Karnataka High Court
Nandihalli Krishnappa Valmiki vs The State Of Karnataka, on 6 June, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 6th day of June 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NOS.101064/2017, 101065/2017,
101066/2017, 101067/2017, 101068/2017
101069/2017, 101070/2017, 101071/2017,
101072/2017, 101073/2017, 101074/2017
AND 101075/2017
IN CRL.P NO 101064 OF 2017
BETWEEN
NANDIHALLI KRISHNAPPA VALMIKI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: 15TH WARD, M.M. HALLI,
HOSAPETE, DIST: BALLARI. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA,
PSI MARRIYAMMANAHALLI
POLICE STATION, BALLARI,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 15 OF 2017 (CRIME NO. 123
OF 2016) PENDING ON THE FILE OF ADDL. SENIOR CIVIL
2
JUDGE AND JMFC COURT, HOSAPETE, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101065 OF 2017
BETWEEN
NANDIHALLI KRISHNAPPA VALMIKI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: 15TH WARD, M.M. HALLI,
HOSAPETE, DIST: BALLARI. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI MARRIYAMMANAHALLI
POLICE STATION, BALLARI,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 16 OF 2017 (CRIME NO. 128
OF 2016) PENDING ON THE FILE OF ADDL. SENIOR CIVIL
JUDGE AND JMFC COURT, HOSAPETE, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101066 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH, DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
3
AND
THE STATE OF KARNATAKA
PSI GARAG POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 531 OF 2014 (CRIME NO. 7
OF 2014) PENDING ON THE FILE OF I ADDL. CIVIL JUDGE AND
JMFC, COURT DHARWAD, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P NO 101067 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH, DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI SUB URBAN POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 1252 OF 2015 (CRIME NO.
4
187 OF 2015) PENDING ON THE FILE OF PRL. CIVIL JUDGE AND
JMFC, COURT DHARWAD, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P NO 101068 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI VIDYAGIRI POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 1855 OF 2016 (CRIME NO.
203 OF 2015) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC-II, COURT DHARWAD, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101069 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ... PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
5
AND
THE STATE OF KARNATAKA
PSI DHARWAD RURAL POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 179 OF 2015 (CRIME NO.
206 OF 2014) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC-II, DHARWAD, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P NO 101070 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI DHARWAD VIDYAGIRI POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
6
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 1042 OF 2016 (CRIME NO.
186 OF 2015) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC-II, COURT DHARWAD, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101071 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI SUB URBAN POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C. NO. 581 NOF 2014 (CRIME NO.
69 OF 2014) PENDING ON THE FILE OF I ADDL. CIVIL JUDGE
AND JMFC, COURT DHARWAD FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
7
IN CRL.P NO 101072 OF 2017
BETWEEN
YUVARAJ,
S/O SANJU KALAL
AGE: 35 YEARS,
OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI DHARWAD TOWN POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE COMPLAINT AND FIR IN
DHARWAD TOWN POLICE STATION CRIME NO. 65 OF 2017
PENDING ON THE FILE OF II ADDL. CIVIL JUDGE AND JMFC,
DHARWAD, AS AGAINST THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101073 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
8
AND
THE STATE OF KARNATAKA
PSI DHARWAD RURAL POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 182 OF 2015 (CRIME NO.
245 OF 2014) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC-II, COURT DHARWAD, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 78(3) OF KARNATAKA POLICE
ACT 1963.
IN CRL.P NO 101074 OF 2017
BETWEEN
YUVARAJ S/O SANJU KALAL
AGE: 35 YEARS, OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ... PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI GARAG VIDYAGIRI POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
9
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 579 OF 2014 (CRIME NO. 20
OF 2014) PENDING ON THE FILE OF I ADDL. CIVIL JUDGE AND
JMFC, COURT DHARWAD, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
IN CRL.P NO 101075 OF 2017
BETWEEN
YUVARAJ,
S/O SANJU KALAL
AGE: 35 YEARS,
OCC: BUSINESS,
R/O: RAVIVAR PETH,
DHARWAD. ...PETITIONER
(BY SRI. M. L. VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI SUB URBAN POLICE STATION,
DHARWAD, REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SRI. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO. 327 OF 2016 (CRIME NO. 35
OF 2016) PENDING ON THE FILE OF PRL. CIVIL JUDGE AND
JMFC, COURT DHARWAD, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT 1963.
THESE PETITIONS COMING ON FOR ADMISSION THIS
DAY, THE COURT, MADE THE FOLLOWING:
10
Common Order
Since common questions of law and facts are involved in all the above petitions, they are taken up together to dispose of them by this common order.
2. These are the petitions filed under Section 482 of the Code of Criminal Procedure by the respective accused persons praying the Court to quash the proceedings initiated by the respective police stations against the said accused persons for the offences under Section 78(3) of the Karnataka Police Act, 1963 (for short, 'the KP Act').
3. Regarding details of the above petitions, the same is furnished in the chart, which are as under:
Sl. Criminal Crime No. and Police Charge C.C. number No Petition Station and offences sheet and the Court No. offences 1 101064 of 123/2016 78(3) of 15/2017 2017 Marriyammanahalli K.P. Act Addl. Senior Police Station, Ballari. Civil Judge 78(3) of KP Act & and JMFC, 420 of IPC Hospet.
2 101065 of 128/2016 78(3) of 16/2017
2017 Marriyammanahalli K.P. Act Addl. Senior
Police Station, Ballari. Civil Judge
78(3) of KP Act & and JMFC,
420 of IPC Hospet.
11
3 101066 of 7/2014 78(3) of 531/2014
2017 Garag Police Station, K.P. Act I Addl. Civil
78(3) of KP Act. Judge & JMFC
Dharwad.
4 101067 of 187/2015 78(3) of 1252/2015
2017 Sub-Urban Police K.P. Act Prl. Civil
Station, Judge and
78(3) of KP Act JMFC,
Dharwad.
5 101068 of 203/2015 78(3) of 1855/2016
2017 Vidyagiri Police K.P. Act II Addl. Civil
Station. Judge and
78(3) of KP Act and JMFC,
420 & 489B and 34 of Dharwad.
IPC
6 101069 of 206/2014 78(3) of 179/2015
2017 Rural PS, Dharwad. K.P. Act II Addl. Civil
78(3) of KP Act Judge and
JMFC-II,
Dharwad.
7 101070 of 186/2015 78(3) of 1042/2016
2017 Vidyagiri Police K.P. Act II Addl. Civil
Station, Judge and
78(3) of KP Act & JMFC-II,
420 of IPC Dharwad.
8 101071 of 69/2014 78(3) of 581/2014
2017 Dharwad Sub-Urban K.P. Act I Addl. Civil
Police Station. Judge and
78(3) of KP Act & JMFC,
Dharwad.
9 101072 of 65/2017 Charge II Addl. Civil
2017 Town Police Station, sheet not Judge and
Dharwad. yet JMFC,
78(3) of KP Act submitted Dharwad.
10 101073 of 245/2014 78(3) of 182/2015
2017 Dharwad Rural Police K.P. Act II Addl. Civil
Station. Judge and
78(3) of KP Act JMFC-II,
Dharwad.
11 101074 of 20/2014 78(3) of 579/2014
2017 Garag Police Station, K.P. Act I Addl. Civil
Dharwad. Judge and
78(3) of KP Act JMFC,
Dharwad.
12
12 101075 of 35/2016 78(3) of 327/2016
2017 Dharwad Sub-Urban K.P. Act Prl. Civil
Police Station. Judge and
78(3) of KP Act JMFC,
Dharwad.
4. Brief facts of the prosecution case, in all the above petitions, are that the petitioner/accused committed the offence punishable under Section 78(3) of the KP Act and also the offence under Section 420 of the Indian Penal Code in some of the above cases. After investigation, the Investigating Officer submitted chargesheet for the offence under Section 78(3) of the KP Act and dropped Section 420 of IPC in some of the above cases, and in the case in Criminal Petition No.101072/2017, only the crime for the offence under Section 78(3) of the KP Act is registered by the police and the chargesheet is not yet submitted. After filing of the chargesheet, the JMFC Court took cognizance of the offence and ordered to register a criminal case against the accused. Being aggrieved by initiation of the criminal proceedings against them, the above petitioners/accused have approached this Court by filing 13 the above petitions seeking quashing of the said proceedings and the FIR.
5. Heard the arguments of the learned counsel appearing for the petitioners/accused in respect of all the petitions and the learned High Court Government Pleader appearing for the respondent-State.
6. Sri. M.L. Vanti, learned counsel appearing for the petitioner, while arguing the case, firstly, submitted that the offence alleged under Section 78(3) of the KP Act is a non-cognizable offence and hence, before proceeding to investigate the matter, the Investigating Officer or the police machinery are required to comply with the mandatory requirements of Section 155(2) of the Code of Criminal Procedure. He submitted that it is the case of the prosecution that permission is obtained in some of the cases, but looking to the order of the learned Magistrate, it is only mentioned in the order as 'Permitted'; there is no application of mind by the learned Magistrate and there is no speaking order or a detailed order passed taking into 14 consideration the factual aspects involved in the case.
Hence, he submitted that mere mentioning as 'permitted', it will not amount to permission as required under Section 155(2) of Cr.P.C. He also made the submission that the offence alleged is a non-cognizable offence as per First Schedule, II of Cr.P.C., and, in this regard, this Court has taken a view, by referring to the said schedule of Cr.P.C. and also referring to provisions in the KP Act, ultimately held that the offence under Section 78(3) of the KP Act is a non-cognizable offence. Hence, he submitted that mandatory requirements are not at all complied with by the police before proceeding to investigate the case.
Secondly, he submitted that looking to the materials in respect of the above cases, as per the information said to have been received by the police, the police, along with panchas, is said to have proceeded to the spot; apprehended the accused persons, who were found at the place; seized the materials like amount, pen, matka chits etc.; drew a mahazar; and thereafter, they went back along with the accused person to the police station and 15 registered a complaint; and therefore, the complaint is hit by Section 162 of Cr.P.C. and, in reality, it cannot be considered as a 'complaint', but it only amounts to a statement, which is said to have been recorded during the investigation.
Thirdly, he submitted that, in some of the cases, the crime is registered not only for the offence under Section 78(3) of the KP Act, but also for the offence under Section 420 of IPC, and, in this regard, the learned counsel submitted that though the alleged offence under Section 420 of IPC is not at all committed in the said cases by any of the accused, only to overcome the mandatory requirement of Section 155(2) of Cr.P.C., the alleged offence under Section 420 of IPC is added in the case at the time of registration of the case. He also made the submission that sofar as the alleged offence under Section 420 of IPC is concerned, absolutely, there was no material while registering the FIR; there was no complaint by anybody that they have been cheated by any of the above mentioned accused persons. It is also his further 16 contention that, while filing the chargesheet, the chargesheet was filed only for the offence under Section 78(3) of the KP Act and it was dropped for the offence under Section 420 of IPC. Hence, it is his submission that, except in one or two cases, even though no material was found sofar as the alleged offence under Section 420 of IPC is concerned, the crime was registered also for the offence under Section 420 of IPC and while submitting the chargesheet the alleged offence under Section 420 of IPC was dropped and this clearly goes to show that it was included while registering the case only for the purpose of overcoming the mandatory requirements of Section 155(2) of Cr.P.C.
Fourthly, he submitted that Section 78(3) of the KP Act is made applicable to such accused who are found at the spot of gaming, and, in this regard, he submitted that only in respect of two of the above cases, it is mentioned that the accused persons ran away, but in rest of the cases, it is an admitted fact, even according to the 17 prosecution, that the accused were not at all present at the spot.
Therefore, the learned counsel for the petitioners/accused submitted that considering all these aspects of the matter, there is no case made out as against the present petitioners and unnecessarily they have to face the trial before the Trial Court which a sheer waste of time and energy of the Court and the FIR are without any prima facie material and the initiation of the proceedings are abuse of process of the Court. Hence, the learned counsel submitted to allow all the petitions and to quash the proceedings.
7. Per contra, the learned High Court Government Pleader made the submission that as per Section 88 of the KP Act, a police officer is authorised to arrest the accused persons without warrant. In view of the same and as it is a special enactment this itself clearly go to show that the offence alleged is a cognizable offence and it cannot be a non-cognizable offence. He further made the submission 18 that looking to the complaint and FIR registered in the case they clearly go to show that there is a prima facie material collected by the prosecution. The police officer visited the spot immediately after the receipt of the information and they drew panchanama, arrested some of the accused, seized materials found at the place and then after going to the police station they have registered the FIR. Hence, he made the submission that when there is a prima facie material collected by the prosecution, the proceedings cannot be quashed by invoking Section 482 of Cr.P.C. He also submitted that when mandatory requirements of Section 155(2) are not at all required in these cases, non-obtaining of permission in some of the above cases is not fatal to the case of the prosecution. Learned Government Pleader further made the submission that at least in some of the cases prior permission was obtained by the police machinery from the concerned Magistrate Court before proceeding to conduct investigation in the matter. Hence, he submitted that considering all these aspects of the matter, it cannot be 19 said that the case of the prosecution is either groundless or is without any prima facie and as such it cannot be said that the initiation of proceedings is an abuse of process of the Court. Hence, the learned Government Pleader made the submission that there is no merit in any of the above cases and they are to be rejected.
8. I have perused the grounds urged in the petitions and also the copy of the complaints, FIRs registered in the above mentioned cases. Looking to the chart provided in respect of each of the offences, it is no doubt true that in some of the cases, the police, apart from registering the cases for the offence under Section 78(3) of the KP Act, have also registered the case for the offence under Section 420 of IPC also, and in some of the other cases FIR is registered only for the offence under Section 78(3) of the KP Act.
9. Regarding the controversy between the petitioners and the prosecution with reference to the nature of the offence under Section 78(3) of the KP Act and the 20 proceedings initiated on that basis, I have perused Section 88 of the KP Act, which reads as under:
" 88. Power to arrest without warrant persons gaming in public places. -- A police officer may arrest and search without warrant, any person gaming or reasonably suspected to be gaming in contravention of sub-section (3) of section 78 or Section 87."
In this connection, I have also referred to First Schedule, II - regarding classification of the offence in respect of other laws are concerned. This Court, in a batch of criminal petitions in Crl. P. No.100319/2014 and other connected matters, disposed of on 25.07.2014, by making a detailed discussion with regard to the said schedule appended to Cr.P.C. and also Section 88 of the KP Act, ultimately came to the conclusion that the offence under Section 78(3) of the KP Act is a non-cognizable offence. The said decision is reported in decision 2014(4) KCCR 3355 (Moin Basha Kurnooli Vs. State of Karnataka). Against the said order passed by the learned single Judge of this Court, no appeal has been preferred by the prosecution uptill now. By 21 detailed discussion referring to the provisions of the KP Act as well as the Schedule appended to the Code of Criminal Procedure, it is clearly held that the offence under Section 78(3) of the KP Act is a non-cognizable offence. When that is so, at least, sofar the case registered only for the offences under Section 78(3) of the KP Act, which is a non- cognizable offence, prosecution ought to have obtained prior permission of the learned Magistrate Court before proceeding with the investigation in such cases. Admittedly, in some of the above cases, no such permission was obtained by the police machinery from the concerned Magistrate Court. Though it is the contention of the prosecution that permission was obtained in some of the case, looking to the order of the learned Magistrate, it is simply mentioned as "permitted". The said order does not refer to the factual aspects of the case; there are no reasons recorded by the learned Magistrate as to how he has come to the conclusion with regard to the alleged offences and how the permission was given to the police to proceed with the investigation. Therefore, even if it is 22 mentioned as "permitted", the same cannot be considered that it is a reasoned order passed by the learned JMFC in compliance with Section 155(2) of Cr.P.C.
10. In some of the cases, complaint is registered not only for the offence under Section 78(3) of the KP Act, but also for the offence under Section 420 of IPC, and in one of the above cases, the complaint is registered for the offence under Section 78(3) of the KP Act and so also for the offence under Sections 420 and 489B read with Section 34 of IPC. It is no doubt true that out of the alleged offences if one of the offences is a cognizable offence, then in that case obtaining prior permission from the learned Magistrate, in compliance of Section 155(2) of Cr.P.C., is not at all required and police can proceed to investigate the matter without such prior permission. But the question is, whether really, there was an offence committed by the accused persons under Section 420 of IPC or under Section 489B of IPC is a matter for consideration. Looking to the chart furnished above, in 23 almost all cases, except in one case, investigation has already been completed and chargesheet has been filed and all those chargesheets submitted are only in respect of the offence under Section 78(3) of the KP Act. In none of the above mentioned case, chargesheet is filed for the offence under Section 420 of IPC. As rightly submitted by the learned counsel for the petitioners, this goes to show that registration of the crime for the offences under Section 420 of IPC or under Section 489B read with Section 34 of IPC is only with an intention to overcome the mandatory provisions of Section 155(2) of Cr.P.C. If the police found that in one or two cases they did not found the material for the alleged offence under Section 420 or under Section 489B read with Section 34 of IPC, that can be appreciated and understood. But, in almost all the cases, the chargesheet is filed only for the offence under Section 78(3) of the KP Act and offence under Section 420 of IPC was dropped, and this clearly goes to show that initiation of the proceedings even for the offence under 24 Section 420 is with a malafide intention only to overcome the mandatory requirements.
11. Apart from that, even if it is assumed for the sake of appreciation that there was also offence committed under Section 420 of IPC or under Section 489B read with Section 34 of IPC then even in that case, as per the decision of the Hon'ble Apex Court in the case of Lalita Kumari vs Govt. Of U.P.& Ors reported in (2014)2 SCC 1 the requirement of Section 154 of Cr.P.C. has to be complied. It is the observation of their Lordship, in the said decision, that if, in respect of cognizable offence, information is received by the police, it has to be entered in the concerned register of the police station immediately without loss of time so that there cannot be any scope for manipulation in the said case. If the contention of the prosecution that, while registering the case there was information about commission of Section 420 of IPC is taken into consideration, then the prosecution is required to place the material before the Court that they had 25 entered the said information immediately in the concerned register of the police station without wasting any time. But admittedly, no such material is placed before the Court showing that it was entered in the concerned register. Therefore, even if it is taken that the offence is cognizable offence and hence there was no necessity to obtain prior permission as per Section 155(2) of Cr.P.C., compliance of Section 154(1) is also equally mandate of law as observed by their Lordships. It is not done in these cases.
12. The offence alleged against the above mentioned accused persons is under Section 78(3) of the KP Act. Looking to the said provision, it starts with the words "Whoever is found gaming on any of the objects specified in sub-section (1)". So it goes to show that for application of the provisions of Section 78(3) of the KP Act, the accused persons must be found at the place and that is the requirement of the said provision. But in the above mentioned cases, and, as observed in two of the above cases, it is mentioned by the police that accused 26 persons ran away and in rest of the cases, the accused persons were not at all found at the place. Therefore, even the mandatory requirements of Section 78(3) of the KP Act is not said to be complied with for initiation or registration of the FIR as against the accused persons.
13. Looking to the materials placed on record, in almost all the cases, it is the case of the prosecution that, immediately after the receipt of the information, the police along with panch witnesses proceeded to the spot they apprehended the accused, who were present, and then seized the materials like money, pen, matka chits etc., at the spot, in the presence of panch witnesses, drew mahazar and, thereafterwards, they went back to the police station and registered the complaint. Looking to these aspects of the matter and as submitted by the learned counsel for the petitioners, the entire investigation is said to have been completed by the time the police went back to the police station and registered the complaint. Therefore, the counsel for the petitioner is 27 justified in his submission that it cannot be the first information and it is hit by Section 162 of Cr.P.C. and that it can be treated as a statement recorded under Section 161 of Cr.P.C. during investigation. I have also considered the decision of this Court referred to above and the order passed by this Court in a batch of criminal petition in Crl. P. Nos.3365/2016 and connected matters disposed of on 07.04.2017 wherein all the contentions of the parties were taken into consideration and by making an elaborate discussion, the proceedings in the said cases were also quashed by allowing the petitions. Therefore, considering all the above aspect of the matter, the petitioners have made out a case to allow the petitions and looking to the prosecution material, firstly, there is no compliance of mandatory requirements and secondly it appears that the police machinery have filed such cases without there being any sufficient material and it is only with intention to involve the above petitioners in the said cases, unnecessarily to face the criminal trial. It is nothing but abuse of process of the Court. Hence, all the 28 above petitions are allowed. The FIRs and the proceedings initiated against the petitioner/s herein in the criminal cases, the details of which are mentioned in the table at para 3, are hereby quashed.
Sd/-
JUDGE Kms