Karnataka High Court
B Kotresh vs The State Of Karnataka on 18 July, 2024
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NC: 2024:KHC-D:10035
CRL.P No. 102134 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. 102134 OF 2024 (482)
BETWEEN:
B. KOTRESH,
AGE. 45 YEARS, OCC. LABORER,
R/O. DAVANAGERE-577001,
TQ AND DIST. DAVANAGERE.
...PETITIONER
(BY SRI. S. K. HOSAMANI, ADV. FOR
SRI. A. S. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-580008,
THROUGH PSI,
GANGAVATHI RURAL POLICE STATION,
DIST. KOPPAL-583227.
Digitally
signed by
MANJANNA E ...RESPONDENT
Location:
HIGH COURT (BY SRI. JAIRAM SIDDI, HCGP)
OF
KARNATAKA
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE COMPLAINT FILED BY THE RESPONDENT
DATED 03.03.2021 AS PER ANNEXURE-A AND THE IMPUGNED FIR
REGISTERED IN CRIME NO.80/2021 AT GANGAVATI RURAL POLICE
STATION FOR THE ALLEGED OFFENCES PUNISHABLE U/S. 78(3)
KARNATAKA POLICE ACT, 1963 AS PER ANNEXURE-B AND ALSO
FILING OF CHARGE SHEET AS AGAINST THE PETITIONER/ACCUSED
NO.2 AS PER ANNEXURE-C AND FURTHER CONSEQUENTIAL
PROCEEDINGS PENDING ON THE FILE OF PRL.CIVIL JUDGE AND
JMFC, GANGAVATI IN CC NO.1336/2021.
THIS PETITION, COMING ON FOR ADMISION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10035
CRL.P No. 102134 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.1336/2021 pending on the file of learned Principal Civil Judge and J.M.F.C. Gangavati, 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 03.03.2021 at about 3.00 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.5,300/-, one 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.80/2021 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 -3- NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 under Section 78(iii) K.P.Act.
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 -4- NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 quashed.
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 -5- NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 Cr.P.C.
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."
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9. Therefore, in view of the aforesaid proposition of law, it is the duty of the police officer 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. 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 1 ILR 2020 KAR 630 -7- NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 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 -8- NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 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."
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 not at all passed an order directing the SHO of the police station directing that it is a fit case to be investigated.
12. Under these circumstances, the proceeding initiated against the petitioner by requires to be quashed. -9-
NC: 2024:KHC-D:10035 CRL.P No. 102134 of 2024 Accordingly, the Court pass the following:
ORDER a. The petition filed under Section 482 of Cr.P.C. is allowed.
b. The proceedings initiated against the petitioner for the offence punishable under Section 78(iii) of the K.P.Act in C.C.No.1336/2021 pending on the file of learned Principal Civil Judge and J.M.F.C. Gangavati, is quashed.
In view of disposal of main petition, pending I.A's if any, shall stands disposed off.
Sd/-
JUDGE AC/ct-an List No.: 1 Sl No.: 44