Karnataka High Court
Shivagouda Naik vs The State Of Karnataka on 9 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1632, 2019 (4) AKR 726 (2020) 1 KCCR 615, (2020) 1 KCCR 615
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION No.15853/2013
Between:
Shivangouda Naik
S/o Hanmanthraya
Age: 37 years, Occ: Agriculture
R/o Devdurga
Dist: Raichur-584111
... Petitioner
(By Sri A.M.Nagaral, Advocate)
And:
The State of Karnataka
Represented by
Gobbur Police Station
Deodurga, Dist: Raichur
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the FIR dated 05.05.2013 in
Crime No.82/2013 registered by the Gobbur Police
Station, Tq: Deodurga, Dist: Raichur for the offence
punishable under Section 188 of IPC and Section 130 of
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Representation of Peoples Act, 1951 and grant any other
appropriate order.
This petition coming on for Final Hearing this day,
the Court made the following:
ORDER
This petition is filed under Section 482 Cr.P.C. for quashing FIR dated 05.05.2013 in Crime No.82/2013 registered by Gobbur police station, Deodurga, Raichur district for the offences punishable under Section 188 IPC and Section 130 of Representation of Peoples Act.
2. The facts leading to this petition are that on the complaint filed by Damodar Dass, who was deployed at a polling booth Nos.66/67 at Masarkal, Deodurga taluk, the respondent police have registered the case. The allegations are that on 05.05.2013 at about 12.30 hours, the petitioner along with his 100 to 150 supporters and followers entered the premises of polling station of Masarkal booth and told the voters to vote 3 BJP and not to Congress. On the basis of the said complaint, respondent police have registered the case. After registering the case, the police have taken up investigation. But, the charge sheet was not filed. During the pendency of this petition, the police have submitted the charge sheet.
3. The learned counsel appearing for the petitioner has strenuously contended that Section 188 IPC is an offence. But, according to Section 195 of Cr.P.C., the Court cannot take cognizance unless a public servant files a private complaint under Section 200 Cr.P.C., therefore, registration of the case under Section 188 IPC by the police is illegal. Though, facts of this case attract the offences alleged, but the technicalities have to be examined by the Court.
4. Per contra, learned High Court Government Pleader submitted that the complainant has been appointed to look after the Assembly Election. After 4 ascertaining that there was a violation of code of conduct, he lodged a complaint and on the basis of the said complaint, investigation has been taken and charge sheet has been filed. Hence, it cannot be held that such proceedings are illegal.
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, 5 except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) xxx xxx xxx xxx xxx
6. 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 Cr.P.C.
7. On perusal of the complaint averments and other records, there is no complaint in writing by the official before the jurisdiction Magistrate alleging disobedience to the order duly promulgated by the complainant namely public servant. It is only stated that the petitioner came along with his followers and 6 instructed them to vote for BJP and not to Congress.
Thus, the allegations made in the complaint do not attract Section 188 IPC. Since the charge sheet is filed, the petition does not survive for consideration.
8. On the date of registration of the case itself, bar under Section 195 Cr.P.C. was operating as such the police gets no jurisdiction even to register the case under Section 188 IPC. Once the illegality perpetuates into the investigation, such investigation is hit by statutory principles. Then, it cannot be construed as legal proceedings or legal investigation.
9. During the course of arguments, learned counsel for the petitioner submitted that the present petition was filed for quashing FIR. During the pendency of this petition, the charge sheet was filed. Therefore, the charge sheet is required to be quashed which is filed in pursuance of the FIR registered against the petitioner. In support of the said contention, he has 7 relied on a decision of the Hon'ble Apex Court in the case of Anand Kumar Mohatta and Ors. vs. State (Govt. of NCT of Delhi) Department of Home and Ors. reported in AIR 2019 SC 210, wherein it is held as under:
"15. Fist, we would like to deal with the submission of the learned Senior Counsel for the respondent No.2 that once the charge sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat MANU/SC/0719/2011: (2011) 7 SCC
59. In the case of Joseph Salvaraj A. (Supra), this Court while deciding the question whether the High Court could entertain the 482 petition for quashing of FIR, when the charge sheet was filed by the police during the pendency of the 482 petition, observed:
"16. Thus, from the general conspectus of the various Sections under which the appellant is 8 being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge sheet, documents, etc. or not."
16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Code of Criminal Procedure and that this Court is hearing an appeal from an order under Section 482 of Code of Criminal Procedure Section 482 of Code of Criminal Procedure reads as follows:
482. Saving of inherent power of the High Court. - Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may 9 be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of Court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 of Code of Criminal Procedure even when the discharge application is pending with the trial Court. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any Court."
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10. In view of the principles laid down in the aforesaid decision, the present petition is maintainable even after filing of the charge sheet.
11. In support of his contentions, the learned counsel also relied on following decisions:
1. M.S.Ahlawat vs. State of Haryana and Another [(2000) 1 SCC 278]
2. Sachida Nand Singh and Another vs. State of Bihar and Another [(1998) 2 SCC 493]
3. 2018(4) Kar. L.J 695 in the case of Thipparaju vs. State of Karnataka
4. 2018(1) Kar.L.J. 469 in the case of Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub-Inspector, Jeevanbheema Nagar, Police Station, Bengaluru and Another
5. ILR 2018 KAR 369 in the case of Sri F.J.M.Crasta vs. The State of Karnataka by its Secretary, Education Department and Others 11
12. In the case of Thipparaju (supra), this Court observed as under:
"14. The provisions of Section 2(d) of Cr.P.C. defines the 'complaint' which reads as under:
"2(d) "Complaint" means any
allegation
made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
15. Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated under Section 195 of Cr.P.C. being mandatory and there being non-
compliance, the Magistrate has committed illegality in taking cognizance of the offences i.e., without the complaint being made to him in writing by the public servant concerned.
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16. This Court in identical circumstances in the case of Sri Manikanta v. State of Karnataka and Others, in W.P.No.23611 of 2015, dated 16.06.2015, wherein also the police have registered a case in Crime No.167 of 2014 for the offences punishable under Sections 78 and 79 of the Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of 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 and 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, this Court has quashed the proceedings."
13. In the case of Dr.K.P.Gopal Krishna (supra), this Court observed as under:
"In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under 13 Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of 14 work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India."
14. In the case on hand, the records disclose that on the basis of the complaint filed by the Government official who was present at the polling booth, the respondent police have registered the FIR. But, the same is not in accordance with law. Admittedly, the complainant being a public servant has 15 lodged a complaint before the police instead of filing it before the jurisdictional Magistrate. The allegations made in the complaint do not attract the ingredients of Section 130 of Representation of People Act, 1951, as there are no specific allegations about canvassing nearing the polling station. Therefore, initiation of proceedings on the basis of the complaint filed before the police by the election officer is contrary to law and procedure prescribed. Hence, I proceed to pass the following:
ORDER The petition is allowed. The FIR dated 05.05.2013 filed in Crime No.82/2013 by Gobbur police station, Deodurga taluk, Raichur district for the offences punishable under Section 188 IPC and Section 130 of Representation of Peoples Act is quashed.16
In view of disposal of main petition, I.A.1/2019 does not survive for consideration. The same is disposed of.
Sd/-
JUDGE Srt