Karnataka High Court
Sandeepa K R vs The State Of Karnataka on 10 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
CRL.P No. 9710 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 9710 OF 2021
BETWEEN:
SANDEEPA K.R.,
S/O LATE RAJAPPA
AGED ABOUT 30 YEARS
R/O NO.BB2/H, SHARAVATHI BUILDING
DAVANAGERE - 577 001.
...PETITIONER
(BY SRI R.SHASHIDHARA., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY DAVANAGERE EXTENSION POLICE STATION
DAVANGERE - 577 001
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT BUILDING
Digitally signed by BENGALURU - 560 001.
PADMAVATHI B K
Location: HIGH
COURT OF 2. THIPPESWAMY P. GORAVAR
KARNATAKA
S/O G.K.PANCHANNA
AGED ABOUT 36 YEARS
R/O NO.1174/3, 1ST MAIN
7TH CROSS, VINOBANAGARA
DAANAGERE ALSO AT
SALAGANAHALLI
HARIHAR TALUK - 577 601.
...RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
-2-
CRL.P No. 9710 of 2021
SRI K.SHASHIKANTH PRASAD, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY
THE RESPONDENT POLICE AND COGNIZANCE TAKEN BY THE
TRIAL COURT IN C.C.NO.361/2017 PENDING ON THE FILE OF
THE I-JMFC, DAVANAGERE FOR THE OFFENCE P/U/S 507, 506,
107, 201 R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is before this Court calling in question the proceedings in C.C.No.361/2017 registered for offences punishable under Sections 506, 507, 107, 201 r/w Section 34 of the IPC.
2. Heard Sri.S.Shashidhara, learned counsel appearing for petitioner, Smt.K.P.Yashodha, learned High Court Government Pleader for respondent No.1 and Sri.K.Shashikanth Prasad, learned counsel for respondent No.2.
3. A complaint is registered by the 2nd respondent complainant before the jurisdictional police on 28.03.2016 which becomes a crime in Crime No.114/2016 for offences punishable under Sections 506 and 507 of the IPC. The police, -3- CRL.P No. 9710 of 2021 after investigation, have filed a charge sheet for offences punishable under Sections 506, 507, 107, 201 r/w Section 34 of the IPC. The crime so registered on 4.8.2016 on a complaint made by the complainant for offences punishable under Sections 506 and 507 of the IPC are non-cognizanble offences. On a non-cognizable offence, FIR could not have been registered without the same being placed before the learned Magistrate seeking his permission to register the FIR and conduct investigation.
4. Learned High Court Government Pleader would produce the records pertaining to the lis wherein endorsement is issued by the learned Magistrate upon the communication sent by the first respondent as "perused, permitted". With such endorsement, the investigation takes place and charge sheet is filed by the police. The Co-ordinate benches of this Court, in plethora of cases, have held such endorsements would not suffice and cannot stand the scrutiny of law, as permission should be granted by the learned Magistrate, on application of judicious mind. In one such decision rendered by the Co- ordinate Bench of this Court in Crl.P.No.101632/2021 and -4- CRL.P No. 9710 of 2021 connected cases, disposed of on 21.9.2021, this Court has held as follows:
"4. The main ground of attack by the petitioner in respective petitions is that the offence alleged is under Section 78(3) of K.P. Act. 1963 and it is a non cognizable offence. Before proceeding to investigate the offence the Police ought to have taken prior permission from the concerned court as required under Section 155(2) of Cr.P.C. Therefore, there is no compliance of Section 155(2) of Cr.P.C. It is further contended that even if the permission from the Magistrate was obtained, it is not in accordance with the guidelines issued in Vaggeppa Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in 2020 KAR 630. Learned HCGP has contended that in some of the cases, the Police have obtained permission of the concerned court and then investigated the matter and filed the charge sheet. He further contended that the Police have taken the care to comply mandatory requirements and then only they have proceeded with the matter and ultimately filed the charge sheet.
5. Co-ordinate Bench of this court in the case of Moin Basha Kurnooli V/s. The State of Karnataka, By Cowl Bazaar Police Station, reported in 2014 (4) KCCR 3355 elaborately considered the provisions of Section 155 (2) and 155(3) of Karnataka Police Act and held that offence under Section 78(3) of K.P. Act is a non cognizable offence. Investigation of cases under Section 78(3) of K.P. Act and all further proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.
6. In view of the law laid down in the aforesaid decisions, the Police have taken prior -5- CRL.P No. 9710 of 2021 permission from the jurisdictional Magistrate to investigate a non cognizable offence as required under Section 155(2) of Cr.P.C.
7. In crime No.151/2020 of Ranebennur Rural Police station, the FIR came to be registered for the offence under Sections 78(3) of K.P. Act and Section 420 of IPC and charge sheet has been filed only for the offence under Section 78(3) of K.P. Act. Section 420 of IPC is invoked only to get over requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation to attract ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioner or other accused persons named in the FIR. In the said crime No.151/2020 the Police have not obtained permission of the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C. Therefore, the prosecution of the petitioner for the alleged offence is an abuse of process of court.
8. The coordinate Bench of this court in the case of Vaggeppa Gurulinga Jangaligi (supra) after elaborately considering Section 155(1) and (2) of Cr.P.C. and Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 has issued guidelines to be followed by judicial Magistrate. The said guidelines are as under:
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 -6- CRL.P No. 9710 of 2021 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.
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.
9. In Crime No.93/2020 of Guttal Police Station the Police gave requisition seeking permission to investigate a non cognizable offence and the learned Magistrate on the same day has issued intimation as granted permission to investigate a non cognizable offence.-7- CRL.P No. 9710 of 2021
10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave requisition and on the same requisition, the learned Magistrate has made endorsement as "permitted to register the case".
11. On looking to the said aspects, it is clear that the learned Magistrate has not followed the guidelines laid down in Vaggeppa case (supra). By looking to the said endorsement, there is no application of judicious mind by the learned Magistrate. Under the circumstances, the proceedings initiated against the petitioner in the following cases cannot sustain in law and accordingly, they are quashed."
In view of the judgment of the Co-ordinate Bench as afore-quoted and in the light of the undisputed fact as narrated hereinabove and also the endorsement of the learned Magistrate as "perused, permitted", all further proceedings taken up by the police including filing of the charge sheet would all be a nullity in law.
5. For the afore-said reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Impugned proceedings pending in C.C.No.361/2017 on the file of JMFC-I Court, Davanagere stands quashed qua the petitioner.-8- CRL.P No. 9710 of 2021
Consequently, I.A.No.1/2021 also stands disposed.
Sd/-
JUDGE BKP