Karnataka High Court
Basavaraj S/O Satyappa And Anr vs The State Of Karnataka on 16 June, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200648/2017
Between:
1. Basavaraja S/o Satyappa
Age: Major, Occ: Agriculture
R/o Nehru Colony, Maski
Tq. Lingasugur, Dist. Raichur
2. Panchaxarayya
S/o Mallayya Hiremath
Age: Major, Occ: Agriculture
R/o Bangalore
... Petitioners
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
(Through Hutti P.S., Dist. Raichur)
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the initiation of proceedings in
C.C.No.94/2015 (Hutti P.S. Crime No.106/2013) which is
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now pending on the file of Senior Civil Judge & JMFC Court
at Lingasugur.
This petition coming on for orders this day, the Court
made the following:-
ORDER
This petition is filed by the petitioners/accused Nos.1 and 2 under Section 482 of Cr.P.C., praying to quash the proceedings in Crime No.106/2013 of Hutti Police Station (C.C.No.94/2015 pending on the file of senior Civil Judge and JMFC Court, Lingasugur, for the offences punishable under Sections 171-H, 188 of IPC and also Section 177 of the Motor Vehicles Act (for short 'M.V. Act').
2. Brief facts of the case are that, on 04.05.2013 at about 7.00 p.m., accused No.1 was using the Skoda Car bearing No.KA-03/MQ-7137 which belongs to accused No.2 and tried to canvas on behalf of B.S.R. Congress Party and tried to give the money to the voters. After getting information regarding the same, 3 complainant arrested accused No.1 and seized the money & Car. Later, he filed the complaint alleging that they have violated the code of conduct of Election and filed the complaint for the offences punishable under Sections 171-H, 188 of IPC and also Section 177 of the M.V. Act.
3. I have heard the learned counsel appearing for the petitioners and the learned Additional State Public Prosecutor appearing for the respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that, the proceedings initiated under Sections 171-H, 188 of IPC and also Section 177 of the M.V. Act are illegal. It is also 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 4 Section 188 of IPC by the police is illegal. It is further contended that Section 171-H of IPC and Section 177 of the M.V. Act are non-cognizable offences and the police cannot investigate the subject matter without permission of the jurisdictional Magistrate under Section 155 (2) of Cr.P.C. On these grounds, he prays for allowing the petition by quashing the entire proceedings.
5. On the contrary, the learned Additional State Public Prosecutor appearing for the respondent-State would contend that the respondent-State has appointed the observers and after having come to know that the accused have violated the code of conduct of Election Commission, a complaint was came to be registered against the accused persons. After investigation, the charge sheet has been filed. Now the petitioners cannot contend that the entire proceedings are illegal and as such the proceedings cannot be quashed. He would 5 also contend that there are no good grounds to quash the proceedings. On these grounds, he prays for dismissal of the petition.
6. I have gone through the submissions of the learned counsel for the petitioners and the learned Additional State Public Prosecutor appearing for the respondent-State.
7. It is the contention of the learned counsel for the petitioners that in order to prosecute a case for an offence under Section 188 of IPC, it is mandatory to follow the procedure prescribed under Section 195 of Cr.P.C. There appears to be some force in the said contention of the learned counsel for the petitioner. As per the law laid down by the Apex Court, there is an absolute bar to the Court taking the cognizance of a case registered under Section 188 of IPC, except in the manner provided by Section 195 of Cr.P.C. 6
8. By going through the provisions of Section 195 of Cr.P.C., there is a statutory bar to the Court for taking the cognizance, unless a private complaint in writing is made by a public servant to whom he is administratively subordinate. On perusal of the record, there is no complaint by the Election Squad, who was appointed to look after the Assembly Election of Lingasugur Constituency. Even the records also disclose that the offences alleged against the petitioner under Section 171-H of IPC and Section 177 of the M.V. Act are only on the basis of the report submitted by the police. After investigation and filing of the charge sheet, the Magistrate has taken the cognizance of the said offences. The registration of the case by the police under Section 188 of IPC itself is illegal and on the basis of the same, if a case has been registered, the investigation has been done and a charge sheet has been filed, under such circumstances, the entire 7 proceedings are also hit by Sections 195 and 155(2) of Cr.P.C.
9. As could be seen from Section 155(2) of Cr.P.C., it is an absolute bar, which says 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. In view of the above facts and circumstances, there is a clear violation of the procedure as established by law.
10. Keeping in view the above said facts and circumstances of the case, I feel that the cognizance taken by the Magistrate appears to be illegal and he ought not to have taken the cognizance for the offences punishable under Sections 171-H, 188 of IPC and also Section 177 of the M.V. Act. In that light, the petition deserves to be allowed.
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Accordingly, the petition is allowed and the entire proceedings in Crime No.106/2013 of Hutti Police Station (C.C.No.94/2015 pending on the file of Senior Civil Judge & JMFC Court, Lingasugur) are hereby quashed.
Sd/-
JUDGE LG