Karnataka High Court
Nandihalli Krishnappa vs The State Of Karnataka on 21 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 21st day of August 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Petition No.101639/2017
Between
Nandihalli Krishnappa
Age: 55 Years, Occ: Agriculture,
R/O: 15th Ward,
M.M. Halli, Hosapete,
Dist: Ballari. ...Petitioner
(By Sri. M. L. Vanti, Advocate)
And
The State of Karnataka,
PSI, Mariyammanahalli Police Station,
Ballari, Represented By SPP,
High Court of Karnataka,
Dharwad Bench, Dharwad. ...Respondent
(By Sri Raja Raghavendra Naik, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., seeking to quash the proceedings against
petitioner initiated in C.C.No.156/2017 (Crime
No.164/2016) pending on the file of Addl. Senior Civil
Judge and JMFC Court, Hosapete, for the offence
punishable under Section 78(3) of the Karnataka Police
Act, 1963.
2
This petition coming on for Admission this day,
the Court, made the following:
ORDER
This is a petition filed by the petitioner/accused No.1 under Section 482 of the Code of Criminal Procedure praying the Court to quash the proceedings initiated against the petitioner in C.C. No.156/2017 (Crime No.164/2016) pending on the file of the Additional Senior Civil Judge and JMFC Court, Hosapete, for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963, to meet the ends of justice.
2. Brief facts of the prosecution case are that on 08.11.2016, the P.S.I., Ballari Mariyammanahalli Police Station, registered a case in Crime No.164/2016 for the offences punishable under Section 78(3) of the Karnataka Police Act and also under Section 420 of the Indian Penal Code against the petitioner and three others. It is stated by the complainant that after having 3 the information that in the house of Nandihalli Krishanappa, some people, in order to cheat the public, were giving assurance that in the matka play they will give Rs.80/- for one rupee and they were involved in playing the said matka game, immediately the complainant secured two panchas and under the leadership of Deputy Superintendent of Police, Kudligi, he, along with other staff members and two panchas named in the complaint, left the police station at 5.00 p.m., went to the said place and they stopped their jeep at some distance. The complainant and other staff went to the new house of Nandihalli Krishnappa and saw that Krishnappa (petitioner herein) and others were inviting the persons, who had come there, to play the matka game and were assuring them that they would give Rs.80/- for one rupee and were collecting money from the public for which they (the petitioner and other persons) were giving matka chits. The police also saw that some persons were involved in calling some other 4 persons, through mobile phones, inviting them to play matka game, assuring them that they would give Rs.80/- for one rupee, and were giving matka numbers. The police having confirmed that the petitioner and other accused persons were cheating the public, all of a sudden, conducted a raid, caught hold of the persons playing matka and when they asked their names, they told that they were, 1) Nandihalli Krishnappa, mother Hanumanthamma, 2) H.Ravi, mother Huligemma, 3) Rafique, S/o of Durugappa, and 4) K.Hanumanthappa, S/o of K.Ramappa. It is also mentioned in the complaint that they seized from the petitioner an amount of Rs.20,612/-, six matka chits, two mobile phones of Samsung Company and two old matka chits. Sofar as others are concerned, whatever the amount, chits and other articles that were seized from them, are mentioned in the complaint in detail. On the basis of the said complaint, a case came to be registered firstly, for the 5 offence under Section 78(3) of the Karntaka Police Act and so also under Section 420 of the Indian Penal Code.
3. The petitioner has challenged the initiation of the proceedings on the grounds as mentioned in grounds Nos.8 to 15 of the said petition.
4. Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also the arguments of the learned High Court Government Pleader for the respondent-State.
5. Counsel for the petitioner made the submission that there is no prima facie case made out by the prosecution; the investigation has been completed and the charge-sheet has been filed only for the offence under Section 78(3) of the Karnataka Police Act and the offence under Section 420 of IPC has been dropped. Counsel further made the submission that the police, in order to overcome the compliance of mandatory 6 requirements of Section 155(2) of Cr.P.C., purposely registered the FIR even for the offence under Section 420 of IPC, but while submitting the charge-sheet, dropped the said offence. Alternatively, learned counsel made the submission that even if at that time, there is a material for the alleged offence under Section 420 of IPC and since it is a cognizable offence, the police ought to have followed the mandatory provisions under Section 154(1) of Cr.P.C., which was also not done in this case. Therefore, in this connection, he drew the attention of this Court to the decision of the Hon'ble Apex Court in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014)2 SCC 1 and submitted that whenever the police receive any information regarding commission of a cognizable offence, immediately, they have to reduce the same in their station diary. He submitted that in this case, no such material is placed by the prosecution. It is also his contention that looking to the materials, it is the prosecution case that they proceeded to 7 the spot, caught hold the petitioner, seized the amount, matka chits, ball pen, cash and then conducted panchanama in the presence of the panch witnesses, and after going to the police station, they registered the FIR and therefore, by the time the FIR came to be registered, more than half of the investigation was completed. Hence, he submitted that looking to all these materials, initiation of the criminal proceedings are only for statistical purpose and they are with a mala fide intention; there is no prima facie case made out by the prosecution. Hence, the learned counsel sought for quashing the proceedings.
6. Per contra, learned High Court Government Pleader made the submission that looking to the prosecution material, the FIR was registered not only for the offence under Section 78(3) of the Karnataka Police Act, but also for the offence under Section 420 of the IPC, which is a cognizable offence, and therefore, the question of compliance of requirements of Section 155(2) of Cr.P.C., to obtain prior permission of the learned Magistrate, does not arise at all. Drawing the attention of this Court to Section 88 of the 8 Karnataka Police Act, learned Government Pleader made the submission that as per the said provision also, the police are authorized to arrest the culprits even without warrant. Therefore, in that view of the matter, he submitted that the offence under Section 78(3) of the Karnataka Police Act is a cognizable offence. Hence, he submitted that mandatory requirements are scrupulously followed by the police; no illegality has been committed by the police; and that this is not a case of quashing the proceedings by invoking Section 482 of Cr.P.C. Therefore, learned Government Pleader submitted to reject the petition.
7. I have perused the grounds urged in the petition, FIR, complaint and also other charge-sheet materials.
8. It is true that at the time of registration of the FIR, the alleged offences were not only under Section 78(3) of the Karnataka Police Act, but also under Section 420 of IPC. In that view of the matter, even if it is taken that, at that time, there was no necessity for the prosecution to obtain prior permission of the learned Magistrate as per Section 155(2) of 9 Cr.P.C., since the offence under Section 420 is a cognizable offence, when the information about commission of cognizable offence was received by the police, the police were under a duty to immediately reduce the same into writing in the station house diary. But, in that connection, the police have not produced any material. The contention of the learned Government Pleader that as per Section 88 of the KP Act, even the offence under Section 78(3) of the Karnataka Police Act is said to be cognizable offence and compliance of requirement of Section 155(2) of Cr.P.C. are not at all required for obtaining prior permission of the Magistrate Court is concerned, a learned Single Judge of this Court, in a batch of criminal petitions in Crl. P. No.100319/2014 and other connected matters, disposed of on 25.07.2014, by referring to the First Schedule, Part II of the Code of Criminal Procedure, making reference in respect of offences under other enactments are concerned, has held that since the offence under Section 78(3) of the Karnataka Police Act is punishable with imprisonment below three years, it is a non- cognizable offence. The said order of the learned Single 10 Judge has become final because nothing has been produced by the prosecution to show that they have challenged the said order before the appropriate forum. Apart from that, this Court had an opportunity to deal with the matters of similar nature, in a batch of criminal petitions in Crl.P. No.3365/2016 and connected matter, disposed of on 07.04.2017, wherein this Court considered all the contentions of both the sides elaborately and ultimately, quashed the proceedings challenged in the said batch of petitions. Considering all the aspects of the matter, I am of the opinion that the petitioner has made out a case to invoke the jurisdiction of Section 482 of Cr.P.C. for quashing the proceedings as against the petitioner herein.
Accordingly, the petition is allowed and the criminal proceedings initiated against the petitioner herein in C.C. No.156/2017 pending on the file of the Additional Senior Civil Judge and JMFC Court, Hosapete, are hereby quashed.
Sd/-
JUDGE Kms