Karnataka High Court
Madan vs The State Of Karnataka on 11 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 2855 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2855 OF 2022
BETWEEN:
1. MADAN
AGED ABOUT 32 YEARS,
SON OF DEVARAJU,
RESIDENT OF N.G.O. COLONY,
NANJANAGUDU TOWN
MYSURU DISTRICT 571301
2. SRI UMESH @ LARA
AGED ABOUT 36 YEARS,
SON OF NAGARAJU,
RESIDENT OF VOKKALAGERI
NANJANAGUDU TOWN
MYSURU DISTRICT 571301
3. SRI RAKESHA @ PACHI
AGED ABOUT 37 YEARS,
SON OF RAJU,
RESIDENT OF NEAR RAKSHASA MANTAP,
SHANTHIVILASA BUILDING,
Digitally signed R.P. ROAD, VOKKALAGERI,
by PADMAVATHI
BK NANJANAGUDU TOWN
Location: HIGH MYSURU DISTRICT 571301
COURT OF
KARNATAKA
4. SRI SAZIL
AGED ABOUT 27 YEARS,
SON OF ANSAR,
RESIDENT OF NEAR EDGA MASZID,
NANJANAGUDU TOWN
MYSURU DISTRICT 571301
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CRL.P No. 2855 of 2022
5. SRI JIM RAVI @ RAVIKUMAR
AGED ABOUT 39 YEARS,
SON OF GOVINDEGOWDA,
RESIDENT OF KAYI ANGADI STREET,
NANJANAGUDU TOWN,
MYSURU DISTRICT 571301
6. SRI NAGESHA
AGED ABOUT 35 YEARS,
SON OF HANUMANTHAPPA,
RESIDING AT NO 81, N.G.O. COLONY,
NANJANAGUDU TOWN
MYSURU DISTRICT 573101.
...PETITIONERS
(BY SRI. RAJASHEKAR K., ADVOCATE)
AND:
! THE STATE OF KARNATAKA
REP BY NANJANAGUDU TOWN POLICE STATION
MYSORE DISTRICT,
REP BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
BANGALORE 560001
2. POLICE OFFICER
Asp SDPO, NANJANGUD
MYSORE DISTRICT 571345
...RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH
THE CRIMINAL PROCEEDINGS IN C.C.NO.1332/2018 PENDING ON
THE FILE OF II ADDITIONAL CIVIL JUDGE AND J.M.F.C.,
NANJANAGUDU IN SO FAR AS PETITIONERS ARE CONCERNED.
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 2855 of 2022
ORDER
Learned counsel appearing for the petitioners submits that as against the other accused in the very same crime, this Court has quashed the proceedings following the judgment rendered by a co-
ordinate Bench. This Court in Crl.P. No: 8170/2021 has held as follows:
"2. The petitioners are before this Court calling in question the proceedings in C.C.No.1332/2018, pending on the file of the II Additional Civil Judge and JMFC, Nanjangudu, registered for the offences punishable under Section 353 of the IPC r/w. Section 34 of IPC and under Sections 79 and 80 of the Karnataka Police Act, 1963, which are non-cognizable at the time when the offences were committed on 19.03.2015, in terms of what is seen in the First Information Report.
3. In the light of the fact that the said offences were non-cognizable, FIR could not have been registered against the petitioners on such offences, without at the outset seeking permission from the hands of the learned Magistrate.
4. It is an admitted fact that in the case at hand, no such permission is sought from the Magistrate to register the FIR or conduct investigation. The issue -4- CRL.P No. 2855 of 2022 stands covered by the judgment rendered by the Co- ordinate Bench of this Court in Crl.P.No.101632/2021 and connected cases, disposed of on 21.9.2021, wherein this Court has held as follows:
"4. The main ground of attack by the petitioner in respective petitions is that the offence alleged is under Section 78(3) of K.P. Act. 1963 and it is a non cognizable offence. Before proceeding to investigate the offence the Police ought to have taken prior permission from the concerned court as required under Section 155(2) of Cr.P.C. Therefore, there is no compliance of Section 155(2) of Cr.P.C. It is further contended that even if the permission from the Magistrate was obtained, it is not in accordance with the guidelines issued in Vaggeppa Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in ILR 2020 KAR 630. Learned HCGP has contended that in some of the cases, the Police have obtained permission of the concerned court and then investigated the matter and filed the charge sheet. He further contended that the Police have taken the care to comply mandatory requirements and then only they have proceeded with the matter and ultimately filed the charge sheet.
5. Co-ordinate Bench of this court in the case of Moin Basha Kurnooli V/s. The State of Karnataka, By Cowl Bazaar Police Station, reported in 2014 (4) KCCR 3355 elaborately considered the provisions of Section 155(2) and 155(3) of Karnataka Police Act and held that offence under Section 78(3) of K.P. Act is a non cognizable offence.
Investigation of cases under Section 78(3) of K.P. Act and all further proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.
-5- CRL.P No. 2855 of 20226. In view of the law laid down in the aforesaid decisions, the Police have taken prior permission from the jurisdictional Magistrate to investigate a non cognizable offence as required under Section 155(2) of Cr.P.C.
7. In crime No.151/2020 of Ranebennur Rural Police station, the FIR came to be registered for the offence under Sections 78(3) of K.P. Act and Section 420 of IPC and charge sheet has been filed only for the offence under Section 78(3) of K.P. Act. Section 420 of IPC is invoked only to get over requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation to attract ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioner or other accused persons named in the FIR. In the said crime No.151/2020 the Police have not obtained permission of the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C. Therefore, the prosecution of the petitioner for the alleged offence is an abuse of process of court.
8. The coordinate Bench of this court in the case of Vaggeppa Gurulinga Jangaligi (supra) after elaborately considering Section 155(1) and (2) of Cr.P.C. and Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 has issued guidelines to be followed by judicial Magistrate. The said guidelines are as under:
i) The Jurisdictional Magistrates shall stop hereafter making endorsement as 'permitted' on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr.P.C.-6- CRL.P No. 2855 of 2022
ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.
iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.
iv) The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.
v) In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to -7- CRL.P No. 2855 of 2022 investigate the case, who shall be other than informant or the complainant.
9. In Crime No.93/2020 of Guttal Police Station the Police gave requisition seeking permission to investigate a non cognizable offence and the learned Magistrate on the same day has issued intimation as granted permission to investigate a non cognizable offence.
10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave requisition and on the same requisition, the learned Magistrate has made endorsement as "permitted to register the case".
11. On looking to the said aspects, it is clear that the learned Magistrate has not followed the guidelines laid down in Vaggeppa case (supra). By looking to the said endorsement, there is no application of judicious mind by the learned Magistrate. Under the circumstances, the proceedings initiated against the petitioner in the following cases cannot sustain in law and accordingly, they are quashed."
5. In the light of the order passed by the Co- ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:
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i) The Criminal Petition is allowed.
ii) The proceedings in C.C.No.1332/2018, pending on the file of the II Additional Civil Judge and JMFC, Nanjanagudu, stand quashed qua the petitioners."
3. In the light of the order passed by this Court concerning the other accused in the very same crime quashing entire proceedings, the petitioners in this case are also entitled to the same relief that is granted.
4. For the aforesaid reasons, the following;
ORDER
i) The Criminal Petition is allowed.
ii) The proceedings in C.C.No.1332/2018 pending on
the file of the II Additional Civil Judge and JMFC, Nanjanagudu, stand quashed qua the petitioners.
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JUDGE mv