Karnataka High Court
Smt Deepa Sridhar vs The State Of Karnataka on 20 March, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.2307/2011
BETWEEN:
SMT. DEEPA SRIDHAR
W/O. SHRI K. SRIDHAR,
AGED ABOUT 47 YEARS
WORKING AS THE PRINCIPAL,
SHRI KUMARANS CHILDREN'S HOME,
DODDAKALLASANDRA,
BANGALORE.
... PETITIONER
(BY SRI ARAVIND M. NEGLUR, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY SUBRAMANYAPURA POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
BANGALORE.
2. SHRI MOHAMMAD SOOD MANSOOR
BIN MOHAMMAD MANSOOR,
RESIDING AT NO.1109, 25TH MAIN ROAD,
JAYANAGARA 4TH T BLOCK,
BANGALORE - 560 011.
... RESPONDENTS
(BY SRI VIJAY KUMAR MAJAGE, HCGP FOR R1;
SRI K.V. MOHAN KUMAR, ADV. FOR R2)
2
THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO
CALL FOR THE RECORDS AND QUASH PROCEEDINGS IN
C.C.NO.22796/2009 AGAINST THE PETITIONER HEREIN
PENDING BEFORE THE II ACMM, BANGALORE.
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is facing trial for an offence under Section 352 IPC. This petition was filed to quash the entire proceeding of the case on the ground that a speaking order under sub-Section (2) of Section 155 Cr.P.C. was not passed by the Magistrate and thus, there is legal infirmity.
2. Based on the first information lodged against the petitioner, who is a Principal of an educational institution, alleging slapping of a student, for refusal to play the role of Vishnu, in the school function, Subramanyapura Police registered NC.No.66/2006 and sought permission of the jurisdictional Magistrate to investigate a non-cognizable offence. Permission having been accorded, investigation was conducted and the charge sheet was filed for the offence under Section 352 IPC. 3
3. Mr. Aravind M.Neglur, learned advocate, confined his argument, to the impugned proceeding as being bad, on account of non-speaking order of the Magistrate, i.e., in according "permission" by way of affixture of 'rubber stamp'. Placing reliance on the decision in Shyamlal Sharma vs. King- Emperor, AIR 1949 Allahabad 483, he submitted that, before making an order for investigation, Magistrate ought to have carefully considered all the relevant circumstances that make it desirable, that a non-cognizable offence should be investigated in public interest. He contended that the Magistrate having mechanically permitted investigation, the impugned proceedings are liable to be quashed.
4. Sri Vijay Kumar Majage, learned HCGP, on the other hand, contended that the Court should examine, whether steps taken by the investigating agency and, further by the Court, in proceeding with the matter has caused any prejudice to the accused and, that in the absence of any prejudice, as in the instant case, there cannot be any interference with the trial. He submitted 4 that the petitioner having failed to show any prejudice being caused, on account of permission accorded by the Magistrate by using rubber stamp "permitted", interference with the matter pending, involving trial of a serious offence of slapping by the petitioner, of a muslim boy, on his refusal to play the role of Vishnu, in the school function, is impermissible.
5. The question that arises for consideration is, whether on account of infraction of sub-Section (2) of Section 155 of Cr.P.C., 1973, is it necessary to quash the criminal proceeding, including the filing of charge sheet and the recording of evidence?
6. In Shyamlal Sharma (supra), it has been held as follows:
"12. Section 155, Criminal P.C., occurs in chap. XIV of the Code which deals with investigation of offences. It makes a marked distinction between cognizable and non-cognizable offences. It authorises a police officer in charge of a police station, to investigate a cognizable offence without the order of a Magistrate, but forbids a police officer from investigating a non-cognizable case unless ordered by a Magistrate to do so. Section 155 (2), Criminal P.C., which deals with this matter, reads thus:
"No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class, having power to try such case or commit the same for trial, or of a Presidency Magistrate."5
13. It is evident that it was intended by this piece of legislation that a non-cognizable offence should not be investigated by the police, unless, a criminal Court, possessed of necessary jurisdiction, is moved by a complainant, to take cognizance of the offence or unless a Magistrate, of the description mentioned in the section, considers it desirable that the offence should be investigated. The section occurs in a statute dealing with the administration of criminal justice, which is administered in public interest and not in the interest of any private individual. It could not have been intended, therefore, that a Magistrate should order an investigation arbitrarily or capriciously. On the other hand, it may be legitimately assumed that it was intended that, before making an order for investigation, he would carefully consider all the relevant circumstances that make it desirable that a non- cognizable offence should be investigated in public interest. Reference may be made, in this connection, to the decision of this Court in Emperor v. Mohan Lal A.I.R. (34) 1947 ALL. 149. The requirements of a valid sanction to prosecute were considered in that case. After pointing out that the materials placed before the sanctioning Magistrate contained no reference to the facts of the case and the offence, if any, which was alleged to have been committed, Mulla J. observed:
"Then we find the brief order recorded by Mr. D.G.P. Anthony which does not show at all whether he applied his mind to any set of facts put before him and whether upon doing so he came to the conclusion that the applicant had committed an offence under Section 6 of the Ordinance. The cryptic order recorded by Mr. Anthony makes no reference at all to any offence. In fact it is not even clear in this case whether Mr. Anthony was empowered by the Provincial Government to grant sanction for prosecution for any offence committed under the Ordinance. My attention was drawn by learned counsel for the Crown to a Government notification to the effect that all District Magistrates in the province were authorised by the Provincial Government to sanction prosecution under Section 14 of the Ordinance and it was contended that Mr. Anthony being at the time in the position of an Officiating Superintendent of Dehra Dun must be presumed to have the power contemplated by Section 14. I am not quite clear on this point, but one thing is quite clear to my mind and that is that the sanction for prosecution given in the present case was not a valid sanction as required by the law. As I have already stated the material on the record before me does not show at all whether Mr. Anthony ever applied his mind to any set of facts and having done so arrived at the result that any offence under Section 6 of the Ordinance had been committed by the applicant. His cryptic order does not even mention any offence. Such a sanction, in my opinion, is not a valid sanction and I must, therefore, hold that the prosecution in this case failed to remove the bar placed in its way by Section 14 of the Ordinance and upon that ground also it must fail.6
Mohan Lal's case A.I.R. (34) 1947 ALL. 149, has a material bearing on the question under consideration, although it related to sanction for prosecution, for 'sanction to prosecute' and 'order to investigate' are allied subjects and should be governed by the same principles.
14. In my judgment, the fact whether there are reasonable grounds for believing that an offence has been committed, is a very material circumstance to be taken into account in deciding whether an investigation should be ordered. Unless a Magistrate is satisfied that reasonable grounds exist for believing that an offence has been committed, he would be acting arbitrarily in ordering an investigation to be made. It could not, therefore, have been intended that an investigation might be ordered in the belief that an offence was likely to be committed in future. An expected offence may or may not be committed or after the transaction is over it may remain a matter of doubt whether the offence has been committed or not. On a perusal of a report of the transaction or after hearing an oral account of it, the Magistrate may not be satisfied that an offence has been committed and that an investigation is needed."
7. In the instant case, respondent No.1, on 16.11.2006, sought permission of the II Additional Chief Metropolitan Magistrate, Bengaluru, to investigate a non-cognizable offence. On the requisition, by affixing rubber stamp "permitted", the Magistrate has affixed his signature. In pursuance thereof, on 20.11.2006, case in Crime No.413/2006, for the offence under Section 352 IPC was registered and investigation was undertaken. Final report having been submitted, cognizance was taken and C.C.No.22796/2009 was registered. In response to the process 7 served, the accused having appeared and pleaded not guilty of the accusation, trial has taken place and 12 witnesses have been examined. At that stage, this petition was filed to quash the entire proceedings.
8. Having examined the provision contained in sub- Section (2) of Section 155 and the provisions under the Cr.P.C., dealing with question of irregularity in the matter of investigation, in my opinion, it is unnecessary to interfere with the impugned proceeding. After the Magistrate accorded permission, investigation was undertaken to collect the evidence relating to the commission of offence for establishing the accusation against the offender and the final report having been submitted, cognizance was taken and criminal case was registered against the petitioner, for the offence under Section 352 IPC.
9. Sri Aravind M.Neglur, learned advocate for the petitioner failed to show any prejudice suffered by the petitioner by the steps taken by the investigating agency and further, by the 8 learned Magistrate, in proceeding with the matter. The investigation having shown the commission of the offence under S.352 IPC, charge-sheet was submitted and cognizance was taken and trial has commenced. Hence, it is impermissible to hold that merely on account of the irregularity on the part of the Magistrate, in affixing rubber stamp "permitted", to undertake the investigation, interference with the impugned proceeding, in exercise of the power under Section 482 Cr.P.C. is warranted.
10. The ratio of decision in Shyamlal Sharma (supra), in the said view of the matter and the factual background, has no application, to the instant case.
Consequently, the petition is dismissed and the learned Magistrate shall conclude the trial with expedition.
Sd/-
JUDGE ca