Karnataka High Court
Yuvaraj Sanjeeva Kalal vs The State Of Karnataka on 22 February, 2019
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 22 N D DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITIO N NO.101065/2018
BETWEEN:
1. YUVARAJ SANJEEVA KALAL
AGED ABOUT 36 Y EARS,
OCC: BUS INESS,
R/O. RAVIVARPETH,
MADANSHETTY ONI, DHARWAD.
2. BASAVARAJ
S/O. PA TTREPPA JANGANNAVAR
AGED ABOUT 62 Y EARS,
OCC: COOLIE,
R/O.MADIHAL, DHARWAD.
3. RAJU
S/O. BADRAPPA JANAVADKAR
AGED ABOUT 54 Y EARS,
OCC: BUS INESS,
R/O. GULAGONJIKOPPA,
GOUDAR ONI, DHARWAD.
4. SANGAPPA S/O. VIRAPPA KUMBAR
AGED ABOUT 59 Y EARS,
OCC: AGRICULTURE,
R/O. SHELAVADI VILLAGE,
PRESENT MADHIHAL, DHARWAD.
5. RAJU SANJEEVA KALAL
AGED ABOUT 36 Y EARS,
2
OCC: BUS INESS,
R/O. DHARWAD.
6. SACHIN SANJEEVA KALAL
AGED ABOUT 42 Y EARS,
R/O. DHARWAD.
... PETITIONERS
(BY SRI M L VANTI, ADVOCA TE.)
AND:
THE S TA TE OF KA RNATAKA
PSI DHARWAD TO WN POLICE S TA TION,
DHARWAD, DIS T:D HARWAD,
REP. BY S TA TE PU BLIC PROSECU TO R,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP.)
THIS CRIMINAL PETITION IS F ILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE COMPLAINT AND FIR
REGIS TERED IN DHARWAD TOWN POLICE S TA TIO N
CRIME NO .39/2018 PENDING ON TH E FILE OF II ADDL.
CIVIL JUDGE AND JMFC, DHARWAD, FOR TH E
OFFENCE PUNISHABLE UNDER SECTION 78(VI)(B) OF
KARNATAKA POLICE ACT 1963 AND SECTION 420, 511
READ WITH SECTION 34 OF IPC, ETC.,.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLO WING:
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ORDER
Heard the arguments of the petitioners' counsel and the HCGP for respondent State.
2. The factual matrix of the case is that, on a credible information received on 3.5.2018, when the complainant was on duty, at about 15.45 hours, near Gaikwad Kalyan Mantap in M.B.Pawar's house some persons are indulged in playing 'matka' and immediately secured permission from the learned Magistrate and as per the directions of higher officers, secured two panchas along with other officers visited to the spot at around 19.00 hours in a Government vehicle and on visiting the spot, they saw the persons moving here and there and some persons speaking over phone and immediately raiding team intercepted accused No.1 to 4 and accused No.4 and 6 ran away from the spot and 4 seized an amount of `3,480/- and other articles and panchanama was drawn and a case has been registered. The petitioners being aggrieved by the registration of the case, they have approached this Court seeking an order to quash the crime No.39/2018 for the offence punishable under section 78(VI)(b) of the Karnataka Police Act, 1963 and section 420, 511 read with section 34 of IPC.
3. The petitioners mainly contended in the petition that there is no information received by the police for the offences punishable under Sections 420 and 34 of IPC from the person to whom the petitioners has cheated. Further investigation Agency with malafide intention has purposely registered the case to overcome the mandatory provision of Section 152(2) of Cr.P.C. and proceeded to alleged raid. The very registration of FIR for the offence punishable under 5 Section 420 and 34 of IPC is erroneous and thus, the prior permission as contemplated under Section 152(2) of Cr.P.C. is a must and without there being any permission to investigate, a report was filed as such the entire proceedings vitiates and liable to be quashed.
4. The other contention that on perusing the entire complaint there is no material to show that petitioners have cheated some persons and it is nothing but an abuse of process and invoking the offence of cheating and further contend that the very registration of the complaint and entire search seizure conducted by the investigation officer is hit by Sections 154 and 162 of Cr.P.C. and same is against the law laid down by the Apex Court in the case of Lalita Kumari Vs.Government of U.P. and others, reported in 2014 SCC (2) 1.
5. The other contention that the very initiation of proceeding against the petitioners that without there 6 being any material to show that alleged offence infringe the personal liberty of petitioners guaranteed under Article 21 of the Constitution of India and no purpose would be served if they are asked to face the trial. Further contended that the very act of the police was challenged in number of batch matters in Crl.P.Nos.3365/12016 and also this Court has quashed the proceedings. Hence, the very initiation of proceedings is liable to be quashed.
6. The petitioners' counsel in support of his contention he contends that there is no any ingredient of offence in respect of Sections 420 and 511 of IPC and in respect of the offence under Section 78(VI)(b) of the Karnataka Police Act, 1963, and the same is non cognizable offence and mandatory provision of Section 155(2) is not complied and hence, prayed this Court to quash the preceding.
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7. Per contra, the learned HCGP in his arguments he contends that as soon as the complainant has received the information he has approached the concerned Jurisdictional Magistrate and obtained the permission and thereafter, conducted the raid and registered the case for the offence punishable under Sections 78(VI)(b) of the Karnataka Police Act, 1963 and section 420, 511 read with section 34 of IPC and now the investigation has been completed and filed charge sheet only in respect of the offence under Section 78(VI)(b) of the Karnataka Police Act, and left the Sections 420 and 511 of IPC and permission has been taken from the Magistrate and hence, the petitioners are not entitled for any relief at the hands of this Court, and hence, prayed this Court to reject the petition.
8. Having heard the arguments of petitioners' counsel and also the learned HCGP this Court has to 8 examine whether this Court can exercise the powers under Section 482 of Cr.P.C. to quash the proceedings.
9. Having heard the contention of petitioners' counsel and also the learned HCGP and also on perusal of the material on record, it discloses that the information is received that these petitioners are indulged in playing Mataka and hence, permission was sought from the Magistrate and conducted raid. On perusal of the material placed before this Court by the HCGP, no doubt the I.O. has approached the Magistrate and sought permission vide letter dated 3/5/2018 and on perusal of the said letter an endorsement is made on the said letter by the Magistrate and there is no any reference of applying his mind and passing any speaking order except the endorsement and hence, the same is not inconsonance with the very proviso of Section 155(2) of Cr.P.C. It is also contended only in order to register the case invoking Section 154 of 9 Cr.P.C., offence under Sections 420 and 511 was invoked and admittedly now the charge sheet is filed only in respect of the offence under Section 78(VI)(b) of the Karnataka Police Act, and hence, it is clear that the offence is non cognizable offence and the mandatory provision of Section 155(2) of Cr.P.C. has not been complied and though permission is taken and the same is not in accordance with law and it is not a speaking order. Hence, the very imitation of proceedings against the petitioners is liable to be quashed.
10. Learned HCGP appearing for the State contends that they are the habitual offenders and there are 15 cases are registered against them. Petitioners' counsel also submit that in some more cases due to non compliance of mandatory provision initiation of proceedings against the petitioners is quashed and in spite of that they are the habitual offenders the State is 10 not proceeding in accordance with law. Hence, the very submission of the HCGP that they are the habitual offenders cannot be accepted, since there is an infirmity under the law with regard to the initiation of proceedings against the petitioners.
11. Hence, I pass the following:
ORDER The petition is allowed.
The complaint and FIR registered in Crime No.39/2018 is quashed.
SD/-
JUDGE Mrk/Vmb/-