Karnataka High Court
Gopalakrishna M N vs The State Of Karnataka on 27 September, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.55 OF 2022
BETWEEN:
GOPALAKRISHNA M.N.,
AGED ABOUT 50 YEARS
S/O NANJAPPA
R/AT NO.50, HESARAGHATTA HOBLI
MUTHUGADA HALLI
SHIVAKOTE, BENGALURU - 560 089.
... PETITIONER
(BY SRI PRABHUGOUD B.TUMBIGI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
RAJANAKUNTE POLICE
BENGALURU -560 064
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU - 560 001.
2. S.R.VISHWANATH
AGED ABOUT 58 YEARS,
S/O RAMAIAH
SINGANAYAKANAHALLI VILLAGE
YELAHANAKA HOBLI
YELAHANKA TALUK
BENGALURU - 560 064.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
2
SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SRI ARUN G., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT IN
CR.NO.215/2021 REGISTERED BY THE RAJANUKUNTE POLICE
STATION, BENGALURU FOR THE OFFENCE P/U/S.120-B, 506 OF IPC
ON THE FILES OF II ADDITIONAL CHIEF JUDICIAL MAGISTRATE
BENGALURU RURAL.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question proceedings in Crime No.215 of 2021 registered for offences punishable under Sections 120B and 506 of the Indian Penal Code and pending before the II Additional Chief Judicial Magistrate, Bengaluru Rural.
2. Heard Shri Prabhugoud B.Tumbigi, learned counsel appearing for the petitioner, Smt. K.P. Yashodha, learned High Court Government Pleader appearing for respondent No.1 and Sri Sandesh J.Chouta, learned senior counsel appearing for respondent No.2.
33. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The 2nd respondent is the complainant, a sitting Member of the Karnataka Legislative Assembly ('MLA' for short). A complaint comes to be registered by the 2nd respondent on 1-12-2021 alleging that certain people including the petitioner are in an act of conspiracy to eliminate the petitioner. The narration in the complaint is that the petitioner has hatched a conspiracy that the complainant should be attacked and in two blows he should be finished. Based upon this allegation, the said crime comes to be registered in Crime No.215 of 2021. The registration of crime against the petitioner is what drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend with vehemence that the petitioner is also a popular public personality in the area in which the 2nd respondent is now a sitting MLA. The petitioner has also lost the election contested against the present sitting MLA on two occasions. This political rivalry is what has driven the complainant to register the complaint on frivolous 4 grounds. The grounds so set in the complaint are all so imaginary that they are inherently improbable. He would submit that the offences alleged are non-cognizable and for a non-cognizable offence permission of the learned Magistrate under sub-Section (2) of Section 155 of the Cr.P.C. is necessary and the informant only has to go and seek permission of the learned Magistrate for registration of the crime. In the case at hand, a complete go bye is given to the procedure and, therefore, seeks annulment of entire proceedings.
5. On the other hand, the learned senior counsel Sri Sandesh J.Chouta appearing for the 2nd respondent/complainant would refute the submissions to contend that the pen drive so received by the complainant depicted the life threat to him and once life threat is depicted, it would be natural that any citizen would approach the Police. It is, therefore, the alleged crime is registered. The crime is not even investigated into and as such, the petition should not be entertained at this juncture. Insofar as the submission with regard to the permission of the learned Magistrate is concerned, the learned senior counsel would submit that the learned Magistrate 5 has applied his mind to the material and has accorded his permission. He would clarify that it is not the informant only has to approach the learned Magistrate for registration of the crime but the Police also can get the permission and initiate registration of crime. The learned senior counsel would seek to place reliance on the judgment of the Apex Court in the case of STATE OF GUJARAT v. GIRISH RADHAKRISHNAN VARDE - (2014)3 SCC 659 to buttress his submissions.
6. In reply to the said submissions, the learned counsel for the petitioner would place reliance on the judgment of the Co-
ordinate Bench of this Court in the case of ANAND SINGH v.
STATE OF KARNATAKA - CRIMINAL PETITON NO.3082/2017 decided on 22-10-2008 and another Co-ordinate bench judgment of this Court in VAGGEPPA GURULINGA JANGALIGI (JANGALAGI) v. THE STATE OF KARNATAKA THROUGH PSI, KAGWAD POLICE STATION, BELAGAVI - ILR 2020 KAR 630.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
68. The facts at present lay in a very narrow compass. The registration of crime is triggered from registration of complaint and, therefore, the complaint is necessary to be noticed. It reads as follows:
¢£ÁAPÀ: 01.12.2021 UÉ, ¥Éưøï E£ïì¥ÉPÀÖgï §ÄzÀĪÁgÀ gÁeÁ£ÀÄPÀÄAmÉ ¥Éưøï oÁuÉ, gÁeÁ£ÀÄPÀÄAmÉ.
EAzÀ
---.---«±Àé£ÁxÀ ±Á¸ÀPÀgÀÄ, AiÀÄ®ºÀAPÀ «zsÁ£À ¸À¨Ás PÉëÃvÀæ ¹AUÀ£ÁAiÀÄPÀ£ÀºÀ½î.
¨ÉA-560 064.
«µÀAiÀÄ: ªÀÄÄvÀÛUÀzÀºÀ½î UÉÆÃ¥Á®PÀȵÀÚ ªÀÄvÀÄÛ EvÀgÀjAzÀ £À£Àß «gÀÄzÀÞ PÉÆ¯É ¸ÀAZÀÄ, ªÀiÁ£ÀºÁ¤, C£ÁªÀ±ÀåPÀ «µÀAiÀÄUÀ¼À°è C¥ÀgÁzsÀ ¥ÀæPÀgÀtUÀ¼À°è ¹®ÄQ¸ÀĪÀ ¥ÀæAiÀÄvÀß £ÀqÉzÀÄ fêÀ ¨sÀAiÀÄ GAlÄ ªÀÄrgÀĪÀ §UÉÎ.
ªÉÄîÌAqÀ zÀÆgÀzÁgÀ£ÁzÀ £Á£ÀÄ AiÀÄ®ºÀAPÀ PÉëÃvÀæzÀ ºÁ° ±Á¸ÀPÀ£ÁVzÀÄÝ, gÁeÁ£ÀÄPÀÄAmÉ oÁuÉ ªÁå¦ÛAiÀÄ ¹AUÀ£ÁAiÀÄPÀ£ÀºÀ½î ªÁ¹AiÀiÁVgÀÄvÉÛãÉ.
¤£Éß CAzÀgÉ 30.11.2021 gÀAzÀÄ £À£ÀUÉ §AzÀ ªÀiÁ»wAiÀÄAvÉ ªÀÄÄvÀÛUÀzÀºÀ½î UÉÆÃ¥Á®PÀȵÀÚ ªÀÄvÀÄÛ EvÀgÀgÀÄ zÉêÀgÁd C°AiÀiÁ¸ï PÀļÀî zÉêÀgÁd FvÀ£À PÀqɬÄAzÀ £Á£ÀÄ ¸ÀvÀvÀªÁV PÉëÃvÀæzÀ ±Á¸ÀPÀ£ÀV d£À ¸ÉÃªÉ ªÀiÁqÀÄwÛgÀĪÀÅzÀ£ÀÄß ¸À»¸À®UÀzÉ zÉéõÀ, C¸ÀÆAiÉÄ ªÀiÁvÀìAiÀÄðUÀ½AzÀ £À£ÀߣÀÄß zÉêÀgÁd @ PÀļÀî zÉêÀgÁd JA§ ClÆÖgÀÄ ªÁ¹ PÀqɬÄAzÀ AiÀiÁªÀÅzÉÆà DAzÀæzÀªÀgÀ vÀAqÀ¢AzÀ PÉÆ¯É ªÀiÁr¸À®Ä ¸ÀAZÀÄ gÀƦ¹gÀĪÀÅzÀÄ ºÁUÉAiÉÄà F »AzÉ AiÀÄ®ºÀAPÀzÀ°è PÀqÀ§UÉgÉ ¹Ã£À @ ²æäªÁ¸À FvÀ£À PÉÆ¯É ¸ÀAZÀÄ ¥ÀæPÀgÀtzÀ°è £À£Àß ªÀÄvÀÄÛ £À£Àß ºÀ®ªÁgÀÄ ¸ÉßûvÀgÀÄ E®è¢zÀÝgÀÄ ¸ÀºÀ DvÀ£À PÀqɬÄAzÀ ºÉýPÉ ¤ÃqÀĪÀ ¥ÀæAiÀÄvÀß ªÀiÁr¹ C£ÁªÀ±ÀåPÀªÁV C¥ÀgÁzsÀ ¥ÀæPÀgÀtzÀ°è ¹®ÄQ¸À®Ä AiÀÄwß¹ ±Á¸ÀPÀ£ÁzÀ £À£Àß ªÀiÁ£ÀºÁ¤ ªÀiÁrgÀÄvÁÛgÉ. F »AzÉ £À£Àß ªÉÄÃ¯É «ZÁgÀuÉAiÀiÁzÀ PÉ®ªÀÅ ¥ÀæPÀgÀtUÀ¼À°èAiÀÄÆ FvÀ£À PÉʪÁqÀ«gÀĪÀ §UÉÎ wêÀæ C£ÀĪÀiÁ£À«gÀÄvÀÛzÉ.7
«±ÉõÀªÁV £Á£ÀÄ £À£Àß vÉÆÃlPÉÌ MAnAiÀiÁV ºÉÆÃV §gÀĪÀ ªÉÃ¼É £Á£ÀÄ MAnAiÀiÁV ªÁQAUï ªÀiÁqÀĪÀ ªÉüÉ, PÁAiÀÄðPÀæªÀÄUÀ½UÉ ºÉÆÃV §gÀĪÀ ªÉÃ¼É £À£Àß ªÉÄÃ¯É ºÀ¯Éè ªÀiÁr JgÀqÉà KnUÉ ºÉÆqÉAiÀĨÉÃPÀÄ ªÀÄvÀÄÛ ¥ÀÆwðAiÀiÁV ªÀÄÄV¸À¨ÉÃPÀÄ JA§ DvÀ£À zÉéõÀ ªÀÄ£ÉÆèsÁªÀ ªÀÄvÀÄÛ ¸ÀAaUÉ ¥ÀÆgÀPÀªÁV £À£Àß ªÉÄÃ¯É ºÀ¯Éè ªÀiÁqÀ®Ä ¥ÀæAiÀÄvÀߪÀÅ ¸ÀºÀ ¸ÁªÀðd¤PÀgÀ UÀªÀÄ£ÀPÉÌ §A¢gÀÄvÀÛzÉ. FUÉ £ÉÆÃrzÀgÉ DvÀ£ÀÄ ZÀÄ£ÁªÀuÉ zÀȶ֬ÄAzÀ £À£ßÀ ªÀiÁ£ÀºÁ¤ ªÀiÁqÀĪÀ, PÉÆ¯É ªÀiÁqÀ®Ä ¸ÀAZÀÄ ªÀÄvÀÄÛ ¸ÀÄ¥Àj ¤ÃqÀÄgÀĪÀÅzÀÄ PÀAqÀÄ §A¢zÀÄÝ, EzÀjAzÀ £À£Àß PÉëÃvÀæzÀ d£ÀvÉ DvÀAPÀPÉÌ M¼ÀUÁVzÀÄÝ, EzÀgÀ §UÉÎ G£ÀßvÀ ªÀÄlÖzÀ «ZÁgÀuÉ ªÀiÁr ¸ÀÆPÀÛ PÁ£ÀÆ£ÀÄ PÀæªÀÄ ªÀ»¸À®Ä PÉÆÃjzÉ."
The gist of the complaint was that the petitioner and one Kulla Devaraj on account of the complainant winning in the constituency as a member of the Legislative Assembly have hatched such conspiracy to do away with the life of the complainant. The 2nd respondent/complainant has filed his objections that in all television and social media, the clippings of the petitioner and accused No.2 having conversation of conspiracy is telecasted. After all these events on 1-12-2021 the complaint comes to be registered.
9. The permission of the learned Magistrate is sought as required under Section 155(2) of the Cr.P.C. and then an FIR is registered in Crime No.215 of 2011 for offences punishable under Sections 120B and 506 of the IPC. Later, the Police after investigation, file a requisition before the Learned Magistrate to include Section 115 of the IPC. It is at that juncture the present petition is preferred and this Court by its order dated 07-01-2022 8 has interjected the investigation. Therefore, there has been no further investigation that has taken place in the case at hand.
10. It is necessary to notice the provisions that are invoked or sought to be invoked in the case at hand. Section 120B of the IPC reads as follows:
"120-B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
Section 506 of the IPC reads as follows:
"506. Punishment for criminal intimidation.-- Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
if threat be to cause death or grievous hurt, etc.-- and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with 9 imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
Admittedly, the two provisions that are sought to be invoked are non-cognizable. The Police, after investigation, file a requisition to include offence punishable under Section 115 of the IPC which deals with abetment of offence punishable with death or imprisonment for life. Section 115 of the IPC reads as follows:
"115. Abetment of offence punishable with death or imprisonment for life--if offence not committed.-- Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if act causing harm be done in consequence.--and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine."
Section 115 of the IPC is cognizable. Therefore, the issue now boils down as to whether further proceedings should be permitted to be continued in the light of the requisition so made for the offence punishable under Section 115 of the IPC.
1011. The contention of the learned counsel appearing for the petitioner is that, it is only the informant, who has to approach the learned Magistrate seeking permission for registration of FIR and not the Police, sounds acceptance, as this is in tune with the law that is laid down by this Court in the case of ANAND SINGH v.
STATE OF KARNATAKA1 (supra) wherein the Co-ordinate Bench of this Court has held as follows:
"6. A plain reading of sub-Section (1) of Section 155 CrPC makes it abundantly clear that the information over commission of a non-cognizable offence to the jurisdictional Police Station, requires the officer to 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 that behalf, and refer the informant to the Magistrate. In other words, if the information did not disclose the commission of a cognizable offence, the Police Officer having no power to investigate into the matter, is duty bound to refer the informant to approach Magistrate, in the matter of permission to investigate into the non-cognizable offence. It is for the informant to seek the orders of the Magistrate. In any event, sub- Section (1) of Section 115 CrPC does not empower the Police Officer to make a request to the Magistrate to permit investigation into a non-cognizable offence".
(Emphasis supplied) The learned senior counsel representing the 2nd respondent would seek to distinguish the aforesaid judgment rendered by the Co-
ordinate Bench of this Court, on the strength of a subsequent 1 CRIMINAL PETITON NO.3082/2017 decided on 22-10-2008 11 judgment rendered by the Apex Court, which according to him, dilutes the law laid down by this Court. The Apex Court has in the case of STATE OF GUJARAT v. GIRISH RADHAKRISHNAN VARDE2 (supra) has held as follows:
"12. Section 190(1) CrPC contains the provision for cognizance of offences by the Magistrates and it provides three ways by which such cognizance can be taken which are reproduced hereunder:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report in writing of such facts--that is, facts constituting the offence--made by any police officer;
(c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed.
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's court on a police report. The scheme underlying CrPC clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a police station. If the offence complained of is a non-cognizable one, the police officer can either direct the complainant 2 (2014)3 SCC 659 12 to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus, two agencies have been set up for taking offences to the court.
(Emphasis supplied) The Apex Court while interpreting Section 190(1) of the CrPC makes a reference that if it is a non-cognizable offence the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate. This judgment would not become applicable to the facts of the case, as it was not interpreting Section 155 of the CrPC. Section 155(2) of the Cr.P.C.
bears consideration at the hands of this Court in the case of ANAND SINGH and the statute itself directs that the officer in-
charge of the police Station, on receiving the complaint alleging offences which are non-cognizable, shall refer the informant to the learned Magistrate. It is not that he can seek permission for himself. If it is the act of the officer in-charge of the Police Station going before the Magistrate and seeking permission to himself, it would run counter to the statute. Therefore, I deem it appropriate to follow the judgment rendered by the Co-ordinate Bench (supra).
1312. The other submission of the learned counsel appearing for the petitioner is that the order permitting registration of crime by the learned Magistrate does not bear application of mind. The order passed by the learned Magistrate reads as follows:
"The PSI of Rajanakunte Police Station has submitted the requisition for seeking permission to investigate the matter by registering crime in respect of non-cognizable offences punishable under Section 120B, 506 of IPC Act. The substance have been entered in the book kept for the said purpose.
The averments made in the requisition disclose the commission of non-cognizable offence. Hence,. Acting under section 155(2) of CrPC permission is granted to investigate the case by registering crime."
(Emphasis added) All that the learned Magistrate notices is that the PSI of Rajanakunte Police Station has submitted a requisition seeking permission to investigate the matter by registering a crime in respect of a non-cognizable offence. The substance has been entered into the book kept for the purpose and therefore, permission is granted. The afore-quoted order, in the considered view of this Court, does not bear application of mind.
13. Therefore, the case at hand is shrouded with two infirmities - one it is not the informant who has been sent to the 14 learned Magistrate to seek permission but the Police themselves make a requisition seeking permission. This runs counter to Section 155 of the Cr.P.C. The other infirmity is with regard to application of mind. Reasons, albeit brief, have to be set forth in an order when one sets the investigation into motion, particularly, the learned Magistrate and those reasons should bear reference to minimum facts of the case before him. Permitting investigation by use of the words "perused permitted" or as ordered by the learned Magistrate would all become orders which bear no application of mind.
14. A Co-ordinate Bench of this Court, considering these issues, has in elaboration, held in the case of VAGGEPPA GURULINGA JANGALIGI (JANGALAGI) v. THE STATE OF KARNATAKA3 as follows:
"3. The petitioner has stated that the complaint is misconceived, and the alleged offence is non-cognizable as per the Code of Criminal Procedure, 1973. Therefore, the Police have no authority to investigate the crime. It is further submitted that the Police have not complied with mandatory requirement of Section 155 of Cr. P.C. When the officer-in- charge of the Police Station received information regarding commission of non-cognizable offence, he shall enter the same in a book to be maintained by the said officer and refer the 3 ILR 2020 KAR 630 15 informant to he Magistrate. Further, sub-Section (2) of Section 155 of Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case or commit such case for trial. The petitioner has further stated that there is no iota of evidence that the above said mandatory requirement are complied with. There is no speaking order by the jurisdictional Magistrate permitting the Police to take up investigation. Therefore, the proceedings initiated against the petitioner who is arrayed as accused No. 4 in the charge sheet are liable to be quashed.
... ... ...
5. The Learned Counsel for the petitioner submitted that the offence punishable under Section 87 of the K.P. Act is non- cognizable one and therefore, as per Section 155(1) of Cr. P.C., the informant PSI ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed the order, permitting the concerned Police to take up investigation of the case and these are the mandatory requirements of the provisions under Section 155(1) and 155(2) of Cr. P.C. which are not followed in the present case. Therefore, the proceedings initiated against the petitioner are vitiated and are liable to be quashed.
... ... ...
8. It is not in dispute that the alleged offence punishable under Section 87 of the K.P. Act is a non- cognizable offence. When the report is received by the SHO of Police Station in respect of commission of non- cognizable offence, the SHO has to follow the mandatory procedure prescribed under Section 155(1) and 155(2) of Cr. P.C. Therefore, it is necessary to refer the said provision. Section 155 of Cr. P.C., which deal with the procedure for investigation and for taking cognizance of non-cognizable offence reads as follows:--16
"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.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."
9. Therefore, when the SHO of the Police Station receives a report regarding commission of non-cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr. P.C. Thereafter, the jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of Section 155(2) of Cr. P.C., stated supra. Unless, the Police Officer is permitted by an order of the jurisdictional Magistrate to investigate the non- cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.
1710. This Court in the case of Praveen Basavanneppa Shivalli v. State of Karnataka and Others MANU/KA/1443/2016 [(2017) 1 AIR Kant R 461] considered the requirement of Section 155(1) and (2) of Cr. P.C., where case relates to a non-cognizable offence, in para 10 of the judgment this Court has observed as follows:
"10. S. 155 of Cr. P.C. deals with the procedure to be adopted in respect of the information received by the Officer in charge of a Police Station relating to commission of non-cognizable offence. As per sub-section (I) of S. 155 Cr. P.C. when an Officer in charge of Police Station receives the information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be maintained by such Officer in the prescribed form 'and refer the informant to the Magistrate'. Sub-section (2) of S. 155 Cr. P.C. makes it clear, that no Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to tty such case or commit case for trial. Sub-section(1) of S. 155 Cr. P.C., which casts a duty on the station house officer who receives information as to the commission of non-cognizable offence to enter or cause to be entered the information in the prescribed book and refer the informant to the Magistrate, does not enable the SHO himself to approach the Magistrate and seek orders. The provision makes it clear, that the SHO shall refer the informant to the Magistrate, thereby, making clear that it is for the informant to seek the orders of jurisdictional Magistrate for issue of direction to the police for investigation of the case. The Magistrate, on being approached by the informant, if orders investigation, the SHO concerned would get jurisdiction to register the crime, investigate the matter and not otherwise."
11. This Court in the case of Mukkatira Anitha Machaiah v. State of Karnataka and Another in Crl.P. 18 5934/2009 decided on 20/8/2013 considered the scope of Section 155(1) and (2) of Cr. P.C., has observed in para 5 as follows:--
"5. Section 155 of Cr. P.C. deals with the procedure to be adopted in respect of an information received by the officer in charge of a police station relating to commission of a non-cognizable offence. According to sub-section (1) of Section 155 of Cr. P.C., when an officer in charge of the Police Station receives an information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. According to sub-section (2) of Section 155 of Cr. P.C., no police officer shall investigate a non- cognizable case without a order of a Magistrate having power to try such case or commit the case for trial. Thus reading of sub-section (1) of Section 155 of Cr. P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is only to enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter."
12. This Court in paragraph 6 has further has observed as follows:--
"In the case on hand, as noticed supra, upon receipt of the report submitted by the 2nd respondent, the SHO of Virajpet Police Station registered the same as NCR and submitted a requisition to the jurisdictional Magistrate seeking permission to investigate the matter, based on which, the Magistrate granted permission. Thus, the procedure adopted by the SHO is without the 19 authority of law and the same is not contemplated under Section 155 of Cr. P.C. Therefore, the permission granted by the Magistrate on such requisition is also without any basis, as such, the investigation carried on by the police and the charge sheet filed thereon are without the authority of law. Therefore, the prosecution launched against the petitioner is liable to be quashed. However, it is open to Respondent No. 2, who is the informant before the police to approach the jurisdictional Magistrate and seek necessary orders as contemplated under Section 155 of Cr. P.C."
13. Therefore, the SHO of the Police Station has no authority of law unless the jurisdictional magistrate permits the Police Officer for investigation of the non- cognizable offence.
14. This Court in the case of Padubidri Members Lounge v. Director General and Inspector General of Police in W.P. Nos. 42073-75/2018 Decided on 3/10/2012, considered the mandatory provision of Section 155(1) and (2) of CrP.C., where the charge sheet was filed for the offence under Section 87 of the K.P. Act. In paragraphs 6 and 7, this Court has held as follows:--
"6. As per the above provisions, when an Officer-in-charge of the police station receives an information with regard to commission of non- cognizable offence/s, i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.20
7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr. P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr. P.C., or obtained necessary order as envisaged under Section 155(2) of Cr. P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr. P.C."
15. Again this Court, in the case of Veeranagouda and others vs. The State of Karnataka in Crl.P. No. 102021/2018 decided on 11/1/2019, considered the requirements of Section 155(1) and (2) of Cr. P.C., and has held in para 9 as follows:--
"The Counsel appearing for the petitioner' also brought to the notice of this Court that when a requisition was given to the Magistrate, only an endorsement is made as permitted to investigate as per section 155 of Cr. P.C. on the very request letter itself and the same is not in accordance with law. The concerned Magistrate did not apply his mind and passed any considered order. On the requisition only an endorsement is made and the same is not the permission in the eye of law. Therefore in reality it is not permission at all and the prosecution has not satisfied the Court that mandatory requirements are complied before proceeding with the investigation in the matter. Legal aspect has not been complied and the same has been over looked by the Court below while ordering for registering the criminal case against the petitioners' herein. Looking to these materials it goes to show that it is the abuse of process of Court to continue the proceedings. Not only it is wasting of valuable time and energy of the Court. Even if the trial is proceeded with, it is a futile exercise in the matter."21
16. Therefore, this Court time and again has quashed the proceedings initiated against the accused persons in respect of non-cognizable offence on the ground that the mandatory provisions of Section 155(1) and (2) of Cr. P.C., are not complied with. However, this Court has not laid down any guidelines for the Learned Magistrates as to how and in what manner they have to pass the Order under Section 155(2) of Cr. P.C., when a requisition is submitted to the Learned Magistrate seeking permission to investigate the non-cognizable offence.
17. In the cases referred above, invariably the Learned Magistrates have passed the orders on the requisition submitted by the SHO of the Police Station by writing a word "permitted" or "permitted to investigate". This Court has held that making such an endorsement on the requisition submitted by the Police is not passing orders and there is no application of judicious mind in permitting the Police Officer to take up the investigation for non-cognizable offence.
18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our Judicial Magistrates as to how they have to approach and pass orders when requisition is submitted by the SHO of Police Station seeking permission to investigate into the non-cognizable offence. The provision of Section 155(1) and (2) of Cr. P.C., referred above make it very much clear that the SHO of the Police Station on receiving the information regarding the commission of non- cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155(1) of Cr. P.C. Once the requisition is submitted to the Magistrate, it is for the Jurisdictional Magistrate to consider the requisition submitted by the SHO of Police Station and pass necessary 22 order either permitting the Police Officer to take up the investigation or reject the requisition. Section 155(2) of Cr. P.C., specifically provides that no Police Officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an "order" by the Magistrate permitting the Police Officer to investigate the non- cognizable offence is an important factor. The word without the order of the Magistrate appearing in sub- Section (2) of Section 155 of Cr. P.C., makes it clear that the Magistrate has to pass an 'order' which means supported by reasons. On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word 'permitted' on the requisition submitted by the Police itself which does not satisfy the requirement of Section 155(2) of Cr. P.C., Such an endorsement cannot be equated with the word 'Order'.
19. Chapter V Rule 1 of Karnataka Criminal Rules of Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:--
"INVESTIGATION AND PROSECUTION *1. Report under Section 154.--(1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.
2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted."23
20. Therefore, under Rule 1, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the Police Officer or the Police Officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr. P.C., and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.
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.
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.
24v) 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 investigate the case, who shall be other than informant or the complainant.
21. Coming to the case on hand, the SHO of Kagwad Police Station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P. Act which is a non-cognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:--
"Perused materials. Permitted Sd/-"
22. Therefore, absolutely there is no application of judicious mind by the Learned Magistrate before permitting the Police to investigate the non-cognizable offence much less an order passed by the Learned Magistrate.
23. Under these circumstances, the proceedings initiated against the petitioner in CC No. 3397/2019 pending on the file of the IV Additional Civil Judge and JMFC, Athani, are liable to be quashed so far as the petitioner is concerned. Accordingly, the petition filed under Section 482 of Cr. P.C., is allowed and the said proceedings are hereby quashed as against the petitioner is concerned."
(Emphasis supplied) Though the Co-ordinate Bench was considering permission granted by use of words "Perused materials. Permitted", the case at hand is only the glorified version of the words "Perused materials.
25Permitted". This can by no means be termed to be a permission that is granted after application of judicious mind. Therefore, on both the counts - that the informant has not approached the learned Magistrate and the learned Magistrate has not applied his mind permitting registration of crime, the very registration of crime gets vitiated.
15. It is besides the point that the Police wanted to incorporate Section 115 of the IPC. As the very registration of the crime on the strength of which the police now want to incorporate Section 115 of the IPC is itself fundamentally flawed, on the aforesaid two counts, the subsequent act becomes contrary to law.
If the investigation or any proceeding is permitted to continue, it would run counter to Section 155 of the CrPC and its interpretation by the Co-ordinate Benches of this Court (supra).
16. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal Petition is allowed.26
(ii) The registration of crime in Crime No.215 of 2021 before the Rajanukunte Police Station and pending before the II Additional Chief Judicial Magistrate, Bengaluru Rural stands quashed.
(iii) Liberty is reserved to the complainant to initiate such proceedings, in accordance with law, if need arises.
Consequently, I.A.No.1/2022 stands disposed of.
Sd/-
JUDGE bkp CT:MJ