Karnataka High Court
Sri.Sangamesh Rudrappa Nirani vs The State Of Karnataka on 27 June, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRL.P.NO.100582 OF 2019
C/W
CRL.P.100583/2019, CRL.P.100584/2019
AND
CRL.P.100585/2019
IN CRL.P.NO.100582/2019
BETWEEN
1. SRI.SANGAMESH RUDRAPPA NIRANI
AGE ABOUT: 40 YEARS,
OCC: BUSINESS,
CHANNAMMA NAGAR,
JAMKHANDI,
BAGALKOTE,
KARNATAKA.
2. GOPAL MANAPPA MADIWAL
AGE ABOUT: 38 YEARS,
OCC: AGRICULTURE,
R/O: CHABBI,
TQ: BAGALKOTE,
KARNATAKA.
3. SANTOSHH IRAPPA CHOORI
AGE ABOUT: 42 YEARS,
OCC: BUSINESS,
:2:
R/O: GADDANKERI,
BAGALKOTE,
KARNATAKA.
... PETITIONERS
(BY SRI.V M SHEELVANT, ADV.)
AND
THE STATE OF KARNATAKA
BY PSI SAVALGI POLICE STATION,
BAGALKOTE,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE PROCEEDINGS AS
AGAINST THE PETITIONERS HEREIN & IN
C.C.NO.1102/2018 (SAVALGI POLICE STATION CRIME
NO.82/2018) PENDING ON THE FILE OF THE PRL. CIVIL
JUDGE & JMFC COURT, JAMKHANDI, FOR THE
OFFENCES P/U/S 171-H OF IPC AND SEC. 127(A), 133 OF
REPRESENTATION OF PEOPLES ACT.
IN CRL.P.NO.100583/2019
BETWEEN
SRI.SANGAMESH RUDRAPPA NIRANI
AGE: ABOUT 40 YEARS,
OCC: BUSINESS,
CHANNAMMA NAGAR,
JAMKHANDI, BAGALKOTE,
:3:
KARNATAKA.
... PETITIONER
(BY SRI.V M SHEELVANT, ADV.)
AND
THE STATE OF KARNATAKA
BY PSI JAMKHANDI TOWN
BAGALKOTE,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE PROCEEDINGS IN
C.C.NO.981/2018 (JAMKHANDI TOWN POLICE STATION
CRIME NO.93/2018) PENDING ON THE FILE OF THE PRL.
CIVIL JUDGE & JMFC COURT, JAMKHANDI, FOR THE
OFFENCES P/U/S 171E OF IPC AND SEC. 123(1)(A)(B) OF
REPRESENTATION OF PEOPLES ACT, IN SO FAR
PETITIONER IS CONCERNED.
IN CRL.P.NO.100584/2019
BETWEEN
1. ASHOK MAHADEV BALOL
AGE ABOUT: 35 YEARS,
OCC: BUSINESS,
R/O: ALAGUR RC,
JAMKHANDI,
BAGALKOTE,
KARNATAKA.
:4:
2. KASHINATH SHRISHAIL JANAGOND
AGE ABOUT: 38 YEARS,
OCC: AGRICULTURE,
R/O: CHIKKALAKI VILLAGE,
JAMKHANDI,
BAGALKOTE,
KARNATAKA.
3. NARASIMGH BABURAO NAYAK
AGE ABOUT: 38 YEARS,
OCC: SOCIAL WORKER,
R/O: SABADE GALLI,
JAMKHANDI,
BAGALKOTE,
KARNATAKA.
... PETITIONERS
(BY SRI.V.M.SHEELVANT, ADV.)
AND
THE STATE OF KARNATAKA
BY PSI JAMKHANDI TOWN
BAGALKOTE,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE PROCEEDINGS AS
AGAINST THE PETITIONERS/ACCUSED NO.1 TO 3 IN
C.C.NO.868/2018 (JAMKHANDI TOWN POLICE STATION
CRIME NO.81/2018) PENDING ON THE FILE OF THE PRL.
CIVIL JUDGE & JMFC COURT, JAMKHANDI FOR THE
OFFENCES P/U/S 171E OF IPC AND SEC. 123(1) (A) (B) OF
REPRESENTATION OF PEOPLES ACT.
:5:
IN CRL.P.NO.100585/2019
BETWEEN
VIJAY BASAVARAJ INGLI
AGE ABOUT: 24 YEARS,
OCC: BUSINESS,
CHANNAMMA NAGAR,
JAMKHANDI, BAGALKOTE,
KARNATAKA.
... PETITIONER
(BY SRI.V.M.SHEELVANT,ADV.)
AND
THE STATE OF KARNATAKA
BY PSI JAMKHANDI TOWN
BAGLAKOTE,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE PROCEEDINGS IN
C.C.NO.505/2018 (JAMKHANDI TOWN POLICE STATION
CRIME NO.95/2018) PENDING ON THE FILE OF THE PRL.
CIVIL JUDGE & JMFC COURT, JAMKHANDI, FOR THE
OFFENCES P/U/S 171-H OF IPC AND SEC. 123(1)(A)(B) OF
REPRESENTATION OF PEOPLES ACT, IN SO FAR
PETITIONERS CONCERNED.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
:6:
ORDER
Crl.P.No.100582/2019 has been filed by petitioner-accused Nos.1 to 3 under Section 482 of Cr.P.C. praying to quash the proceedings in Crime No.82/2018 (CC No.1102/2018) of Savalagi Police Station for the offences punishable under Section 171-H of IPC and Sec.127(A), 133 of representation of peoples Act.
Crl.P.No.100583/2019 has been filed by petitioner-accused under Section 482 of Cr.P.C. praying to quash the proceedings in Crime No.93/2018 (CC No.981/2018) of Jamakhandi Town Police Station for the offences punishable under Section 171E of IPC and Sec.123(1)(A)(B) of Repreentation of Peoples Act.
Crl.P.No.100584/2019 has been filed by petitioners-accused Nos.1 to 3 under Section 482 of Cr.P.C. praying to quash the proceedings in Crime No.81/2018 (CC No.868/2018) of Jamakhandi Town :7: Police Station for the offences punishable under Section 171E of IPC and Sec.123(1)(A)(B) of Representation of Peoples Act.
Crl.P.No.100585/2019 has been filed by petitioner-accused under Section 482 of Cr.P.C. praying to quash the proceedings in Crime No.95/2018 (CC No.505/2018) of Jamakhandi Town Police Station for the offences punishable under Section 171-H of IPC and Sec.123(1)(A)(B) of Representation of Peoples Act.
2. I have heard the learned counsel for the petitioners-accused and learned HCGP for respondent- State.
3. Since, all these matters are arising out of the similar facts and circumstances and the question of law involved is one and the same, in order to avoid the repetition of question of law and other aspects, all these matters have been clubbed together and disposed off with a common order.
:8:
4. It is the contention of the learned counsel for the petitioners-accused in all the above cases that the investigation officer without there being any permission investigated the cases by violating the provisions of Section 155(2) of Cr.P.C. In the absence of permission from the learned Magistrate, very registration of the cases and further investigation and filing the final report is bad in law. It is his further contention that the maximum punishment contemplated under Section 171-H of IPC is one year with fine or with both, itself clearly goes to show that it is non-cognizable offence and it is covered by Part-I and Schedule-I of Cr.P.C. and the proceedings initiated is without authority of law and the same are liable to be quashed. On these grounds, he prays to allow the petitions and quash the proceedings.
5. Per contra, the learned HCGP vehemently argued and submits that the Police officials immediately after noticing the fact that there is a violation of the :9: norms and as such the cognizance was taken and a case has been registered. Police officials are having authority in the case of cognizable offences to register a case and investigate and file the charge sheet. It is her further contention that the matter so which has been urged by the learned counsel for the petitioners-accused is a matter which has to be considered and appreciated only when the charge sheet is filed and trial is held. At this pre-matured stage, it cannot be held that there is no case to the prosecution. On these grounds, she prays to dismiss the petitions.
6. I have carefully and cautiously gone through the submission made by the learned counsel for the parties and perused the records.
7. The only question which has been raised by the learned counsel for the petitioners-accused is that the Investigation Officer has done the investigation by : 10 : violating the Section 155(2) of Cr.P.C. For the purpose of clarity, I quote Section 155, which reads as under:
155. Information as to non- cognizable cases and investigation of such cases.
(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.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
: 11 :(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.
8. On close reading of the above said provision, it clearly prohibits and restrains the Police Officer to investigate non-cognizable offences without prior consent of the concerned Magistrate. It mandates that 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. The Police Officer who receives such credible information he may exercise the powers in respect of the investigation as an officer- in-charge of a Police station in a cognizable case. In this behalf under Section 155 of Cr.P.C. by following the other mandatory provisions and only after obtaining the necessary permission from the learned Magistrate who is having jurisdiction and then he proceed for the investigation. If any such violation is there, then, under : 12 : such circumstances, the investigation so which has been done is going to vitiate the entire investigation. This proposition of law has been held by this Bench in the case of SUNIL VALYAPURE YAMANAPPA V. STATE OF KARNATAKA, 2017(2) AKR 309.
9. It is observed that in the said case, the provisions of Section 155 of Cr.P.C. is mandatory and if it is not followed, then, under such circumstances, the investigation done in this behalf and cognizance taken is nothing but it is abuse of process of law. Even on close readying of Section 155(2) and Section 195 of Cr.P.C., investigation done without prior permission of the Magistrate is considered to be an illegal investigation. Even, as could be seen from 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. If no such procedure is followed, then, under such circumstances, it is also going to vitiate the entire proceedings. In the above said case quoted supra : 13 : at para Nos.7, 8, 10 and 12 it has been observed as under:
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.
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.
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 : 14 : matter, the entire proceedings are vitiated by serious illegality. Therefore, the learned Magistrate ought not to have taken cognizance of the said offence.
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 law. In that light also the proceedings initiated and taking of cognizance would vitiate the entire proceeding.
10. As could be seen from the records, complaint has been registered by the Section Officer and other officials under Section 127(A), 133, 171-H of IPC and FIR has been issued in this particular behalf. The case was registered on 02.05.2018 at about 10.00 p.m. for the alleged offences and the FIR has been sent on 03.05.2018 and FIR has been received at about 5.50 p.m. No documents have been produced by the respondent to show that the prior permission as : 15 : contemplated under Section 155 of Cr.P.C. has been obtained from the jurisdictional Magistrate before taking the cognizance. When there is an absolute bar under Section 155 of Cr.P.C. that the registration of a case is ill-legal and no permission was taken by the police for the purpose of investigation of the said offences, then, the entire proceedings are going to be vitiated by serious illegality. It is further observed that once an illegality perpetuates into the investigation, such investigation is hit by the statutory principle and it cannot be construed as a legal proceedings or legal investigation. In that light, the cognizance taken by the learned Magistrate appears to be illegal. Hence, petitions deserve to be allowed and accordingly, petitions are allowed.
Crl.P.No.100582/2019 filed by petitioner-accused Nos.1 to 3 under Section 482 of Cr.P.C. is allowed and proceedings in Crime No.82/2018 (CC No.1102/2018) of Savalagi Police Station for the offences punishable : 16 : under Section 171-H of IPC and Sec.127(A), 133 of representation of peoples Act, are quashed.
Crl.P.No.100583/2019 filed by petitioner-accused under Section 482 of Cr.P.C. is allowed and proceedings in Crime No.93/2018 (CC No.981/2018) of Jamakhandi Town Police Station for the offences punishable under Section 171E of IPC and Sec.123(1)(A)(B) of Representation of Peoples Act are quashed.
Crl.P.No.100584/2019 filed by petitioners-accused Nos.1 to 3 under Section 482 of Cr.P.C. is allowed and proceedings in Crime No.81/2018 (CC No.868/2018) of Jamakhandi Town Police Station for the offences punishable under Section 171E of IPC and Sec.123(1)(A)(B) of Representation of Peoples Act are quashed.
Crl.P.No.100585/2019 filed by petitioner-accused under Section 482 of Cr.P.C. is allowed and proceedings in Crime No.95/2018 (CC No.505/2018) of Jamakhandi : 17 : Town Police Station for the offences punishable under Section 171-H of IPC and Sec.123 (1)(A)(B) of Representation of Peoples Act are quashed.
Sd/-
JUDGE Hmb