Karnataka High Court
Nagesha vs State Of Karnataka on 5 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 5901 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5901 OF 2022
BETWEEN:
1. NAGESHA
S/O LATE THIMMEGOWDA
AGED ABOUT 34 YEARS
R/O ANECHANNAPURA VILLAGE
BINDIGANAVILE HOBLI
NAGAMAGALA TALUK
MANDYA DISTRICT-571418.
2. KUMARA
S/O SHIVANNA
AGED ABOUT 34 YEARS
JAVARANAHALLI VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
3. SATHISHA
Digitally signed S/O NANJEGOWDA
by
PADMAVATHI AGED ABOUT 38 YEARS
BK
Location: High R/O CHATTENAHALLI VILLAGE
Court of
Karnataka BINDIGANAVILE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
4. SHIVAKUMARA
S/O PUTTACHANNEGOWDA
AGED ABOUT 42 YEARS
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CRL.P No. 5901 of 2022
R/O BOOKA VILLAGE
HIRISAVE HOBLI
CHANNARAYAPATTANA TALUK
HASSAN DISTRICT-573201.
5. MANJUNATHA
LATE BOREGOWDA
AGED ABOUT 57 YEARS
R/O CHAKENAHALLI VILLAGE
BINDIGANAVILE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-57418.
6. CHANDREGOWDA
S/O NARASIMHEGOWDA
AGED ABOUT 43 YEARS
R/O ALISANDRA VILLAGE
BINDIGANAVILE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-574018.
7. JAGADISHA
S/O GANGADHARA
AGED ABOUT 45 YEARS
R/O HONNENAHALLI VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
8. BALLARIGOWDA
S/O YAKKIGOWDA
AGED ABOUT 47 YEARS
BOMMANAHALLI VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
9. KUMARA
S/O BASAVARAJU
AGED ABOUT 45 YEARS
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CRL.P No. 5901 of 2022
R/O P. NERALAKERE VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
10. KESHAVA
S/O KRISHNEGOWDA
AGED ABOUT 51 YEARS
R/O DEVRAMAVINAKERE VILLAGE
BINDIGAVAVILE HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
11. ANANDA
S/O DASAPPA
AGED ABOUT 37 YEARS
R/O HONNENAHALLI VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
12. KUMARA
S/O NINGAPPA
AGED ABOUT 45 YEARS
R/O BOMMANAHALLI VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
13. GOVINDARAJU B.S.
S/O SHIVARAMU
AGED ABOUT 41 YEARS
R/O BYALADAKERE VILLAGE
BELLUR HOBLI, NAGAMANGALA TALUK
MANDYA DISTRICT-571418.
...PETITIONERS
(BY SRI. GIRISH B BALADARE., ADVOCATE)
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CRL.P No. 5901 of 2022
AND:
1. STATE OF KARNATAKA
BY BELLUR POLICE, BELLUR
MANDYA DIST
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. K.S.ABHIJITH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.PC PRAYING TO QUASH THE CHARGE SHEET FILED
AGAINST PETITIONERS IN CR.NO.30/2017 BY THE BELLUR
POLICE, MANDYA DISTRICT FOR THE OFFENCE P/U/S 79,
80 OF THE KARNATAKA POLICE ACT, PENDING ON THE
FILE OF THE CIVIL JUDGE AND J.M.F.C, COURT AT
NAGAMANGALA, MANDYA DISTRICT IN C.C.NO.540/2019.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri. Girish B. Baladare, learned counsel appearing for the petitioners and Sri K.S. Abhijith, learned High Court Government Pleader appearing for the respondent-State.
-5- CRL.P No. 5901 of 20222. The petitioners are before this Court calling in question the proceedings in C.C.No.540/2019, pending on the file of the Civil Judge and JMFC Court, Nagamangala, Mandya District, registered for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963, which are non-cognizable offences.
3. In the light of the fact that the said offences were non-cognizable, FIR could not have been registered against the petitioners on such offences, without at the outset seeking permission from the hands of the learned Magistrate under Section 155(2) of the Cr.P.C.
4. It is an admitted fact that in the case at hand, no such permission is sought from the Magistrate to register the FIR or conduct investigation. The issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.101632/2021 and connected cases, disposed of on 21.9.2021, wherein this Court has held as follows:
-6- CRL.P No. 5901 of 2022"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 ILR 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.-7- CRL.P No. 5901 of 2022
6. In view of the law laid down in the aforesaid decisions, the Police have taken prior 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 -8- CRL.P No. 5901 of 2022 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 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.
-9- CRL.P No. 5901 of 2022 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.
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."
5. In the light of the order passed by the Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:
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ORDER
i) The Criminal Petition is allowed.
ii) The proceedings in C.C.No.540/2019, pending on the file of the Civil Judge and JMFC Court, Nagamangala, Mandya District, stand quashed qua the petitioners.
I.A.No.1/2022 is disposed, as a consequence.
Sd/-
JUDGE SJK