Karnataka High Court
Mohamed Sameem vs State By The Sub-Inspector Of Police on 29 January, 2020
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.773 OF 2011
BETWEEN
MOHAMED SAMEEM
S/O MOHAMED JAFFER
AGED ABOUT 41 YEARS
R/O MALLIKARJUN NAGAR
3RD CROSS, RAGI GUDDA
SHIVAMOGGA ...PETITIONER
(BY SMT.FARAH FATHIMA, ADV.,)
AND
STATE BY THE SUB-INSPECTOR OF POLICE
DODDAPETE POLICE STATION
SHIVAMOGGA ...RESPONDENT
(BY SRI R.D.RENUKARADHYA, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
31.05.2011 PASSED BY THE P.O., FTC-III, SHIVAMOGGA
IN CRL.A.NO.7/11 CONFIRMING THE ORDER DATED
08.12.2010 PASSED BY THE JMFC-.II COURT, SHIMOGA
IN C.C.NO.9076/07.
THIS CRL.RP COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
This revision petition is filed challenging the order of conviction and sentence passed by the court of J.M.F.C.-II, Shimoga (hereinafter referred to as 'trial court' for short) in C.C.No.9076/2007 dated 08.12.2010 and same was upheld by the Fast Track Court-III, Shivamogga (hereinafter referred to as 'first appellate court' for short) in Criminal Appeal No.07/2011 dated 31.05.2011.
2. Heard the learned counsel for the petitioner/accused as well as learned HCGP for the respondent-State.
3. The ranks of the parties before the trial Court is retained for the sake of convenience.
4. The case of the petitioner-accused is that the respondent-Police filed a charge sheet against the accused for the offence punishable under Section 96(c) of the Karnataka Police Act (hereinafter referred to as 'K.P.Act' for short) alleging that when PW-1, Police -3- Constable along with CW-1 was on patrolling duty on 12.10.2007, the accused was said to be found near a shed in front of Kollapuradamma temple hiding in the darkness and when he was apprehended by the Police, he has not disclosed his details and he was moving in a suspicious manner, thereby they apprehended the accused and brought him to the Police Station and registered a case in Crime No.216/2017 for the offence punishable under Section 96(c) of the K.P.Act.
5. After the arrest and production of the accused before the trial court, it appears that on the same day, the Investigating Officer filed the charge sheet before the trial court and the trial court taken cognizance and the accused was released on bail. The accused pleaded not guilty and claimed for trial. The prosecution called upon to adduce evidence. Accordingly, two witnesses were examined as PWs-1 and 2, however, the prosecution has not marked any documents. The statement of the accused under Section 313 of Cr.P.C. has been recorded. He has denied the incriminating -4- circumstances against him in the prosecution evidence. After hearing the arguments, the trial court found the accused guilty and convicted him to undergo simple imprisonment for three days. The same was challenged before the first appellate court and the same was confirmed by the first appellate court. Hence, this revision petition before this court.
6. Learned counsel for the petitioner Smt.Farah Fathima has strenuously contended on the first point that the trial court taking cognizance and filing charge sheet without prior permission of the court is not sustainable in law. As per Section 155(2) of Cr.P.C., for investigating a case for non-cognizable offence, prior sanction of the Magistrate is required. In this case, same was not taken and therefore, conducting investigation and filing charge sheet by taking cognizance is illegal. That apart, it is also contended on the merits that only two witnesses have been examined, no documents are marked. Absolutely there is no evidence to prove that the petitioner was -5- found on the alleged date and time in order to commit any such offence alleged by the prosecution. Absolutely there is no material to prove the guilt of the accused. Therefore, she prayed for discharging the petitioner.
7. Per contra, learned HCGP for the respondent-State has supported the order passed by the trial Court, however, fairly conceded that the permission of the Magistrate is required in order to investigate the matter for a non-cognizable offence as per Section 155(2) of Cr.P.C.
8. Upon hearing the arguments of learned counsel for the petitioner/accused, learned HCGP for the respondent-State and on perusal of the records, the only point that arises for consideration is:
"Whether the trial court committed an error in convicting the petitioner even though there is no permission obtained for investigation as required under Section 155(2) of Cr.P.C.?-6-
9. On perusal of the records, it is not in dispute that the Police have registered a case against the accused for the offence punishable under Section 96(c) of the K.P.Act. The maximum punishment prescribed under the K.P.Act for the said offence is less than three months. As per Schedule II of Cr.P.C., any offences punishable under any other law with less than three years are non-cognizable offences. Admittedly, as per Section 155(2) of Cr.P.C., permission of the Magistrate is required for the purpose of investigation and also for filing charge sheet. But on perusal of the trial court records, admittedly no such permission was obtained by the Investigating Officer for investigation and filing the charge sheet. Even a perusal of the charge sheet and order sheet of the trial court shows that though the accused was arrested on 12.10.2007, he has been produced before the court on 15.10.2007 i.e., after three days of his arrest. The accused is required to be produced before the Magistrate within 24 hours from the time of arrest and shall take custody of the -7- accused if he is required for further investigation with permission of the Magistrate. Therefore, the very detention of the accused is nothing but illegal detention as he was detained in Police Station for more than 24 hours. However, that was not argued by the learned Counsel for the petitioner except on the point of permission of the Magistrate.
10. In support of her case, learned Counsel for the petitioner relies upon a judgment of this court in the case of Babasab Kutbuddin Nadaf and Others - vs- State of Karnataka reported in 2018(4) AKR 417 wherein Co-ordinate Bench of this Court at Dharwad Bench quashed the criminal proceedings for not taking the permission of the Magistrate for investigation as required under Section 155(2) of Cr.P.C. Admittedly, in this case, no such permission was obtained by the Investigating Officer for seeking permission for investigation and filing charge sheet.
11. That apart, on merits, PW-1, who is the Police Constable who has apprehended the accused -8- and reported the matter, has not been cross-examined before the trial court. Even otherwise, the Investigating Officer, who has filed the charge sheet and FIR, has been examined before the court. The report of PW-1 has not been marked before the trial court except two line evidence of the Investigating Officer that he has filed the charge sheet. That itself is not enough to prove the guilt of the accused. Though PW-1 gave the report apprehending the accused, except that, there is no cross-examination on that point. However, the evidence of PWs-1 and 2 without examining any independent witnesses or collecting any other material is not sufficient to prove the guilt of the accused for the alleged offence beyond reasonable doubt. Therefore, the judgment of conviction and sentence passed by the trial court and upheld by the first appellate court are required to be set aside.
12. Accordingly, the criminal revision petition is allowed.
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The judgment of conviction and order of sentence passed by the J.M.F.C.-II, Shimoga in C.C.No.9076/2007 dated 08.12.2010, which was upheld by the Fast Track Court-III, Shivamogga in Criminal Appeal No.07/2011 dated 31.05.2011, is hereby set aside.
The petitioner is acquitted and his bail bonds stand cancelled.
Sd/-
JUDGE KNM/-