Karnataka High Court
Basawaraj S/O Bhimshya Mattimood And ... vs The State Through on 30 May, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MAY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200559/2017
Between:
1. Basawaraj
S/o Bhimshya Mattimood,
Age: 37 Years,
Occ: ZP Member,
R/o CIB Colony,
Kalaburagi.
2. Lokesh S/o Chidanand Ambalagi,
Age: 27 Years, Occ: Student,
R/o Ram Nagar, Gulbarga
Tq. & Dist. Gulbarga.
... Petitioners
(By Sri. Avinash A. Uploankar, Advocate)
And:
The State through
Devadurga Police Station,
Dist. Raichur,
Now Represented by Addl. SPP,
High Court of Karnataka,
At Kalaburagi Bench.
... Respondent
(By Sri. Prakash Yeli, Addl. SPPP)
2
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying exercise inherent powers under Section 482
of Cr.P.C. examine the records and quash the proceedings in
CC No.225/2016 (Crime No.80 /2016 of Devadurga P.S.)
pending before the Civil Judge and CJM and Devadurga
against the petitioners.
This petition coming on for orders this day, the Court
made the following:-
ORDER
This petition is filed by the petitioners/accused No.2 and 3 under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.225/2016 (Crime No.80/2016 of Devadurga P.S.) for the offences punishable under Sections 78 (3) of Karnataka Police Act, 1963 (hereinafter referred to as 'K.P. Act'.) and Section 420 of IPC.
2. Brief facts of the case are that, on 30.3.2016 at about 7.10 PM on credible information the police have conducted a raid and there they noticed that the accused-petitioners along with other accused persons were cheating the public by collecting betting money in respect of World Cup Semi Final Cricket. Immediately, 3 accused persons were apprehended and petitioners and other accused persons ran away from the spot. Thereafter, the investigating agency conducted the seizure mahazar, seized articles and cash from the possession of the accused persons and a case came to be registered in the above said Crime number and subsequently after investigation, charge sheet came to be filed against the accused persons.
3. I have heard the learned counsel appearing for the petitioner and the learned Addl. SPP appearing for the respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that, the respondent- police after receipt of information has not taken the permission from the jurisdictional Magistrate as contemplated under Section 155 (2) of Cr.P.C, as such there is a procedural violation committed by the police. He would further contend that material on record does 4 not indicate that the petitioners have been involved in the said crime and the amount, which is said to have been seized had been kept by accused for his business purpose. It is further contended that petitioners were not present at the place of the raid. Except the statement of co-accused, no other material is available as against the present petitioner. It is further contended that Section 78 of K.P. Act falls under non-cognizable offence, then under such circumstances a case has been registered on the basis of credible information received by the police and registration of FIR and investigation has been done by the police are all fettered by Section 155(2) of Cr.P.C. and the entire proceedings are vitiated by serious illegality as the investigation done by the police is without the permission of the jurisdictional Magistrate. It is further contended that defect of non-taking of prior permission under Section 155 (2) of Cr.P.C. is not curable under Section 460 (b) of Cr.P.C. It is further contended that the charge sheet 5 submitted by the police cannot be treated as a complaint under Section 2(d) of Cr.P.C. On these grounds he prayed to allow the petition.
5. Per contra, the learned Addl. S.P.P. would submit that though Section 78(3) of K.P. Act is a non- cognizable offence under Schedule-II of Cr.P.C., nevertheless, the police are empowered to arrest the accused involved in such offences under Section 88 of K.P. Act. Therefore, the said offence is deemed to be a cognizable offence. Hence, no permission or warrant is required as contemplated under Section 155 (2) of Cr.P.C. The K.P. Act is a special Act. As per Section 4 and 5 of Cr.P.C Special Acts overrides general provision of Cr.P.C. It is further contended that there is no necessity for issuing any general or special orders in writing under Section 81 of the Act because, Section 81 only refers to nature of search etc. by the police officer in gaming house not in public streets as referred to in 6 Sec. 78 (3) of the Act. It is further contended that the police have investigated the case and charge sheet has been filed. Under such circumstances, it is not just and proper to quash the proceedings by exercising the power as contemplated under Section 482 of Cr.P.C. On these grounds, he prayed to dismiss the petition.
6. The factual matrix as I have already quoted supra. Undisputedly, the respondent-police after receipt of the credible information went to the spot and conducted raid on the said place and arrested some of the accused persons besides seizing certain articles including the cash for having committed the offences and thereafter came to the police station and registered the case and issued the FIR mentioning the offences under Sections 78 (3) of K.P. Act and Section 420 of IPC. Subsequently, after investigation, the charge sheet was came to be filed. This clearly indicates that soon after receiving the credible information even after the raid, 7 registration of the FIR, filing of the charge sheet, there is no change for the nature of the offences committed by the accused persons i.e., to say under Section 78 (3) of Cr.P.C. As per section 78 (3) of K.P. Act same is punishable for imprisonment which may extend to 3 months or with fine or which may extend to Rs.300/- or with both.
7. On plane reading of Section 78(3) of K.P. Act, it is crystal clear that the said offence false under Schedule-II of Cr.P.C and it is clearly a non-cognizable offence. Though Section 88 of the K.P. Act empowers the police to arrest the accused without warrant, it is only under peculiar circumstances where accused is likely to escape and immediate action is required, but that does not mean that it is having a overriding effect on other procedural mandates of the law. Therefore, at any stage police cannot arrest without warrant. Provision of Section 88 of the Act cannot be called as 8 unfettered or general power in nature nor it enables to convert a non-cognizable offence into a cognizable offence.
8. The record also indicates that no such permission has been taken as contemplated under Section 155(2) of Cr.P.C. If any such permission has not been taken, the investigation conducted without there being such permission is going to vitiate the entire investigation and on the basis of such investigation if the charge sheet is filed the same is considered to be not maintainable in law.
9. Though the learned Addl. SPP has brought to my notice the provisions of Sections 4 and 5 of Cr.P.C. and also Schedule-II of Cr.P.C. But, however the said provision are not attracted in view of the observation made in a decision reported in Moin Basha Kurnooli Vs. State of Karnataka reported in 2014 (4) KCCR 3355. When there is no order of compliance 9 under Sec.155 (2) of Cr.P.C. neither the police can investigate into the offence in question nor would submit a report, on which question of taking cognizance does not arise at all. Even though it is contended by the learned Addl. SPP to the effect that provisions of Sections 4 and 5 of Cr.P.C. are overrides the general provisions of Cr.P.C, but that particular condition is not applicable to the present case on hand.
10. The learned Addl. S.P.P., contended that at the time of investigation Section 420 of IPC is there, as such police can arrest the accused without warrant or permission.
11. But, as could be seen from the records though at initial stage in FIR Section 420 of IPC is mentioned, but at the time of filing of the charge sheet Section 420 of IPC has been deleted. In that context and also for the reasons discussed above, the 10 contentions of the learned Addl. S.P.P. is not acceptable in law.
12. Keeping in view the above aspects and also taking into consideration of the facts of the case on hand, I am of the considered opinion that the investigation conducted is in violation of provisions of Section 155 (2) of Cr.P.C. which goes to the root of the case. As such, the entire proceedings is liable to be quashed.
For the aforesaid reasons, the petition is allowed. The entire proceedings in C.C. No.225/2016 (Crime No.80 /2016 of Devadurga P.S.) pending before the Civil Judge and JMFC, Devadurga is hereby quashed.
Sd/-
JUDGE BL