Karnataka High Court
Leo Carneleo vs State Of Karnataka on 16 November, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
W.P. NO. 49656/2017 C/W
W.P. NO. 49658/2017 C/W
W.P. NO. 49659/2017 C/W
W.P. NO. 49660/2017 C/W
W.P. NO. 50562/2017 (GM-RES)
IN W.P. NO. 49656/2017
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI, KARNATAKA ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY BRAHMAVARA P.S
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. MADHU T S
SUB INSPECTOR OF POLICE
BRAHMAVARA POLICE STATION
UDUPI ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
2
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.834/2017 IN THE COURT OF
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.146/2017 REGISTERED BY THE
BRAHMAVARA POLICE AS AGAINST THE PETITIONER
FOR OFFENCES PUNISHABLE UNDER SECTION 78[1],
78[III] OF THE KARNATAKA POLICE ACT, 1963 VIDE
ANNEXURE-A.
******
IN W.P. NO. 49658/2017
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI, KARNATAKA ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY BRAHMAVARA P.S
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. MEENAKSHI
W.P.S.I.
UDUPI TOWN POLICE
UDUPI DISTRICT - 576 102 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.166/2015 IN THE COURT OF
3
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.350/2014 REGISTERED BY THE UDUPI TOWN
POLICE AS AGAINST THE PETITIONER FOR OFFENCES
PUNISHABLE UNDER SECTION 78[1], 78[III] OF THE
KARNATAKA POLICE ACT, 1963 VIDE ANNEXURE-A.
******
IN W.P. NO. 49659/2017
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI, KARNATAKA - 576 102 ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY BRAHMAVARA P.S
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. SRI. MADHU T. S.
SUB INSPECTOR OF POLICE,
UDUPI TOWN POLICE STATION,
UDUPI DISTRICT - 576 102 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.1459/2015 IN THE COURT OF
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.75/2015 REGISTERED BY THE UDUPI TOWN
POLICE AS AGAINST THE PETITIONER FOR OFFENCES
4
PUNISHABLE UNDER SECTION 78[1], 78[III] OF THE
KARNATAKA POLICE ACT, 1963 VIDE ANNEXURE-A.
******
IN W.P. NO. 49660/2017
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI, KARNATAKA - 576 102 ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY MALPE P. S.,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. SAMPATH KUMAR A.,
INSPECTOR OF POLICE,
D.C.I.B.,UDUPI- 576 102 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.662/2017 IN THE COURT OF
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.78/2017 REGISTERED BY THE UDUPI TOWN
POLICE AS AGAINST THE PETITIONER FOR OFFENCES
PUNISHABLE UNDER SECTION 78[1], 78[III] OF THE
KARNATAKA POLICE ACT, 1963 VIDE ANNEXURE-A.
******
5
IN W.P. NO. 50562/2017
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI, KARNATAKA - 576 102 ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY UDUPI TOWN P. S.,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. SRI. MARUTHI G. NAYAK,
SUB-INSPECTOR OF POLICE,
UDUPI TOWN POLICE STATION,
UDUPI DISTRICT - 576 102 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.2518/2015 IN THE COURT OF
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.118/2015 REGISTERED BY THE UDUPI TOWN
POLICE AS AGAINST THE PETITIONER FOR OFFENCES
PUNISHABLE UNDER SECTION 78[1], 78[III] OF THE
KARNATAKA POLICE ACT, 1963 VIDE ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
6
ORDER
The petitioner is common in all the cases and arrayed as Accused No.2, 2, 3, 2 and 4 in Crime Nos.146 of 2017, 350 of 2014, 27 of 2015, 78 of 2017 and 118 of 2015 respectively.
2. These are the petitions filed under Articles 226 and 227 of the Constitution of India and u/s.482 of Cr.P.C. by the accused person praying to quash the proceedings initiated by the respective police stations against the said accused person for the offence punishable under section 78(3) of the Karnataka Police Act, 1963 ('KP Act' for short).
3. Regarding details of the above petitions, the same are furnished in the chart, which are as under:
Sl. Writ Crime No., Charge CC No. and Petition No. and Police sheet the Court No. Station offences and offences
1. 49656/2017 146/2017 78(3) & CC No. of 78(1) of 834/2017 on Brahmavar KP Act the file of I Police Addl. CJ & Station JMFC, Udupi 7
2. 49658/2017 350/2014 78(3) & CC of 78(1) of No.166/2015 Brahmavar KP Act on the file of I Police Addl. CJ & Station JMFC, Udupi
3. 49659/2017 75/2015 of 78(3) & CC Udupi 78(1) of No.1459/2015 Town KP Act on the file of Police Addl. CJ & Station JMFC, Udupi
4. 49660/2017 78/2017 of 78(3) & CC Malpe 78(1) of No.662/2017 Police KP Act on the file of I Station Addl. CJ & JMFC, Udupi
5. 50562/2017 118/2015 78(3) & CC of Udupi 78(1) of No.2518/2015 Town KP Act on the file of I Police Addl. CJ & Station JMFC, Udupi
4. Brief facts of the prosecution case is that, in all the above petitions, the petitioner/accused alleged to have been committed the offences punishable u/ss.78(1) and (3) of the Karnataka Police Act (hereinafter referred to as 'Act' for short) and also the 8 offence punishable u/s.420 of IPC in some of the cases. After investigation, the Investigating Officer submitted charge sheet for the offence punishable under sections 78(1) and 78(3) of the KP Act and dropped Section 420 of IPC. After filing of the charge sheet, the Trial Court took cognizance of the offence and ordered to register a criminal case against the accused.
5. Being aggrieved by the initiation of the Criminal proceedings against them, the petitioner/accused has approached this Court for quashing of the said proceedings and the FIR.
6. Heard the arguments of the learned counsel appearing for the petitioner/accused in respect of all the petitions and the learned High Court Government Pleader appearing for the respondent - State.
7. On perusal of the records, what is contemplated u/s.155(2) of Cr.P.C. is that if a non-cognizable offence is reported to the police, they cannot straight away go to the spot and investigate the matter. They must refer the complaint to the jurisdictional Magistrate and take 9 permission of the jurisdictional Magistrate to investigate the matter.
8. In this regard, it is worth to extract Section 155 of Cr.P.C. 1973, which reads thus:
"155. Information as to non- cognizable cases and investigation of such cases -
(1) When information is given to an Officer in charge of a police station of the commission within the limits of such station of a non cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(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."
Sub-Clause (1) of Section 155 of Cr.P.C. also clears the doubt that when a non-cognizable offence is reported, then the police shall enter or cause to be entered the 10 substance of the information in a book kept by such officer in such form as the State Government may prescribe and refer the informant to the Magistrate. Sub-Clause (2) of Section 155 of Cr.P.C. mandates that
- No police officer shall investigate the non cognizable offence without the order of a Magistrate having power to try such case or commit the case for trial. Therefore, it is mandatory provision that as soon the information is received by the Police Officer himself, which is a credible information, he should refer himself to the Magistrate to take the permission and then investigate the matter.
9. This court had an occasion to deal with Karnataka Police Act in detail particularly with reference to almost all the provisions under the Karnataka Police Act, where those provisions are considered to be non- cognizable offence.
10. In a decision reported in 2015 CRL.LJ. 982 between Moin Basha Kurnooli Vs. State of Karnataka, this Court has categorically held while dealing u/s.155(2) of Cr.P.C. that in non-cognizable offence, particularly under the Karnataka Police Act, 11 Investigation Officer conducted the investigation without obtaining the prior permission of the Magistrate or without referring the complaint to the Magistrate u/s.155(2) of Cr.P.C., such proceedings are vitiated by incurable defects and it amounts to illegality. Section 155(2) of Cr.P.C. is mandatory and not directory. Therefore, the investigation and the report filed by the Police Officers in such cases cannot be legally sustained.
11. In view of the above said decision, this court has to see what the police have done in the above said cases.
12. In all the above said cases, looking to the materials on record, it is the case of the prosecution that the jurisdictional police have received credible information with regard to some people indulged in committing the offences u/s.78(3) of Karnataka Police Act. The Police without taking permission of the Magistrate directly proceeded to the spot with panch witnesses and seized the incriminating articles and also arrested some persons and thereafter come back to the Police Station registered cases and after investigation 12 submitted the reports u/s.173 of Cr.P.C. The above said proceedings before police are straight away hit by Section 155(1) and (2) of Cr.P.C.
13. In this particular case, though the credible information has been received by the police, the police did not go to the Magistrate to take permission, but directly go to the spot and almost investigated the matter and thereafter presented the special report to the Magistrate for the purpose of taking permission, which is not a letter of spirit u/s.155(1) and (2) of Cr.P.C.
14. Under the above said circumstances, I do not find any strong reasons to reject the petitions. The proceedings initiated by the police are hit by serious procedural irregularity which virtually amounts to illegality, incurable in nature and as such, the proceedings are liable to be quashed.
Accordingly, the Petitions are allowed. The proceedings initiated in Crime No.146/2017 of Brahmavar Police Station, Crime No.350/2014 of 13 Brahmavar Police Station, Crime No.75/2015 of Udupi Town Police Station, Crime No.78/2017 of Malpe Police Station and Crime No.118/2015 of Udupi Town Police Station, on the file of the I Addl. Civil Judge & JMFC, Udupi, against the petitioner and all further proceedings are hereby quashed.
Sd/-
JUDGE PL*