Karnataka High Court
Leo Carneleo vs State Of Karnataka on 20 November, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
W.P. NO. 49657/2017 (GM-RES)
BETWEEN
LEO CARNELEO
AGED ABOUT 45 YEARS,
S/O F X CARNELEO
R/AT KAKKUNJE AMBAGILU
SHIVALLI VILLAGE,
UDUPI-576 102, KARNATAKA. ... PETITIONER
(BY SRI. DHANANJAY KUMAR, ADV.)
AND
1. STATE OF KARNATAKA
BY BRAHMAVARA P.S
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU-560001
2. MADHU T.S.
SUB INSPECTOR OF POLICE
UDUPI TOWN POLICE STATION
UDUPI-576 102 ... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP)
THIS W.P. IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.1071/2014 IN THE COURT OF
2
THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
CRIME NO.205/2014 REGISTERED BY THE UDUPI TOWN
POLICE STATION AS AGAINST THE PETITIONER FOR
THE OFFENCES PUNISHABLE UNDER SECTION 78(1)(iii)
OF THE KARNATAKA POLICE ACT, 1963 AND 420 R/W.
SEC.34 OF IPC VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner is arrayed as Accused No.3 in Crime No.56/2015 of Bramhavara Police Station for the offence punishable under section 78(1)(a)(vi) of Karnataka Police Act ('KP Act' for short) and 420 r/w. Section 34 of IPC.
2. This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. by the petitioner/accused praying to quash the proceedings initiated by the police for the offence punishable under sections 78(1)(iii) of the Karnataka Police Act, 1963 and Section 420 of IPC.
3. Brief facts of the prosecution case is that, the petitioner/accused has committed an offence punishable 3 u/s.78(1)(iii) of the Karnataka Police Act. After investigation, the Investigating Officer submitted a charge sheet for the offence punishable under sections 78(1)(iii) of the KP Act and dropped Section 420 of IPC. After filing of the charge sheet, the Trial Court took cognizance of the offence and ordered to register a criminal case against the accused.
4. Being aggrieved by the initiation of Criminal proceedings, the petitioner/accused has approached this Court for quashing of the said proceedings and the FIR.
5. Heard the arguments of the learned counsel appearing for the petitioner/accused in respect of all the petitions and the learned High Court Government Pleader appearing for the respondent - State.
6. On perusal of the records, it reveals that there is a serious legal infirmity in not adhering to Section 155(2) of Cr.P.C. What is contemplated u/s.155(2) of Cr.P.C. is that, if a non-cognizable offence is reported to the police, they cannot straight away go to the spot and 4 investigate the matter. They must refer the complaint to the jurisdictional Magistrate and take permission of the jurisdictional Magistrate to investigate the matter.
7. In this regard, it is worth to extract Section 155 of Cr.P.C. 1973, which reads thus:
"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."
Sub-Clause (1) of Section 155 of Cr.P.C. also clears the doubt that when a non-cognizable offence is reported, 5 then the police shall enter or cause to be entered the substance of the information in a book kept by such officer in such form as the State Government may prescribe and refer the informant to the Magistrate. Sub-Clause (2) of Section 155 of Cr.P.C. mandates that
- No police officer shall investigate the non cognizable offence without the order of a Magistrate having power to try such case or commit the case for trial. Therefore, it is mandatory provision that as soon the information is received by the Police Officer himself, which is a credible information, he should refer himself to the Magistrate to take the permission and then investigate the matter.
8. This court had an occasion to deal with Karnataka Police Act in detail particularly with reference to almost all the provisions under the Karnataka Police Act, where those provisions are considered to be non- cognizable offence.
9. In a decision reported in 2015 CRL.LJ. 982 between Moin Basha Kurnooli Vs. State of Karnataka, this Court has categorically held while 6 dealing u/s.155(2) of Cr.P.C. that in non-cognizable offence, particularly under the Karnataka Police Act, Investigation Officer conducted the investigation without obtaining the prior permission of the Magistrate or without referring the complaint to the Magistrate u/s.155(2) of Cr.P.C., such proceedings are vitiated by incurable defects and it amounts to illegality. Section 155(2) of Cr.P.C. is mandatory and not directory. Therefore, the investigation and the report filed by the Police Officers in such cases cannot be legally sustained.
10. In view of the above said decision, this court has to see what the police have done in the above said cases.
11. In the above said case, looking to the materials on record, it is the case of the prosecution that the jurisdictional police have received credible information with regard to some people indulged in committing the offences u/s.78(1)(iii) of KP Act. The Police without taking permission of the Magistrate directly proceeded to the spot with panch witnesses and 7 seized the incriminating articles and also arrested some persons and thereafter coming back to the Police Station registered a case and after investigation submitted the report. The above said proceedings before police are straight away hit by Section 155(1) and (2) of Cr.P.C.
12. In this particular case, though the credible information has been received by the police, the police did not go to the Magistrate to take permission, but directly go to the spot and almost investigated the matter and thereafter presented the special report to the Magistrate for the purpose of taking permission, which is not a letter of spirit u/s.155(1) and (2) of Cr.P.C.
13. Under the above said circumstances, I do not find any strong reasons to reject the petitions. The proceedings initiated by the police are hit by serious procedural illegality which virtually amounts to irregularity and as such, the proceedings shall liable to be quashed.
8
Accordingly, the Petition is allowed. The proceedings in CC No.1071/2014 [Crime No.205/2014 of Udupi Town Police Station], on the file of the I Addl. Civil Judge & JMFC, Udupi, against the petitioner is hereby quashed.
Sd/-
JUDGE PL*