Learned HCGP also brought to the notice of this Court that when the complaint was received by the respondent police, it was registered for non-cognizable offences only and that it is only after obtaining permission from the learned Magistrate to investigate in to the matter, it was registered as a crime and FIR was submitted to the Court. The charge sheet papers also reveal the same.
9. It is at that stage in his reply argument, the learned counsel for the petitioner conceded that the learned Magistrate has granted such permission and has permitted the Investigating Officer to investigate the matter. However, the learned counsel for the petitioner submitted that the said permission granted by the learned Magistrate was not in strict compliance of Crl.P.No.101314/2017 :8: Section 155(2) of Cr.P.C., because there is no application of mind by the learned Magistrate before granting permission. In his support, he 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.
10. 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 February, 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 Section 177 of IPC and Section 125A of the R.P.Act. Crl.P.No.101314/2017 :9:
11. As could be seen from the charge sheet, the said complaint filed by the Block Education Officer as an Election Officer was initially registered by the respondent No.1 police as a non-cognizable case in N.C.No.33/2016. 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 that on 12.10.2016 i.e. on the very same day after receiving the complaint, the respondent police through its Sub- Inspector, submitted a written requisition to the jurisdictional Magistrate seeking permission to investigate upon the complaint bearing N.C.No.33/2016. The said requisition is also a part of the charge sheet placed before me. In the second page of the said requisition at the bottom of the said requisition there is an endorsement by the Magistrate which reads as "permitted to investigation, signed dated 12.10.2016". Thus, on receipt of the requisition, the Magistrate has permitted for Crl.P.No.101314/2017 : 10 : investigation. This aspect the learned counsel for the petitioner did not reveal before the Court in his first leg of argument. It is only after the learned HCGP and the learned Amicus Curiae for the respondent brought to the notice of the Court about such a permission said to have been granted by the learned Magistrate by producing the copy of the charge sheet in its entirety, the learned counsel for the petitioner fairly conceded. Though the petitioner too had produced the copy of the charge sheet, but he has chosen to place only the particular pages of the charge sheet which were favorable to him but had not produced the charge sheet copy in its entirety. Even the submission of the learned counsel made in his reply argument conceding that such an endorsement was made by the learned Magistrate was also not to the effect that it is only in the Court today he came to know that such a permission was granted by the Magistrate. On the other hand, the Crl.P.No.101314/2017 : 11 : submission of the learned counsel for the petitioner shows that he knew that the learned Magistrate had granted permission through an endorsement as reflected above on 12.10.2016 itself, however, he chose not to reveal the same before the Court. It is after conceding that such an endorsement was made by the learned Magistrate, the learned counsel for the petitioner immediately placed before me the photo copy of the order dated 27.07.2017 passed in Siddu's case (supra) which also go to show that the learned counsel for the petitioner was aware of the permission granted by the learned Magistrate on 12.10.2016 upon the requisition submitted to him by the respondent police and as such he had come prepared even to address his arguments and to the meet the situation with respect to the said endorsement of permission. This style of suppressing a fact before the Court during the course of an argument is not a healthy attitude.
Crl.P.No.101314/2017: 12 :
12. The Magistrate no doubt has granted permission to investigate vide his endorsement dated 12.10.2016, but it has to be seen whether that endorsement would suffice as a true compliance of mandate under Section 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."
13. 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, Crl.P.No.101314/2017 : 13 : 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 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. A mechanical order as the one in the case on hand that Crl.P.No.101314/2017 : 14 : 'permitted to investigate' would in my view does not show whether the Magistrate was placed before him any of the materials apart from the requisition letter by the Investigating Officer or that the Magistrate has gone through any other materials before granting permission to investigate. On the other hand, the said endorsement would lead to believe that, the Magistrate in a mechanical manner and without even applying his mind has endorsed on the requisition granting permission. This according to me would not serve the object of Section 155(2) and would not entitle to be called as an order 'of a Magistrate' under Section 155(2) of Cr.P.C.
14. Even in Siddu's case (supra) also the facts were almost similar wherein also the learned Magistrate had made an endorsement on the requisition mentioning `permitted' and had put his signature. With respect to the same, the Co-ordinate Bench of this Court has made Crl.P.No.101314/2017 : 15 : the following observations in its order in Siddu's case (supra), which is reproduced herein below:
"I have perused the same. The learned Magistrate mentioned as "permitted" below that he has put his signature and the date. But now the question is whether this endorsement as permitted on the police requisition amounts to sufficient compliance of mandatory requirements of Section 155(2) of the Cr.P.C. The object of the said section is that whenever such request is made by the Investigation Officer, the learned Magistrate has to apply his judicial mind to the requisition and also the supporting material to the said requisition and he has to take a decision in the matter whether he satisfied about the said material that there is a case to give such permission to the Police Officer to proceed with the investigation in the matter or it is not a case for give such permission. But looking to the requisition dated 01.06.2015, there is no mention by the learned Magistrate what are the materials perused. So this goes to show that only the requisition was placed before the learned Magistrate. Because there is no mention about the other documents annexed along with this requisition. When that is so only because of mentioning the word permitted it cannot be said that it is in compliance of the mandatory Crl.P.No.101314/2017 : 16 : requirements of Section 155(2) of the Cr.P.C. Therefore, in reality it is no permission at all. Under such circumstances, the prosecution has not satisfied the Court that mandatory requirements are complied with before proceeding with the investigation in the matter. Therefore, these legal aspects have been completely overlooked by the trial court while ordering for registering the criminal case and to proceed with the matter by issuing process to the petitioners herein."
15. Thus, the present circumstance of the case also warrants the quashing of the criminal proceedings initiated against the present petitioner in C.C.No.380/2017, however, I am of the view that, merely because the learned Magistrate is shown to have not applied his mind while granting permission for investigation the same should not result in giving a clean chit to the petitioner/accused without due process of law i.e. without the matter being properly investigated. As such, I am also of the view that, the matter be remanded to the learned Magistrate to proceed further in accordance with law and to re-consider the requisition of Crl.P.No.101314/2017 : 17 : the respondent police dated 12.10.2016 seeking an order to investigate in their station complaint N.C.No.33/2016.
16. Accordingly, I proceed to pass the following order:
ORDER The Criminal Petition is allowed in-part.
The investigation held in Crime No.166/2016 of the respondent No.1-Police Station for the offences punishable under Section 177 of the IPC and Section 125A of the R.P. Act, is quashed. Consequently, the proceedings in C.C.No.380/2017, on the file of learned Prl. Civil Judge & Prl. J.M.F.C., Badami, from the stage of granting permission under Section 155(2) of Cr.P.C.
to investigate the matter, is quashed. However, the learned Principal Civil Judge and Principal JMFC Court, Badami, is at liberty to reconsider the requisition made Crl.P.No.101314/2017 : 18 : to it by the respondent No.1 police station vide its requisition letter dated 12.10.2016, seeking permission to investigate in the station complaint in N.C.No.33/2016, in accordance with law.
This Court while acknowledging the service rendered by Sri. C.S.Shettar, learned Amicus Curiae for respondent No.2, recommends him a honorarium of not less than `3,000/-, payable by the Registry, without any delay.
Registry to transmit a copy of this Order to the Trial Court, forthwith.
Sd/-
JUDGE *Svh/-