Karnataka High Court
Shivaraj Patil And Anr vs The State Of Karnataka And Anr on 26 July, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:5399
CRL.P No. 200852 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO. 200852 OF 2024 (482)
BETWEEN:
1. SHIVARAJ PATIL
S/O AMARAPPAGOUDA PATIL
AGE ABOUT 44 YEARS
OCC: POLICE SUB INSPECTOR
MIRIYAN POLICE STATION MIRIYAN
TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
KARNATAKA.
AND ALSO AT R/O KIRADAHALLI VILLAGE
TQ: SURAPUR
DIST: YADAGIRI
2. RAJU G. TALIKOTI
Digitally
signed by S/O GANGANNA TALIKOTI
SHILPA R AGE: ABOUT 52 YEARS
TENIHALLI
Location: OCC: ASSISTANT SUB INSPECTOR
HIGH MIRIYAN POLICE STATION, MIRIYAN
COURT OF
KARNATAKA TQ: CHINCHOLI
DIST: KALABURAGI-585 307.
KARNATAKA
AND ALOS AT R/O. PETA SHIRUR VILLAGE
TQ: KALAGHATAGI (CHITTAPUR)
DIST: KALABURAGI
...PETITIONERS
(BY SRI AVINASH M. ANGADI, ADV.)
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NC: 2024:KHC-K:5399
CRL.P No. 200852 of 2024
AND:
1. THE STATE OF KARNATAKA
BY MIRIYAN POLICE STATION MIRIYAN
REP. BY ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI-585 107
KARNATAKA
2. THE HON'BLE PRL CIVIL JUDDGE AND JMFC
CHINCHOLLI,
DIST: KALABURAGI-585 307.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1
SRI KRUPA SAGAR PATIL, ADV,. FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
QUASH THE ORDER DATED 21.06.2024 PASSED BY THE
HON'BLE PRL. CIVIL JUDGE AND JMFC, CHINCHOLLI AND FIR
NO. 31/2024 REGISTERED BY THE RESPONDENT NO.1 POLICE
STATION MIRYAN P.S. IN RESPECT OF ACCUSED NO.1 AND 2 /
THE PETITIONERS HEREIN PENDING ON THE FILE OF HON'BLE
PRL. CIVIL JUDGE AND JMFC CHINCHOLLI FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 166, 465 AND 466 OF IPC IN
THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. Accused nos.1 & 2 are before this Court under Section 482 Cr.PC with a prayer to quash the order dated 21.06.2024 passed by the Court of Prl. Civil Judge & JMFC, Chincholi, and also the FIR in Crime No.31/2024 registered by Miryan Police -3- NC: 2024:KHC-K:5399 CRL.P No. 200852 of 2024 Station, Kalaburagi District, for the offences punishable under Sections 166, 465 & 466 IPC.
2. Heard the learned Counsel for the parties.
3. Facts leading to filing of this petition as revealed from the records narrated briefly are, on 27.05.2024 the Principal Civil Judge & JMFC, Chincholi who is respondent no.2 herein, visited Miryan Police Station at about 8.15 p.m. and found that a person was collecting money from lorry driver in front of the police station, and on verification, he learnt that the said person was Assistant Sub-Inspector of Police attached to Miryan Police Station. Thereafter, respondent no.2 after verification of the Judges visit diary maintained in the police station, found that certain pages of the diary were missing and subsequently also received information from the earlier Presiding Officer that officials were caught receiving money from lorry drivers and the same was entered in the Judges visit diary. It is in this background, he had issued a communication dated 31.05.2024 to the Superintendent of Police, Kalaburagi District, to take necessary action against the erring officials. Since no action was taken by the concerned authority, he had issued communication dated 15.06.2024 to the Superintendent -4- NC: 2024:KHC-K:5399 CRL.P No. 200852 of 2024 of Police, Kalaburagi District, informing him that if no action is taken against the erring officials, powers under Section 190(1)(c) of Cr.PC would be exercised by him. Thereafter, on 21.06.2024, he has treated his communication addressed to the Superintendent of Police as a private complaint and in exercise of his powers under Section 156(3) Cr.PC, directed the CPI, Chincholi, to investigate the matter and report. Pursuant to the such an order, FIR in Crime No.31/2024 was registered by Miryan Police Station against the petitioners herein for the aforesaid offences. Assailing the same, the petitioners who are arrayed as accused nos.1 & 2 in the FIR, are before this Court.
4. Learned Counsel for the petitioners having reiterated the grounds urged in the petition, submits that respondent no.2 was not justified in passing the impugned order. He submits that respondent no.2 himself is the complainant in the present case, and therefore, he could not have exercised his powers under Section 156(3) Cr.PC in the present case. He also submits that respondent no.2 never came into the police station on 27.05.2024 and the allegations made in the communication are not correct. Accordingly, he prays to allow the petition.
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5. Learned HCGP appearing for respondent no.1 and the learned Counsel appearing for respondent no.2 submits that respondent no.2 has powers under Section 190(1)(c) of Cr.PC to take cognizance of the offences of which he has got personal knowledge. Proceedings has been initiated in exercise of powers under Section 190(1)(c) of Cr.PC and no fault can be found with the same.
6. Section 190 of Cr.PC reads as under:
"190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer or upon
his own knowledge, that such offence has
been committed.
(2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."-6-
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7. Cognizance of offence can be taken by the Magistrate under Section 190(1)(a) upon receiving a complaint of facts which constitute such offence. In the event the complaint received by the Magistrate does not contain sufficient ingredients to make out a prima facie offence, in exercise of his powers under Section 156(3) Cr.PC, the learned Magistrate can direct the jurisdictional police to investigate and submit a report. Alternatively, he can also exercise his powers under Section 202 of Cr.PC.
8. Section 190(1)(b) of Cr.PC provides that cognizance of offence by the Magistrate can be taken upon a police report of such facts. While taking cognizance under Section 190(1)(b) of Cr.PC, the Magistrate is not bound by the police report and in a given case he can reject the police report and proceed to take cognizance of the alleged offences on the basis of the evidence made available by the defacto complainant.
9. Section 190(1)(c) of Cr.PC provides for taking cognizance of an offence by the Magistrate upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. -7-
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10. In the present case, respondent no.2 has exercised his powers under the second part of Section 190(1)(c) of Cr.PC viz., upon his own knowledge that such offence has been committed.
11. Section 191 of Cr.PC provides that when a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of Section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused objects to further proceedings before the Magistrate taking cognizance of the case, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate.
12. A reading of Section 191 of Cr.PC makes it very clear that before any evidence is taken, option has to be given to the accused as provided under Section 191 Cr.PC. From a reading of Section 190(1)(c) of Cr.PC, it is apparent that it is only upon his own knowledge that an offence has been committed, the Magistrate can take cognizance of such offence and in the event of he taking cognizance, he is required to follow the procedure provided under Section 191 Cr.PC. -8-
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13. When Section 190(1)(c) of Cr.PC provides that it is only upon his own knowledge that an offence has been committed the Magistrate can take cognizance of such offence, he cannot refer the matter to the police under Section 156(3) Cr.PC for investigation. The powers under Section 156(3) of Cr.PC is required to be exercised when the material placed before the Court is not sufficient to take cognizance of the alleged offences. Section 191 Cr.PC provides that even before any evidence is taken, accused is required to be given an option as provided under Section 191 Cr.PC. Therefore, in my considered view, respondent no.2 was not justified in exercising his powers under Section 156(3) of Cr.PC and referring the matter to the jurisdictional police for investigation. If the learned Magistrate upon his own knowledge that offence has been committed intends to exercise his powers under Section 190(1)(c) of Cr.PC by a reasoned order he is required to take cognizance, issue summons to accused, and thereafter, proceed further as provided under Sections 191 & 192 of Cr.PC.
14. Under the circumstances, the order dated 21.06.2024 passed by respondent no.2 and the FIR registered in Crime No.31/2024 by Miryan Police Station against the petitioners -9- NC: 2024:KHC-K:5399 CRL.P No. 200852 of 2024 herein for the offences punishable under Sections 166, 465 & 466 IPC, cannot be sustained. Accordingly, the following order:
15. Petition is allowed. The order dated 21.06.2024 passed by respondent no.2 and the FIR registered in Crime No.31/2024 by Miryan Police Station against the petitioners herein for the offences punishable under Sections 166, 465 & 466 IPC, are quashed, with liberty to the learned Magistrate to proceed further in accordance with law, taking into consideration the observations made herein above.
Sd/-
(S.VISHWAJITH SHETTY) JUDGE KK