Karnataka High Court
Somu Alias Somashekhar S/O Late ... vs The State Of Karnataka on 18 July, 2024
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NC: 2024:KHC-D:10036
CRL.P No. 101931 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 101931 OF 2024 (482)
BETWEEN:
SOMU @ SOMASHEKHAR
S/O. LATE THIMMAPPA,
AGE. 37 YEARS, OCC. TAILOR,
R/O. 1ST CROSS,
RAJYOTSAVA NAGAR,
RUPANGUDI ROAD,
BALLARI 583101.
...PETITIONER
(BY SRI. B. ANWAR BASHA, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH BRUCEPETE PS BALLARI,
REP. BY ITS SPP,
HIGH CURT OF KARNATAKA,
Digitally signed BENCH DHARWAD-580001.
by MANJANNA
E
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA (BY SRI. JAIRAM SIDDI, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.
172/2024 BEFORE I ADDL. CIVIL JUDGE AND JMFC AT BALLARI
(ARISING OUT OF CRIME NO. 275/2023) REGISTERED BY
BRUCEPETE PS BALLARI, FOR AN OFFNCE P/U/SEC. 78(3) OF
KARNATAKA POLICE ACT 1963 BY ALLOWING THE CRIMINAL
PETITION IN SO FOR AS THIS PETITIONERS IS CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10036
CRL.P No. 101931 of 2024
ORDER
1. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') seeking to quash the entire proceedings in C.C.No.172/2024 pending on the file of learned 1st Additional Civil Judge and JMFC at Ballari, for the offence punishable under Section 78(iii) of the Karnataka Police Act, 1963 (hereinafter referred to as 'K.P.Act' for short).
2. Brief facts of the case are that, on 26.12.2023 at about 4.00 p.m., respondent received a credible information that, the petitioner was engaged in playing matka game and hence, respondent and his sub-staff went to the spot, conducted raid and seized an amount of Rs.1,400/-, two matka chits and a ball pen, thus, respondent prepared seizure panchanama and filed a complaint. On the basis of the complaint, respondent registered a case in Crime No.275/2023 for the offence punishable under Section 78(iii) of the K.P.Act. Subsequently, after investigation, the charge sheet was filed against the petitioner for the offence punishable under Section 78(iii) K.P.Act.
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NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024
3. The petitioner has stated that, the complaint is misconceived and the alleged offence is a non-cognizable one under the provisions of the criminal procedure code; the police have no authority to investigate the crime and the police have not complied with the mandatory requirements of Section 155(1) of the Cr.P.C. It is contended that, when an officer in-charge of a police station received an 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 informant to the Magistrate. It is contended that as per Section 155(2) of Cr.P.C., no police officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or to commit such case for trial, but, there is no iota 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 proceeding initiated against the petitioner in the charge sheet is liable to be quashed.
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4. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
5. The learned counsel for the petitioner submitted that the offence under Section 78(iii) of the K.P.Act is a non-cognizable one and as per Section 155(1) of Cr.P.C., the informant ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed an order, permitting the concerned police to take up the investigation of the case and these are the mandatory requirements of Section 155(1) and (2) of Cr.P.C., but, these proceedings are not followed by the jurisdictional Magistrate and therefore, the proceedings initiated against the present petitioner requires to be held as vitiated and thus, liable to be quashed.
6. The learned High Court Government Pleader 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.
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7. It is not in dispute that, the alleged offence under Section 78(iii) of the K.P.Act is a non-cognizable one and when the report is received by the SHO of a police station in respect of commission of a non-cognizable offence, the SHO has to follow the mandatory requirements of Section 155(1) and (2) of Cr.P.C.
8. Section 155 (1) and (2) of Cr.P.C. reads as follows:
"S. 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."
9. Therefore, in view of the aforesaid proposition of law, it is the duty of the police officer to enter the -6- NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024 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. 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 a written order to investigate a non-cognizable offence, the police officer does not get the jurisdiction to investigate the matter and file a final report or a charge sheet.
10. This Court in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka1, considering non-compliance of mandatory provisions of Section 155(1) and of Cr.P.C., has held as under:
"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.1
ILR 2020 KAR 630 -7- NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024 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 -8- NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024 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 investigate the case, who shall be other than informant or the complainant."
11. In view of the mandatory requirements stated in Section 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 'permitted to investigate the alleged offence'. 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 -9- NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024 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 investigate an offence punishable under Section 78(iii) of the K.P.Act, which is a non- cognizable offence.
12. It is seen that the jurisdictional Magistrate has made an endorsement stating that 'permitted to investigate the alleged offence'. Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the police officer to investigate a non- cognizable offence, muchless, an order passed by the learned Magistrate. Under these circumstances, the proceeding initiated against the petitioner by the learned Magistrate requires to be quashed. Accordingly, the Court pass the following:
ORDER a. The petition filed under Section 482 of Cr.P.C. is allowed.
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NC: 2024:KHC-D:10036 CRL.P No. 101931 of 2024 b. The proceedings initiated against the petitioner for the offence punishable under Section 78(iii) of the K.P.Act in C.C.No.172/2024 pending on the file of learned 1st Additional Civil Judge and JMFC at Ballari, is quashed.
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JUDGE AC/ct-an List No.: 1 Sl No.: 38