Karnataka High Court
Somashekhar Alias Somu vs The State Of Karnataka on 26 July, 2024
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NC: 2024:KHC-D:10648
CRL.P No. 101956 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO.101956 OF 2024
BETWEEN:
SOMASHEKHAR ALIAS SOMU
S/O. RAMAPPA ALIAS THIMMAPPA
AGE: 39 YEARS
OCC. DRIVER
R/O. 1ST CROSS, RAJYOTSAVA NAGAR
RUPANGUDI ROAD
BALLARI-583 104.
...PETITIONER
(BY SRI B. ANWAR BASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH BRUCEPETE PS BALLARI
REPRESENTED BY ITS SPP
HIGH COURT OF KARNATAKA
BENCH AT DHARWAD-580 001.
...RESPONDENT
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA (BY SRI JAIRAM SIDDI, H.C.G.P.)
Location: HIGH
COURT OF
KARNATAKA
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.
1647/2023 BEFORE I ADDITIONAL CIVIL JUDGE AND JMFC AT
BALLARI (ARISING OUT OF CRIME NO.199/2023) REGISTERED BY
BRUCEPETE POLICE STATION, BALLARI, FOR AN OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE ACT,
1963 BY ALLOWING THE CRIMINAL PETITION IN SO FAR THIS
PETITIONERS IS CONCERNED.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10648
CRL.P No. 101956 of 2024
ORDER
This petition is filed under Section 482 Cr.P.C. praying to quash the entire proceedings in C.C.No.1647/2023 pending on the file of learned 1 Addl. Civil Judge and JMFC, Ballari registered by Brucepete police station, Ballari, for the offence punishable under Section 78(3) of The Karnataka Police Act, 1963(for short K.P. Act).
2. Heard learned counsel appearing for the petitioner and learned HCGP appearing for respondent State.
3. The case of the prosecution is that on 10.10.2023, at 5.15 p.m., the police inspector of Brucepete police station, Ballari received credible information that the petitioner was engaged in playing Matka game and hence, the Police Inspector and his sub staff went to the spot, conducted raid and seized an amount of Rs.1,450/-, two Makta chits and a ball pen. Thus the PSI prepared seizure panchanama and filed a complaint. On the basis of the complaint, the SHO registered a case in Cr.No.199/2023 for the offence punishable under Section 78(3) of K.P. Act. Subsequently, the charge sheet was filed against the petitioner for the offence under Section 78(3) of K.P. Act. -3-
NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024
4. The petitioner has stated that the complaint is misconceived and the alleged offence is a non cognisable one. Under the provisions of Cr.P.C., the police have no authority to investigate the crime and the police have not complied with mandatory requirements of Section 155(1) of Cr.P.C. It is contended that when the officer-in-charge of police station receives an information regarding commission of a non-cognisable offence, he shall enter the same in a book to be maintained by the said officer and refer the informant to the magistrate.
5. It is contended that the respondent police received information on 10.10.2023 at 5.15 p.m. and the alleged raid was conducted on the same day at 5.30 p.m., but the magistrate accorded permission to investigate the matter on 11.10.2023 and the respondent police received information on 11.10.2023 at 8.45 p.m., which is in clear violation of Section 155(2) of Cr.P.C. It is contended that as per Section 155(2) of Cr.P.C, no police officer shall investigate an non-cognisable offence without the order of the Magistrate having power to try such case or to commit such case for trial. But there is no iota -4- NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 of evidence to show that the above requirements are complied with in the present case and there is no speaking order by the jurisdictional Magistrate for permitting the police to take up the investigation. Therefore, the proceedings initiated against the petitioner in the charge sheet is liable to be quashed.
6. Learned HCGP submitted that the jurisdictional Magistrate has permitted the concerned police officer to take up the investigation and therefore, there is compliance of Section 155(2) of Cr.P.C.
7. It is not in dispute that the alleged offence under Section 78(3) of K P Act is a non-cognisable one and when the report is received by the SHO of the police station in respect of commission of non-cognisable offence, the SHO has to follow the mandatory requirement of Sections 155(1) and 155(2) of Cr.P.C. Sections 155(1) and (2) of Cr.P.C. reads as under:-
155.(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 in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.-5-
NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 (2) No police officer shall investigate a non- cognisable case without the order of a Magistrate having power to try such case or commit the case for trial.
8. Therefore, in view of the aforesaid proposition of law, it is the duty of the police officer to enter the substance of information in the prescribed book and refer the informant to the magistrate as required under Section 155(1) of Cr.P.C. and thereafter the jurisdictional magistrate is required to pass an order permitting the police officer to investigate the case as required under Section 155(2) of Cr.P.C. Therefore, unless the police officer is permitted by the Magistrate in an order 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.
9. This Court in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka reported in ILR 2020 KAR 630, considering non- compliance of mandatory provisions of Section 155(1) and (2) of Cr.P.C., has held as under:
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NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 "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 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 -7- NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 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 investigate the case, who shall be other than informant or the complainant."
10. In view of the mandatory requirements stated in Sections 155(1) and (2) of Cr.P.C. and the ratio laid down in the case stated supra, the SHO of a police station has no authority unless the jurisdictional Magistrate permits him for investigation of a non-cognizable offence. Whereas, in the instant case, the learned Magistrate has passed an order on the requisition submitted by the SHO of the police station by writing the words as 'IO is directed to conduct the investigation'. But, this Court in catena of decisions held that the said endorsement on the requisition submitted by the police officer is not a judicious order having applied its mind and there is no application of judicious mind in permitting the police officer to take up the investigation for a non-cognizable offence. Therefore, the SHO of a police station if received a complaint from the PSI and in turn, the SHO has to submit a requisition to the jurisdictional Magistrate seeking permission to -8- NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 investigate an offence punishable under Section 78(iii) of the K.P.Act, which is a non-cognizable offence.
11. It is seen that the jurisdictional Magistrate has made an endorsement stating that 'IO is directed to conduct the investigation'. Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the police officer to investigate a non-cognizable offence, much less, an order passed by the learned Magistrate.
12. In the case on hand, the respondent police received information on 10.10.2023 at 5.15 p.m. and the raid was conducted on the same day at 5.30 p.m.. However, the learned Magistrate permitted the respondent police to investigate the matter on the following day i.e., on 11.10.2023 at 8.45 p.m.. It shows that the respondent police had no authority to investigate the matter. Under these circumstances, the proceedings initiated against the petitioner by the learned magistrate requires to be quashed. Under these circumstances, the proceedings initiated against the petitioner by the learned Magistrate requires to be quashed. Accordingly, the Court pass the following:
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NC: 2024:KHC-D:10648 CRL.P No. 101956 of 2024 ORDER The petition filed under Section 482 of Cr.P.C. is allowed.
The proceedings initiated against the petitioner for the offence punishable under Section 78(3) of the K.P.Act in C.C.No.1647/2023 pending on the file of 1 Addl. Civil Judge and JMFC, Ballari is quashed.
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JUDGE MN List No.: 1 Sl No.: 33