Karnataka High Court
Yammiganoor Basha @ Mehaboob ... vs The State Of Karnataka on 9 March, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRL.P. NO.100418/2018
C/W
CRL.P.NOs.100419/18, 100420/18, 100421/18,
100422/18, 100423/18, 100424/18,
100425/18,100426/18, 100427/18.
IN CRL.P.NO.100418/2018
BETWEEN
YAMMIGANOOR BASHA @ MEHABOOB YAMMIGANOOR
BASHA @ YALLARTHI YAMMIGANOOR BASHA,
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI, ADV.)
AND
THE STATE OF KARNATAKA
PSI COWLBAZAR POLICE STATION,
BALLARI, DIST: BALLARI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENTS
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE ORDER OF COGNIZANCE DATED
5.8.2014 AND ALL FURTHER PROCEEDINGS AGAINST PETITIONER
2
INITIATED IN C.C.NO.774 OF 2014 (CRIME NO.46 OF 2014)
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC
BALLARI FOR THE OFFENCES PUNISHABLE UNDER SECTION 78(3)
OF KARNATAKA POLICE ACT 1963.
IN CRL.P.NO.100419/2018
BETWEEN
EAMMIGANOOR BASHA @ MEHABOOB
EAMMIGANOOR BASHA @
YALLARTHI EAMMIGANOOR BASHA,
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANUR, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
AND
THE STATE OF KARNATAKA
PSI SIRIGERI POLICE STATION,
BALLARI, DIST: BALLARI,
REPRESENTED BY STATE PUBLIC PROCECUTOR,
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 ORDER OF COGNIZANCE
DT.14.07.2017 AND ALL FURTHER PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.560/2017 (CRIME NO.89/2016)
PENDING ON THE FILE OF CIVIL JUDGE AND JMFC, SIRUGUPPA,
BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 78(3)
OF KARNATAKA POLICE ACT 1963.
IN CRL.P.NO.100420/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA,
3
S/O SHEAKSHAVALI,
AGED ABOUT 46 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI, ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
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 ORDER OF COGNIZANCE
DT.31.01.2017 AND ALL FURTHER PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.77/2017 (CRIME NO.160/2016)
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC,
BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 78(3)
OF KARNATAKA POLICE ACT 1963 AND SECTION 420 OF IPC.
IN CRL.P.NO.100421/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI.ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
4
BALLARI, DIST: BALLARI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR,ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.717/2015 (CRIME
NO.265/2013) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
(JR.DN.) & JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963 AND 420
OF IPC.
IN CRL.P.NO.100422/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE ORDER OF COGNIZANCE
DT.10.02.2017 AND ALL FURTHER PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.89/2017 (CRIME NO.85/2016)
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE(JR.DN.) AND
5
JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT 1963 AND SECTION 420 OF
IPC.
IN CRL.P.NO.100423/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI, ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
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.87/2017 (CRIME NO.125/2016)
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE (JR.DN.) & JMFC,
BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 78(3)
OF KARNATAKA POLICE ACT 1963 AND 420 OF IPC.
IN CRL.P.NO.100424/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
6
AND
THE STATE OF KARNATAKA
PSI BALLARI RURAL POLICE STATION,
BALLARI, DIST: BALLARI,
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.32/2017 (CRIME NO.314/2016)
PENDING ON THE FILE OF III ADDL. CIVIL JUDGE (JR.DN.) &
JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION
78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P.NO.100425/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR,HCGP)
7
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.863/2015 (OLD
C.C.NO.433/2015) (CRIME NO.174/2013) PENDING ON THE FILE
OF II ADDL. CIVIL JUDGE (JR.DN.) & JMFC, BALLARI, FOR THE
OFFENCE PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA
POLICE ACT 1963 AND 420 OF IPC.
IN CRL.P.NO.100426/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
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.853/2015 (OLD NO.549/2015)
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE (JR.DN.) & JMFC,
BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 78(3)
OF KARNATAKA POLICE ACT 1963 AND SECTION 420 OF IPC.
8
IN CRL.P.NO.100427/2018
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O: EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M L VANTI,ADV.)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION,
BALLARI, DIST: BALLARI,
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.98 OF 2017 (CRIME NO.111 OF
2016) 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 AND 420 OF
IPC.
THESE CRIMINAL PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
9
COMMON ORDER
With consent of the learned counsels appearing for the parties, these matters are taken up for final disposal.
2. In all these petitions, a common question of law has been raised by the petitioners, as to whether the proceedings initiated against them under Section 78(3) of the Karnataka Police Act, 1963 (hereinafter referred to as 'the K.P.Act') are vitiated for want of prior order by the competent Magistrate under Section 155(2) of Cr.P.C?
3. The identical facts in all these cases are that, on receipt of credible information, the Police Sub-Inspector of the respective police stations registered suo-motu complaints against the petitioners under Section 78(3) of the K.P.Act alleging that the petitioners were found indulging in a game of chance called "Mataka". Based on the said information, raids were conducted in the presence of panch witnesses. Petitioners and other persons involved in the alleged activities were arrested. Cash, chits and the mobile phones 10 were seized from their possession. It is further alleged that the petitioners were found inviting customers for gambling.
4. In crime Nos.46/2014 and 89/2016, in addition to the charge under Section 78(3) of the K.P.Act, Section 420 of IPC is also included alleging that the petitioners therein have been indulging in cheating the public.
5. Heard the learned counsel for the petitioners Sri.M.L.Vanti and the learned High Court Government Pleader for respondent-State.
6. The contentions urged by the petitioners are as follows:
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 11 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 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.
12
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.
7. In support of his arguments, the learned counsel has referred to the decisions of this Court in the case of 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 relying on 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) would render the proceedings illegal and invalid.
13
8. Further, in paragraph 24 of the judgment of this Court in Crl.P.No.3365/2016, this Court has considered the effect of incorporating Section 420 of IPC along with the offence under Section 78(3) of K.P.Act has held that, merely because Section 420 of IPC is incorporated, the defect in the initiation of the proceedings without prior order of the Magistrate does not get cured.
9. The learned counsel has also produced the 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.
10. Undisputedly, all the above proceedings are initiated against the petitioners without prior orders of the competent Magistrate as required under Section 155(2) of Cr.P.C. As a result, the registration of the FIRs and the 14 subsequent investigation are vitiated by incurable illegality and are liable to be set aside.
Accordingly, all these petitions are allowed and the criminal proceedings initiated against the petitioners in Cr.No.46/2014 of Cowlbazar Police Station, Cr.No.89/2016 of Sirigeri Police Station, Cr.No.160/2016 of Kurugod Police Station, Cr.No.265/2013 of Kurugod Police Station, Cr.No.85/2016 of Kurugod Police Station, Cr.No.125/2016 of Kurugod Police Station, Cr.No.314/2016 of Ballari Rural Police Station, Cr.No.174/2013 of Kurugod Police Station, Cr.No.202/2013 of Kurugod Police Station and Cr.No.111/2016 of Kurugod Police Station are hereby quashed.
Sd/-
JUDGE Hmb