Karnataka High Court
Durugappa S/O Sangappa Hulageri vs The State Of Karnataka on 18 January, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200116/2017
Between:
Durugappa
S/o Sangappa Hulageri
Age: 56 years, Occ: Business
R/o Mudagal, Tq. Lingasugur
Dist. Raichur
... Petitioner
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
Represented by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
(Through Lingasugur Police Station
Dist. Raichur)
... Respondent
(By Sri Prabhugouda S.Patil, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the proceedings pending in C.C.
No.80/2015 on the file of JMFC at Lingasugur, for the
offences punishable under Sections 171-H, 188 of IPC.
This petition coming on for admission this day, the
Court made the following:-
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ORDER
This petition is filed by the petitioner/accused No.2 under Section 482 of Cr.P.C., praying to quash the proceedings in C.C. No.80/2015 pending on the file of JMFC, Lingasugur, registered for the offences punishable under Sections 171(H) and 188 of IPC.
2. Brief facts of the case are that, during 2013 in an Assembly Election, the complainant was appointed as a Flying Squad Leader and when he was on duty along with his staff to look after the code of conduct in relation to the said election, on 17.04.2013 at about 10 a.m., he found that two vehicles bearing No.KA-35/5058 (Tata Super ACE) and KA-36/M-6548 (Bolero) was run by the drivers of the said vehicle with installation of Congress party flag over the two vehicles without valid permission from the election commission. Thereby, they have violated the code of conduct of election and have committed the offences under 3 Sections 171(H) and 188 of IPC. After the investigation, the charge sheet has been filed against the accused. Learned Magistrate has taken the cognizance of the said offence and has issued the summons to the accused. In that context, now the entire proceedings are challenged before this Court, seeking quashing of the same.
3. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
4. The main grounds urged by the learned counsel for the petitioner are that the proceedings initiated under Sections 171(H) and 188 of IPC is illegal. It is also contended that Section 188 of IPC is an offence covered under Section 195 of Cr.P.C. According to Section 195 of Cr.P.C., the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. Therefore, registration of case under Section 188 of IPC by the 4 police is illegal. It is also contended that Section 171(H) of IPC is non-cognizable offence and the police cannot investigate the subject matter without the permission of the jurisdictional Magistrate under Section 155 (2) of Cr.P.C. On these grounds, he prays for allowing the petition by quashing the proceedings.
5. On the contrary, the learned High Court Government Pleader appearing for the respondent-State vehemently argued and contended that the complainant appointed to look after the Assembly Election. After ascertaining that there is a violation of code of conduct, he lodged a complaint and on the basis of the said complaint, investigation has been held and charge-sheet has been filed. Now it cannot be contended that such proceedings are illegal.
6. I have gone through the contentions taken up by the learned counsel for the petitioner as well as 5 the learned High Court Government Pleader appearing for the respondent.
7. As could be seen from the provisions of Section 195 of Cr.P.C., it shows that the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C. The above said provision clearly creates a statutory bar to the Court for taking cognizance unless the complaint in writing is made by the public servant to whom he is administratively subordinate. In view of the above said provision, it takes away the general power of Magistrate under Section 190 of Cr.P.C. On perusal of records, there is no complaint in writing lodged by the flying squad, who has been appointed to look after the Assembly Election of Lingasugur Constituency. Even the records also disclose that the offences alleged against the petitioner are under Sections 171(H) and 188 of IPC. Only on the report submitted by the police, 6 after investigation the Magistrate has taken the cognizance of the said offences. The registration of case by the police under Section 188 of IPC itself is illegal. On the date of registration of the case itself, the power under Section 195 of Cr.P.C. was operating and police gets no jurisdiction even to register the case under Section 188 of IPC. So far as it relates to Section 171(H) of IPC is concerned, it reads as follows:
"171(H). Illegal payments in connection with an election,- Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees.
Provided that if any person having incurred any such expenses not exceeding the 7 amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
8. On a plain reading of the above said section, the punishment imposed is fine which may extend to Rs.500/-. Therefore, the said provision is categorized as non-cognizable offence under the classification of the offences in schedule-II to the Cr.P.C. When the offence is declared as non-cognizable in nature, Section 155(2) of Cr.P.C. bars the police to investigate such matter without the valid permission from the jurisdictional Magistrate. Section 155(2) of Cr.P.C. reads as follows:-
"155. Information as to non-cognizable cases and investigation of such cases, -
(1) xxx xxx xxx xxx xxx (2) No police officer shall investigate a non-8
cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
xxx xxx xxx xxx xxx
9. It is an absolute bar, which says that, no police officer shall investigate a non-cognizable case without the order of the Magistrate. In view of the above said factual and legal aspects, it is clear that registration of crime by the police under Section 188 of IPC is illegal and no permission has been taken by the police for the purpose of investigating the offence under Section 171(H) of Cr.P.C. Therefore, under the above said circumstances, the entire proceedings are vitiated by serious illegality. Therefore, the Magistrate ought not to have taken cognizance of the said offence.
10. Once an illegality perpetuates into the investigation, such investigation is hit by the statutory principle. Then, it cannot be construed as legal proceedings or legal investigation by the police. 9 Therefore, as rightly contended by the learned counsel for the petitioner, the cognizance taken by the Magistrate appears to be illegal and he ought not to have taken the cognizance for the offences under Sections 171(H) and 188 of IPC. In that light, the petition deserves to be allowed.
Accordingly, the petition is allowed and the entire further proceedings in C.C.No.80/2015 pending on the file of JMFC, Lingasugur, registered for the offences punishable under Sections 171(H) and 188 of IPC are quashed.
Sd/-
JUDGE LG Ct: MHS