Karnataka High Court
Manappa D Vajjal S/O Devayya vs The State Of Karnataka on 21 April, 2016
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF APRIL 2016
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.200486/2016
BETWEEN:
MANAPPA D. VAJJAL
S/O DEVAYYA,
AGE: 50 YEARS, OCC: MLA LINGASUGUR,
R/O FRIENDS COLONY, LINGASUGUR,
TQ: LINGASUGUR, DIST: RAICHUR.
... PETITIONER
(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)
AND:
THE STATE THROUGH
R/BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
... RESPONDENT
(BY SRI P.S.PATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PLEASED TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS PENDING IN C.C.NO. 635/2014 ON THE FILE OF
PRL. JMFC AT LINGASUGUR, FOR THE OFFENCES PUNISHABLE
U/S 171H, 188 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
2
ORDER
Heard Sri Shivanand Pattanshetty, learned counsel for the petitioner and the learned High Court Government Pleader.
2. A person by name C.S.Patil, Flying squad 57/1, Lingasugur was appointed as a leader of flying squad to monitor the legislative assembly election of Lingasugur constituency. It is alleged that on 23.04.2013 when the complainant and his squad members had been to junior college field wherein a public function was arranged by the candidate of JD(S), at that time the accused Nos. 1 and 2 were participating in the election campaign on their motorcycles having JD(S) flags on their motorcycles and on that allegations, it is alleged that they have committed the offences punishable under section 171(H) and 188 of Indian Penal Code. On the basis of above said complaint, the 3 police have investigated the matter and submitted the charge-sheet arraigned this petitioner as accused No.2.
3. Learned Magistrate has taken cognizance and ordered to issue summons to the petitioner and in that context, the entire proceedings were challenged before this Court seeking quashing of the entire criminal case.
4. The learned counsel appearing for the petitioner has strenuously contended that, Section-188 of IPC is an offence covered under Section 195 of Cr.P.C. According to 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., therefore, registration of the case under Section 188 of IPC by the police is illegal. Secondly, the learned counsel contended that, Section 171(H) of IPC is a non- cognizable offence and the police cannot investigate the subject matter without the permission of the 4 jurisdictional Magistrate under Section 155(2) of Cr.P.C. Though facts of this case attract the offences alleged, but the technicalities have to be examined by the Court.
5. As could be seen from the provision of Section 195 of Cr.P.C., it says that, -
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-
1) No Court shall take cognizance-
(a)(i) of any offence punishable under
Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some 5 other public servant to whom he is administratively subordinate;
(b) xxx xxx xxx xxx xxx 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 concerned or some other public servant to whom he is administratively subordinate. In view of the above, the said provision takes away the general power of the Magistrate under Section-190 of Cr.P.C.
6. On perusal of the records, there is no complaint in writing lodged by the 2nd respondent before the jurisdictional Magistrate alleging the offence under Section 188 of IPC. On the other hand, he has submitted a report to the police for investigation. The registration of a case by the police under Section 188 of IPC itself is illegal. On the date of registration of the case itself, the bar under Section 195 of Cr.P.C. was 6 operating and the police gets no jurisdiction even to register the case under Section 188 of IPC. Once an illegality perpetrates into the investigation, such investigation is hit by the statutory principles, then it cannot be construed as a legal proceeding or a legal investigation by the police. Therefore, as rightly contended by the learned counsel, the Magistrate could not have taken cognizance for the offence under Section 188 of IPC without there being a private complaint in writing by the public servant.
7. So far as it relates to Section 171(H) of IPC, the said provision says that,-
"Illegal payments in connection
with an election,- Whoever without the
general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the 7 election of such candidate, shall be punished with fine which may extend to five hundred rupees.
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
8. On a plain reading of the above said section, the punishment imposed is fine that may extend to Rs.500/-. Therefore, the said provision is categorized as non-cognizable offence under the classification of the offences in schedule-II to the Cr.P.C. When the offence is declared as non-cognizable in nature, Section 155(2) of Cr.P.C. bars the police to investigate such matter without the valid permission from the jurisdictional Magistrate. Section 155(2) of Cr.P.C. reads as follows:- 8
"155. Information as to non-cognizable cases and investigation of such cases, -
(1) xxx xxx xxx xxx xxx (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.
xxx xxx xxx xxx xxx
9. It is an absolute bar which says that, no police officer shall investigate a non-cognizable case without the order of the Magistrate. In view of the above said factual and legal aspects, it is clear that registration of crime by the police under Section 188 of IPC is illegal and no permission has been taken by the police for the purpose of investigating the offence under Section 171(H) of Cr.P.C. Therefore, under the above said circumstances, the entire proceedings are vitiated 9 by serious illegality. Therefore, the Magistrate ought not to have taken cognizance of the said offence.
10. In this background, this Court had an occasion to deal the similar matter in Writ Petition No.23611/2015 disposed of on 16.06.2015 between Sri. Manikanta Vs. The State of Karnataka and others, wherein also the police have registered a case in Crime No.167/2014 for the offences punishable under Sections 78 & 79 of Karnataka Police Act, 1963 and also under Section 188 of IPC. The Court coming to the conclusion that the registration of the case under Section 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C., held that the remaining provision under Sections 78 & 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, the Court has quashed such proceedings. 10
11. In view of the above said facts and circumstances and the observation already made by this Court in the above referred writ petition, I am also of the opinion that the proceedings in C.C. No.246/2013 on the file of the Civil Judge (Jr.Dn.) and JMFC, Yadgir, registered against the petitioner for the offences punishable under Section171(H) of Cr.P.C. and 188 of IPC, deserves to be quashed. Otherwise, the same would amount to abuse of process of law. Hence, the following order:-
ORDER The petition is allowed. The entire proceedings in C.C. No.635/2014 on the file on the file of the Principal JMFC, Lingasugur, registered against the petitioner for the offences punishable under Sections 171(H) and 188 of Indian Penal Code, and all further proceedings are hereby quashed.11
In view of disposal of this petition, I.A. No.I/2016 filed for stay does not survive for consideration.
Accordingly, I.A. No.1/2016 dismissed as having become infructuous.
Sd/-
JUDGE *MK