Karnataka High Court
Prashant Mahadev Mathapati vs The State Of Karnataka on 11 October, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:12255
CRL.P No. 102710 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 102710 OF 2023
BETWEEN:
1. PRASHANT MAHADEV MATHAPATI,
AGE. 31 YEARS, OCC. BUSINESS,
R/O. BASAV NAGAR, TQ. GOKAK,
DIST. BELAGAVI-591307.
2. PRAVEEN ASHOK WARIMANI,
AGE. 37 YEARS, OCC. BUSINESS,
R/O. BASAV NAGAR, TQ. GOKAK,
DIST. BELAGAVI-591307.
... PETITIONERS
(BY SMT. POOJA SAVADATTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY GOKAK TOWN POLICE STATION,
R/BY THE STATE PUBLIC PROSECUTOR,
VISHAL HIGH COURT OF KARNATAKA,
NINGAPPA
PATTIHAL DHARWAD BENCH.
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
... RESPONDENT
Date: 2023.10.16
13:49:41 +0530 (BY SRI. V.S. KALASURTMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.
SEEKING TO ALLOW THE PETITION AND QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.1043/2018 AS AGAINST ACUSED NO. 16
AND 17 (ARISING OUT OF GOKAK TOWN P.S. CR.NO.207/2017) AT
ANNEXURE-A PENDING BEFORE PRL GOKAK FOR THE ALLEGED
OFFENCES P/U/SEC. 79, 80 OF KP ACT AND SECTIONS 341, 353,
224 R/W 149 OF IPC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 102710 of 2023
ORDER
1. The petitioners are before this Court calling in question the proceedings in C.C. No.1043/2018 for the offences punishable under Sections 79 and 80 fo the Karnataka Police Act and Sections 341, 353, 224 read with Section 149 of the IPC.
2. Heard the learned counsel Smt.Pooja Savadatti appearing for the petitioners.
3. The offences alleged against the petitioners are the ones punishable under Sections 79 and 80 of the Karnataka Police Act and Sections 341, 353, 224 read with Section 149 of the IPC. The petitioners are accused Nos.16 and 17. The learned counsel would take this Court through the documents appended to the petition to contend that qua other accused arising out of the same crime, the Co-
ordinate Bench of this Court has quashed the proceedings in Crl.P. No.100461/2020 in terms of its order dated 29.09.2020 and Crl.P. No.100177/2021 in terms of its order dated 14.09.2021. The Co-ordinate Bench has held as follows:
-3-NC: 2023:KHC-D:12255 CRL.P No. 102710 of 2023 "The petitioners/accused Nos.11, 40, 41, 43, 61 and 62 have invoked the jurisdiction of this Court under Section 482 of Cr.P.C., and sought quashing the proceedings in C.C.No.1043/2018 on the file of Principal Civil Judge & JMFC Court, Gokak, arising out of Gokak Town Police Crime No.207/2017 for the offences punishable under Sections 79 & 80 of the Karnataka Police Act, 1963 and Sections 341, 353, 224 read with Section 149 of IPC.
2. Heard the learned counsel for the petitioners and the learned HCGP for the respondent-State.
4. It is alleged that, FIR and complaint in Crime No.207/2017 was registered for the aforesaid offences on 21.10.2017. In the said complaint, it is alleged that on 21.10.2017 at about 00:05 hours the complainant received information that around 60 to 70 persons were engaged in playing cards in Prince Social Club. The complainant after intimating the same to his superior officials as also obtained the permission from the Magistrate for raid.
4. The complainant after securing the senior officials and some staff and panchas, went -4- NC: 2023:KHC-D:12255 CRL.P No. 102710 of 2023 to the spot. At about 1:15 a.m., he found that around 60 to 70 persons were playing cards Andhar-Bahar. The said persons stated to have obstructed in the discharge of official duty. On a search an amount of Rs.4,30,470/- was seized.
An investigation was conducted and charge-sheet was filed for the aforesaid offences.
5. Learned counsel for the petitioners would submit that, the order passed by the Magistrate is not in accordance with the decision rendered by this Court in the case of Vaggeppa Gurulingappa Jangaligi Vs. The State of Karnataka, through PSI, Kagwad Police Station, Kagwad, reported in 2020(1) KCCR 371, wherein, it has been categorically stated that, before granting permission, the Magistrate is required to apply his mind and record an order, which would establish the said application of mind. He further submitted that, the police have not obtained any permission by the learned Magistrate under Section 155(2) of Cr.P.C. It is his further submission that, only το circumvent to obtaining the permission under Section 155(2) of Cr.P.C., the police have invoked Section 341, 353, 224 read with Section 149 of IPC.
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6. Learned HCGP has contended that, the offence alleged under Section 341, 353, 224 read with Section 149 of IPC, are cognizable offences and there is no need for police to obtain permission as required under Section 155(2) of Cr.P.C.
7. There is a considerable force in the submission of the learned counsel for the petitioners that the game of Andhar-Bahar as held by this Court in several cases is not a game of skill and is a game of chance and therefore, this court held that Sections 79 & 80 of K.P.Act are not applicable. It is also found from the records that, the offences being non- cognizable offences, the Investigating Officer has not sought permission from the jurisdictional Magistrate in terms of Section 155(2) of Cr.P.C.
8. A perusal of Section 155(1) & (2) of Cr.P.C., would indicate that, whenever there is a non-cognizable offence which is to be investigated, it is the duty of the concerned police officer to enter the details of the same in the Station House Dairy and send the information to concerned Magistrate under Section 155(1) of Cr.P.C. and in terms of Section 155(2) of Cr.P.C., -6- NC: 2023:KHC-D:12255 CRL.P No. 102710 of 2023 permission has to be obtained from the jurisdictional Magistrate to initiate investigation and to proceed further in the matter. A perusal of the record available would indicate that, no such permission from the jurisdictional Magistrate has been obtained. Therefore, there being a substantive violation of mandatory procedural law, the prosecution cannot be continued against the petitioners herein.
9. A perusal of the complaint indicates only perfunctory statements, which are made as regards the alleged offences under Section 341, 353, 224 read with Section 149 of IPC, and they are without any substance and perhaps made only to avoid the requirement of compliance with Section 155(2) of the Cr.P.C. In view thereof, the provisions not being attracted against the petitioners and the entire proceedings against the petitioners are concerned in C.C.No.1043/2018 pending on the file of Principal Civil Judge & JMFC Court, Gokak, requires to be quashed.
10. This Court in Criminal Petition No.100461/2020 by order dated 29.09.2020 has -7- NC: 2023:KHC-D:12255 CRL.P No. 102710 of 2023 quashed the proceedings against the accused Nos.15 and 46 to 48. Accordingly, the following:
ORDER The petition is allowed.
The proceedings in C.C.No.1043/2018 on the file of Principal Civil Judge & JMFC Court, Gokak, arising out of the Gokak Town Police Station Crime No.207/2017, is quashed insofar as the present petitioners/accused Nos.11, 40, 41, 43, 61 and 62 are concerned."
5. In the light of the issue being answered by two Co-ordinate Benches and for the reasons indicated therein, the petition qua accused Nos.16 and 17 also deserves to succeed, as the petitioners / accused in the other petitions.
6. For the aforesaid reasons, the following order:
ORDER
(i) Petition is allowed. -8-
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(ii) The impugned proceedings in C.C. No.1043/2018 qua the petitioners stand quashed.
Sd/-
JUDGE Rsh / ct:bck List No.: 3 Sl No.: 6