Karnataka High Court
Rafiulla vs The State Of Karnataka on 15 November, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO. 5552/2017
C/W.
CRL.P. NOS.5553/2017 AND 5554/2017
IN CRL.P. NO. 5552/2017
BETWEEN
RAFIULLA,
S/O RATTI IBRAHIM SAB,
AGED ABOUT 60 YEARS,
R/O MALLEBENNUR,
HARIHARA TALUK,
DAVANGERE DISTRICT ... PETITIONER
(BY SRI. HANUMANTHAPPA A., ADV)
AND
THE STATE OF KARNATAKA,
THROUGH POLICE INSPECTOR,
DISTRICT CRIME BRANCH
SPECIAL POLICE STATION,
VIDYA NAGAR, DAVANGERE.
REP BY STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT BUILDING,
BENGALURU - 560 001 ... RESPONDENT
(BY SRI. S. RACHAIAH., HCGP )
2
THIS CRL.P IS FILED U/S 482 OF CODE OF
CRIMINAL PROCEDURE TO QUASH THE FIR SAME
REGISTERED IN CRIME NO.18/2017 BY THE
RESPONDENT POLICE DATED 9.5.2017 (PENDING ON
THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC
COURT AT DAVANGERE), IN SO FAR AS THE
PETITIONER IS CONCERN.
********
IN CRL.P. NO. 5553/2017
BETWEEN
SHABHIR,
S/O. AMEER JAN,
AGED ABOUT 62 YEARS,
R/O. MALLEBENNUR,
HARIHARA TALUK,
DAVANGERE DISTRICT. ... PETITIONER
(BY SRI. HANUMANTHAPPA A., ADV.)
AND
THE STATE OF KARNATAKA,
THROUGH POLICE INSPECTOR,
DISTRICT CRIME BRANCH,
SPECIAL POLICE STATION,
VIDYA NAGAR, DAVANGERE,
REP. BY THE STATE PUBLIC
PROSECUTOR, ADVOCATE
GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
BENGALURU 560001 ... RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO
QUASH THE FIR SAME REGISTERED IN CR.NO.17/2017
BY THE RESPONDENT POLICE DATED 09.05.2017
(PENDING ON THE FILE OF II ADDL. CIVIL JUDGE AND
3
JMFC, DAVANAGERE) IN SO FAR AS THE PETITIONER IS
CONCERN.
******
IN CRL.P. NO. 5554/2017
BETWEEN
FAQRUDEEN,
S/O. ZAMAL SAB,
AGED ABOUT 63 YEARS,
R/O. MALLEBENNUR,
HARIHARA TLAUK,
DAVANGERE DIST. ... PETITIONER
(BY SRI. HANUMANTHAPPA A., ADV.)
AND
THE STATE OF KARNATAKA.
THROUGH POLICE INSPECTOR,
DISTRICT CRIME BRANCH,
SPECIAL POLICE STATION,
VIDYA NAGAR, DAVANGERE,
REP. BY THE STATE PUBLIC
PROSECUTOR, ADVOCATE
GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
BENGALURU 560 001 ... RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
THIS CRL.P IS FILED U/S 482 PRAYING TO QUASH
THE FIR SAME REGISTERED IN CRIME NO.19/2017 BY
THE RESPONDENT POLICE DATED 10.5.2017 (PENDING
ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND
J.M.F.C. COURT AT DAVANAGERE), IN SO FAR AS THE
PETITIONER IS CONCERNED.
*******
4
THESE CRIMINAL PETITIONS COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners in all the cases are arrayed as Accused No.2 in Crime Nos.18 of 2017, 17 of 2017 and 19 of 2017 respectively.
2. These are the petitions filed u/s.482 of Cr.P.C. by the respective accused persons praying the court to quash the proceedings initiated by the respective police stations against the said accused persons for the offence punishable under section 78(3) of the Karnataka Police Act, 1963 ( 'KP Act' for short).
3. Regarding details of the above petitions, the same is furnished in the chart, which are as under:
Sl. Criminal Crime No. and Charge CC No. Petition Police Station sheet and the No. No. and offences offences Court
1. 5552/2017 18/2017 of 78(3) of Crime DCB Special KP Act No.18/2017 PS, Davanagere.5
2. 5553/2017 17/2017 of 78(3) of Crime DCB Special KP Act No.17/2017 PS, Davanagere
3. 5554/2017 19/2017 of 78(3) of Crime DCB Special KP Act No.19/2017 PS, Davanagere
4. Brief facts of the prosecution case is that, in all the above petitions, the petitioners/accused have committed offence punishable u/s.78(3) of the Karnataka Police Act (hereinafter referred to as 'Act' for short) and also the offence punishable u/s.420 of IPC in some of the cases. After investigation, the Investigating Officer submitted charge sheet for the offence punishable under section 78(3) of the KP Act and dropped Section 420 of IPC. In some of the above cases, registered by the police under the Karnataka Police Act, the charge sheet is not yet submitted. After filing of the charge sheet, the JMFC Court took cognizance of the offence and ordered to register a criminal case against the accused. 6
5. Being aggrieved by the initiation of the Criminal proceedings against them, the above petitioners/accused have approached this Court for quashing of the said proceedings and the FIR.
6. Heard the arguments of the learned counsel appearing for the petitioners/accused in respect of all the petitions and the learned High Court Government Pleader appearing for the respondent - State.
7. On perusal of the records, what is contemplated u/s.155(2) of Cr.P.C. is that if a non-cognizable offence is reported to the police, they cannot straight away go to the spot and investigate the matter. They must refer the complaint to the jurisdictional Magistrate and take permission of the jurisdictional Magistrate to investigate the matter.
8. In this regard, it is worth to extract Section 155 of Cr.P.C. 1973, which reads thus:
"155. Information as to non-
cognizable cases and investigation of such cases -7
(1) When information is given to an Officer in charge of a police station of the commission within the limits of such station of a non cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(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."
Sub-Clause (1) of Section 155 of Cr.P.C. also clears the doubt that when a non-cognizable offence is reported, then the police shall enter or cause to be entered the substance of the information in a book kept by such officer in such form as the State Government may prescribe and refer the informant to the Magistrate. Sub-Clause (2) of Section 155 of Cr.P.C. mandates that
- No police officer shall investigate the non cognizable offence without the order of a Magistrate having power to try such case or commit the case for trial. Therefore, it is mandatory provision that as soon the information is 8 received by the Police Officer himself, which is a credible information, he should refer himself to the Magistrate to take the permission and then investigate the matter.
9. This court had an occasion to deal with Karnataka Police Act in detail particularly with reference to almost all the provisions under the Karnataka Police Act, where those provisions are considered to be non- cognizable offence.
10. In a decision reported in 2015 CRL.LJ. 982 between Moin Basha Kurnooli Vs. State of Karnataka, this Court has categorically held while dealing u/s.155(2) of Cr.P.C. that in non-cognizable offence, particularly under the Karnataka Police Act, Investigation Officer conducted the investigation without obtaining the prior permission of the Magistrate or without referring the complaint to the Magistrate u/s.155(2) of Cr.P.C., such proceedings are vitiated by incurable defects and it amounts to illegality. Section 155(2) of Cr.P.C. is mandatory and not directory. Therefore, the investigation and the report filed by the Police Officers in such cases cannot be legally sustained. 9
11. In view of the above said decision, this court has to see what the police have done in the above said cases.
12. In all the above said cases, looking to the materials on record, it is the case of the prosecution that the jurisdictional police have received credible information with regard to some people indulged in committing the offences u/s.78(3) of Karnataka Police Act. The Police without taking permission of the Magistrate directly proceeded to the spot with panch witnesses and seized the incriminating articles and also arrested some persons and thereafter coming back to the Police Station registered cases and after investigation submitted the report. The above said proceedings before police are straight away hit by Section 155(1) and (2) of Cr.P.C.
13. In this particular case, though the credible information has been received by the police, the police did not go to the Magistrate to take permission, but directly go to the spot and almost investigated the matter and thereafter presented the special report to 10 the Magistrate for the purpose of taking permission, which is not a letter of spirit u/s.155(1) and (2) of Cr.P.C.
14. Under the above said circumstances, I do not find any strong reasons to reject the petitions. The proceedings initiated by the police are hit by serious procedural illegality which virtually amounts to irregularity and as such, the proceedings shall liable to be quashed.
Accordingly, the Petitions are allowed. The proceedings initiated in Crime Nos.18, 17 and 19 of 2017 on the file of the II Addl. Civil Judge (JR.DN.) & JMFC, Davanagere District, Davanagere, against the petitioners are hereby quashed.
Sd/-
JUDGE PL*