Karnataka High Court
Ramu vs State Of Karnataka on 17 November, 2017
Equivalent citations: 2018 CRI. L. J. (NOC) 184 (KAR.), 2018 (1) AKR 188
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
W. P. NOS. 48455-48458/2017
BETWEEN
1. RAMU,
AGED ABOUT 34 YEARS,
S/O KRISHNEGOWDA,
GIRIYANNAVARA HOUSE,
16TH CROSS, YADEYURU LAYOUT,
JAYANAGARA, BENGALURU.
2. NAVEEN,
AGED ABOUT 28 YEARS,
S/O SHIVARAM, NO.206,
AVALLAHALLI, OPPOSITE
VENKATESHWARA THEATRE,
GIRINAGARA, BENGALURU.
3. AJITH KUMAR,
AGED ABOUT 20 YEARS,
S/O MURUGESH,
NO.407, 9TH CROSS,
4TH MAIN, RAJENDRANAGAR,
BENGALURU.
4. ARUN,
AGED ABOUT 30 YEARS,
S/O MANJEGOWDA,
DANINGLA VILLAGE,
SHRAVANABELAGOLA HOBLI,
CHANARAYAPATNA TALUK,
HASSAN DIST., KARNATAKA ... PETITIONERS
(BY SRI. SWAMY K., ADV.)
2
AND
STATE OF KARNATAKA,
BY ASHOK NAGAR PS,
REP. BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001 ... RESPONDENT
(BY SRI. S. RACHAIAH, HCGP)
THESE W.P'S ARE FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA R/W 482 OF CR.P.C.,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.17901/2016 IN THE COURT OF THE
METROPOLITAN MAGISTRATE, TRAFFIC COURT-1, MAYO
HALL, BENGALURU AS AGAINST THE PETITIONERS FOR
OFFENCES PUNISHABLE UNDER SECTION 78[A], 6, 79
AND 80 OF THE KARNATAKA POLICE ACT, 1963 VIDE
ANNEXURE-C.
THESE W.P'S ARE COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners are arrayed as Accused Nos.1 to 4 in Crime No.67/2016 of Ashoknagar Police Station, for the offence punishable under section 78(A)(vi), 79 and 80 of the Karnataka Police Act.
2. These are the petitions filed u/s.482 of Cr.P.C. by the petitioners/accused persons praying to quash the proceedings initiated by the respondent - Police, against 3 the accused persons for the above said offences under the Karnataka Police Act, 1963 ( hereinafter referred to as 'KP Act' for short).
3. Before adverting to the grounds urged before this court by the learned counsel appearing for the petitioners, it is just and necessary to have the brief factual matrix of this case on which basis the charge sheet has been laid by the police before the Special Court.
4. It is the case of the prosecution that the petitioners/accused Nos.1 & 4 were playing illegal betting games by placing money in Fantastic-3 Dice Game at the Om Creation and Association Club, which is registered under the Societies Act, 1860, situated at No.383/2, Bazar Street, Nilasandra, Bengaluru. On the above allegations certain individuals were indulged in gambling, police raided the place, seized articles used for the said illegal activity and laid charge sheet for the offence punishable under section u/s.78(A)(6), 79 and 80 of the Karnataka Police Act (hereinafter referred to as 'Act' for short). After investigation, the Investigating Officer submitted charge sheet for the offence punishable under section 78(A)(VI), 4 79 and 80 of KP Act. After filing of the charge sheet, the JMFC Court took cognizance of the offence and ordered to register a criminal case against the accused.
5. Being aggrieved by the initiation of the Criminal proceedings against them, the above petitioners/accused have approached this Court for quashing of the said proceedings and the FIR.
6. 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.
7. On perusal of the records, 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 investigate the matter. They must refer the complaint to the jurisdictional Magistrate and take permission of the jurisdictional Magistrate to investigate the matter.
8. In this regard, it is worth to extract Section 155 of Cr.P.C. 1973, which reads thus:
5
"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, 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 6 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 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 7 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 all the above said cases, 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(3) of Karnataka Police Act. The Police without taking permission of the Magistrate directly proceeded to the spot with panch witnesses and seized the incriminating articles and also arrested some persons and thereafter coming back to the Police Station registered cases 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 8 thereafter presented the special report to the Magistrate for the purpose of taking permission, which is not the 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.
Accordingly, the Petitions are allowed. The proceedings initiated in Crime No.67/2016 registered by the Ashoknagar Police Station, and all further proceedings in CC No.17901/2016 on the file of the Court of Metropolitan Magistrate, Traffic Court-1, Mayo Hall, Bengaluru, against the petitioners are hereby quashed.
Sd/-
JUDGE PL*