Karnataka High Court
Shivaraja vs The State Of Karnataka on 22 August, 2024
Author: K Natarajan
Bench: K Natarajan
-1-
NC: 2024:KHC-K:6203
CRL.P No. 201020 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO.201020 OF 2024
(482(Cr.PC)/528(BNSS))
BETWEEN:
SHIVARAJA S/O JEEVAPPA,
AGED ABOUT 51 YEARS, OCC: VENDOR,
RESIDENT OF GABBUR VILLAGE,
TQ. DEVADURGA, DIST. RAICHUR.
...PETITIONER
(BY SRI. SHRIHARSHA R. HARWAL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY GABBUR POLICE STATION,
Digitally signed
by SHIVALEELA RAICHUR, THROUGH ITS P.S.I,
DATTATRAYA REPRESENTED BY ADDL. SPP
UDAGI
HIGH COURT OF KARNATAKA
Location: High
Court Of KALABURAGI BENCH-585103.
Karnataka
...RESPONDENT
(BY SRI. SHABUDDIN JAMADAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO ALLOW THIS PETITION AND QUASH
THE PROCEEDINGS IN C.C NO. 820/2023 ON THE FILE OF THE
HON'BLE SENIOR CIVIL JUDGE AND JMFC DEVADURGA
ARISING OUT OF CR.NO. 145/2023 IN GABBUR P.S. FOR
OFFENCE PUNISHABLE UNDER SECTION 78(3) OF THE
KARNATAKA POLICE ACT, AGAINST THE PETITIONER AND TO
-2-
NC: 2024:KHC-K:6203
CRL.P No. 201020 of 2024
PASS ANY OTHER APPROPRIATE ORDERS AS MAY BE DEEMED
NECESSARY IN THE FACTS AND CIRCUMSTANCES OF THE
CASE.
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN) This petition is filed by the petitioner-accused under Section 528 of BNSS/Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.820/2023 pending on the file of the Senior Civil Judge And JMFC, Devadurga, arising out of Crime No.145/2023 registered by Gabbur Police and charge sheeted for the offence punishable under Section 78(3) of Karnataka Police Act (hereinafter referred to as 'K.P. Act').
2. The case of the petitioner is that the Gabbur police registered a suo moto FIR in Crime No.145/2023 for the alleged offence contending that they received credible information on 21.10.2023 that some persons playing matka/gambling. Immediately, the police taken the witnesses, raid the spot and seized the cash and then came back to police station and sent a -3- NC: 2024:KHC-K:6203 CRL.P No. 201020 of 2024 report to Head Constable for obtaining permission and then, registered FIR and filed the charge sheet, which is under challenge.
3. Learned counsel appearing for the petitioner has contended that without seeking permission, the police conducted investigation, the statement was recorded and thereafter, FIR was registered, which is against Section 161 of Cr.P.C. hit by Section 154 of Cr.P.C. The warrant also was not obtained by the police while raiding the spot. Hence, conducting the proceedings against the petitioner is abuse of process of law. Hence, prayed for quashing the proceedings.
4. Learned High Court Government Pleader has objected the petition and prayed for dismissing the petition.
5. Having heard the learned counsel appearing for the parties, perused the records.
6. The records reveal that the police received credible information that some persons were playing matka/gambling. -4-
NC: 2024:KHC-K:6203 CRL.P No. 201020 of 2024 Accordingly, the police team visited the spot, apprehended the petitioner and prepared the panchanama on 21.10.2023 between 3.30 p.m. and 4:30 p.m. and thereafter, came back to the police station. They said to be recorded the statement of constable and later, they sent requisition to the Magistrate for registering the FIR as it is a non-cognizable offence. Accordingly, the Magistrate accorded permission on 22.10.2023 at 12:55 p.m. for registering the FIR.
7. The records further reveal that the police though need not obtain permission for the purpose of raid and searching the premises of gambling, but before going to the spot or a place, they have to obtain the search warrant from the higher authorities as per section 81 of the K.P. Act.
8. Section 81 of K.P. Act reads as under:
It shall be lawful for a Police Officer,--(i)in the City of Bangalore not below the rank of a Sub-Inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the District Magistrate or Sub-Divisional Magistrate, or Commissioner of Police or Superintendent of Police; or Deputy Commissioner -5- NC: 2024:KHC-K:6203 CRL.P No. 201020 of 2024 of Police, Assistant Superintendent of Police or Deputy Superintendent of Police or Assistant Commissioner of Police, and (ii) elsewhere not below the rank of a Sub-Inspector of Police and either empowered by general order in writing or authorised in each case by special warrant issued by a District Magistrate or Sub-Divisional Magistrate, or by a Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police,--(a)to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any building, room, tent, enclosure, vehicle, vessel or place, which he has reason to suspect is used as a common gaming-house or for the purpose of gaming on any of the objects referred to in sub-section (1) of section 78;(b)to search all parts of the building, room, tent, enclosure, vehicle, vessel or place which he shall have so entered, when he shall have reason to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein, whether such persons are then actually gaming or not;(c)to take into custody and bring before a Magistrate all such persons;(d)to seize all instruments of gaming and all moneys and securities for money and articles of value which are -6- NC: 2024:KHC-K:6203 CRL.P No. 201020 of 2024 reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein: Provided that no officer shall be authorised by special warrant unless the Commissioner or Deputy Commissioner or Assistant Commissioner of Police or Magistrate or Superintendent, Assistant or Deputy Superintendent of Police concerned is satisfied, upon a written complaint or report made to him and upon making such inquiry as he may think necessary, that there are good grounds to suspect the said building, room, tent, enclosure, vehicle, vessel, or place to be used as a common gaming- house.
9. It is clear from the provision of Section 81 of the K.P. Act that before going to search and seize, the police officer shall obtain a search warrant under Section 81 of the K.P. Act and without obtaining the search warrant, going to the spot and seizing the cash and thereafter, obtaining permission under Section 155 of Cr.P.C. is an illegal search, which is not sustainable in law.
10. Apart from that, it is seen from the statement of the witnesses recorded by the police on 21.10.2023, the witnesses -7- NC: 2024:KHC-K:6203 CRL.P No. 201020 of 2024 were also acted under panchanama. The statement of witnesses under Section 161 of Cr.P.C. shall have to be recorded only after registering FIR under Section 154 of Cr.P.C. Therefore, investigation also commenced prior to registering the FIR. Hence, Section 161 of Cr.P.C. is hit by Section 154 of Cr.P.C. Therefore, the proceedings against the petitioner is not sustainable in law. Accordingly, continuation of proceedings against the petitioner is abuse of process of law and they are liable to be quashed.
11. Accordingly, the petition is allowed. The criminal proceedings against petitioner is hereby quashed. The cash, if any, seized by the police shall be confiscated to the state.
The pending I.As. if any do not survive for consideration and they are accordingly disposed of.
Sd/-
(K NATARAJAN) JUDGE CS List No.: 1 Sl No.: 43 CT:SI