Karnataka High Court
Lakkappa S/O Siddappa Walad vs The State Of Karnataka on 25 April, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.100630/2018
C/w.
CRIMINAL PETITION NOS.100729/2018, 100808/2018,
100809/2018 & 100816/2018
IN CRL.P.NO.100630/2018
BETWEEN:
LAKKAPPA S/O SIDDAPPA WALAD
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O TALAKATNAL, TQ: GOKAK,
DIST: BELAGAVI.
... PETITIONER
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY POLICE SUB-INSPECTOR,
KULUGOD POLICE STATION,
KULAGOD, THROUGH SPL. PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS INITIATED AS
AGAINST THE PETITIONER IN KULUGOD POLICE STATION CRIME
NO. 129 OF 2015 AND CC NO.1523 OF 2015 BY THE RESPONDENT
POLICE UNDER SECTION 78(iii) OF KARNATAKA POLICE ACT AS
PER ANNEXURE-A,B,C AND D.
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IN CRL.P.NO.100729/2018
BETWEEN:
LAKKAPPA S/O SIDDAPPA WALAD
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: TALAKATNAL,TQ: GOKAK,
DIST: BELAGAVI.
... PETITIONER
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP. BY POLICE SUB-INSPECTOR,
KULUGOD POLICE STATION, KULAGOD,
THROUGH SPL. PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, BENCH DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.SEEKING TO QUASH THE PROCEEDINGS INITIATED AS
AGAINST THE PETITIONER IN KULUGOD POLICE STATION CRIME
NO.65/2016 AND C.C.NO.434/2016 IN THE COURT OF ADDL JMFC,
GOKAK BY THE RESPONDENT POLICE UNDER SECTION 78(iii) OF
KARNATAKA POLICE ACT AS PER ANNEXURE-A,B,C AND D.
IN CRL.P.No.100808/2018
BETWEEN:
MOIN S/O. LATE ABDUL GAFOOR SAB
AGED ABOUT 45 YEARS, OCC:BUSINESS,
R/O MOREGALLI,
COWL BAZAAR,
BALLARI.
... PETITIONER
(BY SRI. V M SHEELVANT; S. H. MITHALKOD; V.S.KOUJALAGI &
M.L.VANTI, ADVOCATES)
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AND:
THE STATE OF KARNATAKA
PSI, BRUCEPET POLICE STATION,
BALLARI, DIST:BELLARY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.1048 OF 2017 (CRIME NO. 125
OF 2017) PENDING ON THE FILE OF I ADDL. CIVIL JUDGE AND
JMFC BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P.No.100809/2018
BETWEEN:
MOIN S/O. LATE ABDUL GAFOOR SAB
AGED ABOUT 44 YEARS, OCC:BUSINESS,
R/O MOREGALLI, COWL BAZAAR,
BALLARI.
... PETITIONER
(BY SRI. V M SHEELVANT, ADVOCATE)
AND:
THE STATE OF KARNATAKA
PSI, COWELBAZAR POLICE STATION,
BALLARI, DIST:BELLARY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE COMPLAINT AND FIR IN
BALLARI COWELBAZAR POLICE STATION CRIME NO. 169 OF 2018
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE (JR.DN.) AND
JMFC BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P.NO.100816/2018
BETWEEN:
RIZWAN S/O. ABDUL GAFUR SAB
AGED ABOUT 43 YEARS, OCC:BUSINESS,
R/O. NEAR NANDI SCHOOL,
CANTONMENT, BALLARI.
... PETITIONER
(BY SRI. M L VANTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
PSI BRUCEPET POLICE STATION,
BALLARI, DIST:BELLARY,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.,
PRAYING TO QUASH THE PROCEEDINGS AGAINST PETITIONER
INITIATED IN C.C. NO.561/2017 (CRIME NO.61/2016) PENDING
ON THE FILE OF I ADDL. CIVIL JUDGE & J.M.F.C., BALLARI, FOR
THE OFFENCE PUNISHABLE UNDER SECTION 78(3) OF
KARNATAKA POLICE ACT, 1963.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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COMMON ORDER
In these petitions, the petitioners have sought to quash the criminal proceedings initiated against them for the alleged offences punishable under Sections 78(3) of the Karnataka Police Act, 1963 ('the KP Act', for short) and also under Section 420 of the IPC and Section 66(D) of the I.T. Act, 2000, on the ground of non-compliance of the mandatory requirements prescribed under Section 155(2) of the Code of Criminal Procedure.
2. The common contentions urged by the petitioners in all these petitions are that;
(i) The principal offence charged against the petitioners is a non-cognizable offence. By virtue of Section 155(2) of Cr.P.C., no Police Officer is empowered to investigate such cases without prior order of the learned Magistrate having power to try such cases. In all these cases, the Police Inspectors who lodged the complaints have registered the cases and commenced investigation without authorization by the competent Magistrate as required under Section 155(2) of Cr.P.C. and therefore, the initiation of the proceedings are illegal and contrary to the mandatory provisions contained 6 under Section 155(2) of Cr.P.C. On this sole ground, these proceedings are liable to be quashed.
(ii) Insofar as the cases registered under Section 420 of IPC are concerned, the said provision is invoked only to get over the requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation attracting the 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 petitioners or other accused persons named in the FIR. Therefore, the prosecution of the petitioners for the alleged offence is an abuse of the process of the Court.
(iii) Alternatively, it is argued that the offence punishable under Section 420 of IPC cannot be investigated by the police without registration of the FIR as required under Section 154 of Cr.P.C. In the instant cases, the records reveal that the investigation was taken up even before registration of the cases. Therefore, even on this score also the impugned proceedings cannot be allowed to continue.
(iv) In Support of this contention, the learned counsel has referred to the decisions of this Court in the case of 7 Nabisab S/o Shek Imamsab V/s State of Karnataka (Crl.P.3365/2016 and connected matters disposed on 07.04.2017) as well as the other decisions rendered by this Court in the Case of Sharath @ Salim V/s The State of Karnataka (Crl.P.No.101833/2015 and connected petitions disposed on 18.12.2015), wherein this Court following the decision passed by this Court in batch of petitions in Crl.P.No.100319/2014 has held that non-compliance of the mandatory requirements under Section 155(2) of Cr.P.C. would render the proceedings illegal and invalid.
(v) The learned counsel has also produced a copy of the order passed by the Hon'ble Supreme Court of India in S.L.P.Nos.8567-8580/2016 arising out of the common order passed by this Court in Crl.P.No.100319/2014. The said S.L.P.Nos.8567-8580/2016 is dismissed by the Hon'ble Supreme Court of India, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014.
3. In Crl.P.No.3365/2016 and connected matters, this Court followed the decision rendered by the Coordinate Bench of this Court in Moin Basha Kurnooli Vs. The State of Karnataka by Cowl Bazaar Police Station, Bellary, 8 reported in 2014(4) KCCR 3355, wherein on analysing the relevant provisions of the Code of Criminal Procedure and the Karnataka Police Act, 1963, it is held that the offence under Section 78(3) of the KP Act is a non-cognizable offence, the investigation whereof by a Police Officer is prohibited without prior order of the concerned Magistrate. Further this Court has laid down that the provisions of Section 155(2) of Cr.P.C. is mandatory in nature and failure to comply with the said mandatory requirement is an incurable defect amounting to illegality vitiating the entire proceedings.
4. Undisputedly, in all these proceedings, the FIR came to be registered against the petitioners on the basis of the complaint lodged by the Inspector of the Police of the respective police stations alleging that on receipt of credible information that the accused herein were involved in playing a game of chance by name Matka and were soliciting customers for the said purpose, the PSI of the respective police stations made an application to the concerned Magistrate seeking permission to investigate into the matter and thereafter rushed to the spot along with his team and 9 the panchas and found the accused engaged in the alleged activities, and accordingly, panchanamas were drawn at the spot and incriminating materials were seized from the spot of occurrence and FIRs were registered against the respective accused persons alleging commission of offence punishable under Section 78(3) of KP Act. Apart from registering the offence for the offence under Section 78(3) of the KP Act, FIR was also registered for the offence under Section 420 of the IPC and under Section 66(D) of the I.T. Act, 2000 in Crl.P.No.100816/2018.
5. The details of the cases registered against the petitioners, respective crime Nos. and the date of the FIR are detailed in the table hereinbelow:
Sl. Criminal Crime No. & FIR date CC No. & the Court No. Petition No. Police Station 1 100630/2018 129/2015 03.09.2015 1523/2015 Addl. Civil Judge & Kulugod PS JMFC, Gokak 2 100729/2017 65/2016 15.03.2016 434/2006 Civil Judge & JMFC, Kulgod pS Gokak 3 100808/2018 125/2017 17.06.2017 1048/2017 I Addl. Civil Jduge Brucepet Police & JMFC, Ballari 4 100809/2018 169/2018 23.03.2018 -- --
Cowlbazar PS
5 100816/2018 61/2016 19.04.2016 561/2017 I Addl. Civil Judge
Brucepet PS & JMFC, Ballari
6. Undeniably, the offence alleged in each of the above cases is a non-cognizable offence. Section 155 of the 10 Cr.P.C. deals with the procedure of Investigation and cognizance of non-cognizable cases. It reads as under:
"Section 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. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
7. As per the above provision, when an Officer-in- charge of the police station received the information as to the commission of non-cognizable offence, (i) he shall enter or caused to be entered the substance of the information in a 11 book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
8. In the instant case, the respondent police have utterly failed to comply with the requirements laid down in Section 155(1) and 155(2) of Cr.P.C. Reading of the complaints lodged in each case indicate that on receipt of information, the complainant informed the matter to his superior officer and commenced investigation even without registration of the FIR as mandated under Section 154 of Cr.P.C. There is nothing on record to show that the respondent has referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C. or obtained necessary order as envisaged under Section 155(2) of Cr.P.C. before embarking upon investigation. Thus, on the face of it, the respondents are seen to have committed blatant violation of the provisions of Sections 155(1) and 155(2) of Cr.P.C.
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9. In view of the above factual and legal defects which amount to incurable illegalities and blatant violation of the mandatory requirements of law, all the above proceedings are liable to be quashed.
10. Resultantly, all the petitions are allowed. the FIRs filed in all the above cases as detailed in the table hereinabove at para 5 and consequent proceedings arising therefrom are hereby quashed.
Sd/-
JUDGE gab