Karnataka High Court
Sri.Lokesh vs State Of Karnataka By on 23 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:27779
CRL.P No. 10114 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 10114 OF 2025
BETWEEN:
1. SRI.LOKESH
S/O BASAVARAJU AGED ABOUT 41 YEARS, R/AT
BOODANOOR VILLAGE, RAMANATHAPURA HOBLI,
ARKALGUD TALUK,
HASSAN DISTRICT-573130
2. SRI.PRADEEP. M
S/O LATE MADESHA AGED ABOUT 28 YEARS, R/AT
HALE NAYAKARA BEEDHI, NEAR JAMIA MASJID,
BANNUR TOWN, T.N PURA TALUK, MYSORE
DISTRICT-571101
...PETITIONERS
(BY SRI. ABHAY R.S.,ADVOCATE)
Digitally signed AND:
by
SHARADAVANI
B
Location: High
Court of 1. STATE OF KARNATAKA BY
Karnataka
MANDI POLICE STATION, MYSORE REP BY STATE
PUBLIC PROSECUTOR, HIGH COURT COMPLEX,
BENGALURU 560001.
2. SRI VISHWANATHA K
POLICE SUB INSPECTOR,
AGED ABOUT MAJOR,
MANDI POLICE STATION,
MYSORE 570001
...RESPONDENTS
(BY SMT. SOWMYA R. HCGP FOR R1 & R2)
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NC: 2025:KHC:27779
CRL.P No. 10114 of 2025
HC-KAR
CRL.P FILED U/S 482 CR.P.C (U/S 528 BNSS) BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO QUASH THE
ENTIRE CRIMINAL PROCEEDINGS INITIATED AS AGAINST
THE PETITIONER NOs.1 AND 2 IN CC.NO.8614/2022
ARISING OUT OF CR.NO.68/2021 FILED BY RESPONDENT
NO.1 MANDI P.S., MYSORE, PENDING ON THE FILE OF II
JMFC COURT, AT MYSORE, FOR THE OFFENCES P/U/S 32
OF KARNATAKA EXCISE ACT, U/S 51(b) OF THE DISASTER
MANAGEMENT ACT, U/S 188 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioners seek the following reliefs:
"Wherefore the petitioner No.1 most humbly pray that this Hon'ble Court may kindly be pleased to quash the entire criminal proceedings initiated as against the petitioner No.1 and 2 in CC No.8614/2022 (CRIME No.68/2021) pending on the file of II JMFC Court at Mysore filed by respondent No.1 Mandi police station, Mysore for the offences punishable under Sections U/s.,32 of Karnataka Excise Act and U/s 51(b) of the Disaster Management Act and U/s 188 of IPC in the interest of justice and equity."
2. Heard.
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3. A perusal of the material on record will indicate that the respondents registered FIR in Crime No.68/2021 dated 15.8.2021 for the offence punishable under Section 32 of Karnataka Excise Act, Section 51(b) of the Disaster Management Act and Section 188 of IPC against the petitioners.
4. In pursuance of the said complaint, the respondents have filed a charge sheet, which is currently pending in CC No.8614/2022 before the Trial Court.
5. A perusal of the material on record will indicate that insofar as the offence punishable under Section 32 of the Karnataka Excise Act is concerned, before conducting the impugned search and seizure, whereby the alleged liquor bottles from the petitioners were seized, the respondents had not obtained any search warrant, so also, necessary reasons to believe had not been recorded in writing so as to dispense with the obtaining of search warrant as mandatorily required under Section 54 of -4- NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR Karnataka Excise Act. This Court in the case of Shiva Kumar -vs- The State of Karnataka and anr. in Crl.P No.5879/2024 (DD 21.1.2025) reads as under:
"In this petition, the petitioner-accused seeks quashing of the impugned proceedings in C.C. No.993/2023 on the file of the Principal Civil Judge and JMFC., Hoskote, Bengaluru Rural District against the petitioner for the offences punishable under Sections 11, 12, 14, 32 and 38A of the Karnataka Excise Act, 1965.
2. Heard learned counsel for the petitioner and learned High Court Government Pleader for respondents and perused the material on record.
3. In addition to reiterating the contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that, before conducting the impugned search and seizure on 05th June, 2021, whereby, the respondents are alleged to have seized the liquor bottles from the petitioner, it was incumbent upon the respondents to either obtain a warrant or record reasons to believe in writing so as to dispense with the obtaining of warrant as mandated under Section 54 of the Karnataka Excise Act. In this context, it is submitted that, in the absence of reasons to believe recorded in writing so as to dispense with the requirement of obtaining of warrant, the impugned proceedings resulting in seizure of liquor bottles from the petitioner and culminating in the impugned F.I.R. and charge sheet are contrary to the aforesaid provisions and the same deserves to be quashed.
4. Secondly, learned counsel for the petitioner invited my attention to the impugned F.I.R. and charge sheet in order to point out that before registering the F.I.R., it was incumbent upon the respondents to file a report. In this regard, it is submitted that, except conducting search and seizure on 05th June, 2021 and drawing up a mahazar, -5- NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR a separate report in this regard was not filed by the respondents before registration of F.I.R., which would also vitiate the impugned F.I.R. and charge sheet. In support of his submission, learned counsel for the petitioner placed reliance on the judgment of this Court in the case of DAYANANDA @ R. BABU AND ANOTHER vs. THE STATE OF KARNATAKA REP. BY EXCISE SUB- INSPECTOR, HUNSUR RANGE in Criminal Revision Petition No.129 of 2021 disposed of on 04th April, 2024 and in the case of CHENGAPPA M.S. vs. THE STATE BY EXCISE POLICE STATION, HUNSURU in Criminal Petition No.10259 of 2021 disposed of on 22nd March, 2024.
5. Per contra, learned High Court Government Pleader for respondents submits that there is no merit in the petition and the same is liable to be dismissed.
6. A perusal of the material on record will indicate that the learned counsel for the petitioner is correct in his submission that before conducting the impugned search and seizure, whereby, the alleged liquor bottles from the petitioner were seized, the respondents had not obtained any search warrant; so also, necessary reasons to believe had not been recorded in writing so as to dispense with the obtaining of search warrant as mandatorily required under Section 54 of the Karnataka Excise Act.
7. Under identical circumstances, the Co-ordinate Bench of this Court held as under:
In Criminal Petition No.10259/2021.
"ORDER This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019- 20/2610SIE1/261010 registered by Karnataka Excise Department, Hunsur Sub-Division, Hunsur, Mysuru, for the -6- NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR offences punishable under Sections 11, 14, 32, 34, 43(A) of Karnataka Excise Act, 1965 (for short 'K.E. Act').
2. Heard the learned counsel appearing for the petitioner and learned High Court Government Pleader for respondents.
3. The case of the complainant is that he received information from one R. Somashekhar, Assistant Horticulture Officer, HD Kote Taluk SST-2, who was working in the temporary check post of Manuganahalli, alleging that on 16.11.2019, the election code of conduct was in force and during 2019 Karnataka Assembly Elections, Hundai Crerta 4 wheel vehicle was carrying liquor. When the vehicle was searched around 3.50 p.m., 12 bottles of 750 ML Morpheus XO Blended Premium Brandy were apprehended. After the receipt of intimation, the excise inspector along with team went to the spot, seized the liquor and the car, and thereafter, went to the police station and registered FIR and in turn, filed charge sheet which is under challenge.
4. Learned counsel for the petitioner has contended that there is violation of Sections 53 and 54 of the K.E. Act. Without recording reasons, the respondent has arrested the petitioner and seized the liquor and produced before the Court. There is no reference in the FIR of recording reasons, but in the spot mahazar, the respondent has subsequently added the record of reasons, and the respondents have not obtained warrant under Section 53 of the K.E. Act. Therefore, seizing the articles, registering the FIR without recording reasons and commencement of investigation, is violation of the provisions of the K.E. Act. Therefore, the FIR is not sustainable. Hence, prayed to allow the petition.-7-
NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR In support of his arguments, the learned counsel has relied up on the following judgments of the Hon'ble Supreme Court and this Court:
(i) K.L. Subbayya Vs. State of Karnataka - (1979) 2 SCC 115.
(ii) L Srinivas Vs. The Authorised Officer and another - ILR 1999 KAR 2872.
(iii) Sri. Abhijeet Lalchand Landge And Others Vs. State of Karnataka And Another in Criminal Petition No.5855/2019 Dated on 26.11.2019.
(iv) Kumar vs. State of Karnataka And Another in Criminal Petition No.8658/2019 Dated on 08.01.2020.
(v) Babu Naika And Others Vs. State of Karnataka in Crl.R.P. No.52/2014 decided on 09.03.2020.
5. Per contra, learned High Court Government Pleader has opposed the petition and contended that the respondent, after following all the procedures, has arrested the petitioner and therefore, prayed for dismissing the petition.
6. Having heard the learned counsel appearing for the parties, perused the records.
7. On perusal of the records, it is clear that one Somashekhar, Assistant Horticulture Officer, gave an intimation to the Excise Inspector that at 3.50 p.m., they apprehended the person having liquor of 10 bottles of brandy, without permit or licence, which is in violation of the provisions of the K.E. Act. The Excise Inspector seized the articles under Panchanama and thereafter, came to the police station and registered FIR.
8. The contention of the petitioner is that though in the panchanama, it is mentioned that FIR was prepared after recording the reasons for not obtaining the warrant under Section 53 of the K.E. Act, there is possibility of the accused flee away -8- NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR from the case and escape from the clutches of law. Record of reasons to be recorded before obtaining the warrant. In FIR, it is stated that the Excise Inspector came to the spot, seized the car and apprehended the accused and came to the office and registered FIR. There is no mention about reducing into writing of reasons or not recording reasons under section 54 of the K.E. Act, which is mandatory.
9. As per Section 53 of the K.E. Act, in any case, there is apprehension by the officer that there is chance of accused fleeing away from the justice, the question of coming to the Court for obtaining warrant, does not arise. Here, in this case, there is an electron officer in the check post and he has already caught the accused red hand and kept in his custody. Therefore, Excise Inspector is required to obtain the warrant under Section 53 of the K.E. Act as there is no chance of the petitioner flee away from the spot.
10. That apart, either in the complaint or in the FIR, which is registered by the respondent-complainant, he has not whispered anything about the record of reasons for visiting the spot or apprehending the accused, whereas in the panchanama, the record of reasons is mentioned and it was reduced into writing, thereafter, went to the spot. The record of reasons has not accompanied with the FIR in order to show that the complainant has obtained warrant before registering the FIR. He visited the spot and registered the FIR. There is clear violation of the provisions of the K.E. Act. There is no mention in the FIR for not obtaining warrant, but it is mentioned in panchanama and it is only after thought. It is not sent immediately after the seizure along with PF and FIR. Such being the case, the panchanama appears to be created by the investigation officer after filing of the charge sheet or before filing of the charge sheet. The entire -9- NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR bottles were not sent to the examination and only four bottles were sent. Here also, the violation of the provisions of the K.E. Act is found.
11. This Court, in the case of DAMERA UPENDRA RAO AND ANOTHER VS. STATE BY EXCISE DEPARTMENT POLICE in Criminal Petition No.2121/2022 decided on 14.12.2022, has considered the aforesaid aspect and quashed the proceedings. Further, in the case of G. PUTTARAJU Vs. STATE OF KARNATAKA AND ANOTHER in Writ Petition No.20816/2023 decided on 31.01.2024, this Court has already held that without registering FIR, commencement of investigation, is in violation of the provisions of the Cr.P.C. 12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the provisions of the K.E. Act as well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law.
12. That apart, sending the less quantity of the bottles than the seized quantity of bottles for examination, and without recording the reasons for not obtaining warrant, seizing the articles and commencing the investigation without registering FIR, is violative of the provisions of the K.E. Act as well as Cr.P.C. Therefore, the criminal proceedings is not sustainable in law.
13. Therefore, the criminal petition is allowed. The criminal proceedings in C.C. No.63/2021 pending on the file of principal Civil Judge and JMFC, Hunsur, arising out of Crime No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR Department, Hunsur Sub-Division, Hunsur, Mysuru, is hereby quashed."
In Criminal Petition No.278 of 2018 c/w Criminal Petition No.279 of 2018 "ORDER The petitioner-accused No.2 has filed these criminal petitions under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C. No.293/2017 and 277/2015 respectively, both on the file of the Civil Judge and Judicial Magistrate First Class, Narasimharajapura wherein the petitioner was charge sheeted by the respondent for the offences punishable under Sections 32 and 34 of the Karnataka Excise Act, 1965 (hereinafter referred to as 'Act' for short).
2. Heard learned counsel for the petitioner in both case and the learned High Court Government Pleader for respondent State.
3. The case of the prosecution in criminal petition No.278/2018 is that one K.R. Sunitha, Police Sub-Inspector of N.R. Pura Police Station, filed a complaint alleging that she received credible information that on 24.09.2016 at 6.30 a.m. when she was on patrolling duty, accused No.1-Padmanabha was selling liquors in front of provision store without any permit or licence. Immediately, the complainant-officer along with panchas went to the spot, seized liquor bottles under panchanama and came back to police station, registered a case in Crime No.111/2016 for the offences punishable under Sections 32 and 34 of the Act. During investigation, it was found that accused No.1 given voluntary statement that the petitioner-accused No.2
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR supplied liquors to him. Therefore, the police filed charge sheet against the petitioner-accused No.2, which is under challenge.
Whereas in Criminal Petition No.279/2018, the case of the prosecution is that, on 13.02.2015, one Sadananda, who is a Police Circle Inspector, filed a complaint alleging that he received credible information that on 13.02.2015 at 7.30 a.m., Halesha- accused No.1 said to be selling liquors without permit or licence in front of his shop. Immediately, he along with panchas went to the spot and seized 13 pouches of Amrut's Silver Cup Brandy, 11 pouches of Haywards Cheers Whisky, 17 tetra packs of 3 Aces Whiskey and other brands of whisky, totaling worth Rs.1,888/-, which is more than the permissible quantity. After registering the case, during investigation, it was revealed that the petitioner- accused No.2 supplied liquor to the accused No.1 in the present cases. Therefore, the police filed charge sheet against the petitioner showing him as accused No.2, which is under challenge.
4. In both cases, as the issue and point of law is one and the same and as the petitioner-accused No.2 is also one and the same, they are taken for common disposal.
5. Learned counsel for the petitioner has mainly argued that before going to search and seize the property, the police officer or police department officials shall request permission to issue search warrant form the Magistrate to search or seize the liquors as required under Section 53 of the Act and if the officials are unable to get warrant and they want to proceed, immediately they have to write reasons and record in a dairy maintained by the officer and proceed as per Section 54 of the Act. The police officials have not followed the mandatory provisions of Sections
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR 53 and 54 of the Act. Therefore, the criminal proceeding against the petitioner is not sustainable.
In respect of his arguments, the learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in case of K.L. Subbayya Vs.State of Karnataka reported in (1979)2 SCC 115 and also the Coordinate Bench of this Court in Crl.Appeal No.2619/2012 decided on 18.09.2020.
6. Per contra, learned High Court Government Pleader for respondent State has contended that the petitioner-accused No.2 has supplied liquor to accused No.1 in both cases and the police seized the same under panchanama. The petitioner-accused is a habitual offender and therefore, prayed for dismissing the petitions.
7. Having heard learned counsel for the parties and on perusal of the records, it is not in dispute that the police have seized in front of the shop of accused No.1 wherein he was found in possession of liquors weighing more than the permissible quantity without any permit/licence. However, In both cases, the police officials have not at all stated anything about obtaining warrant or not given requisition for obtaining warrant as per sections 53 of the Act and also recorded any reason for not obtaining warrant as per Section 54 of the Act. They blindly seized the liquors from the custody of accused No.1. Apart from that, there is no material placed on record to show that the petitioner is a habitual offender. Except voluntary statement of accused No.1 that petitioner-accused No.2 has supplied liquors to accused No.1, no information is collected by the investigation officer that the petitioner is running wine shop or the bar. Such being the case, conducting criminal proceedings against the petitioner is abuse of process of law.
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR
8. The Hon'ble Supreme Court in the case of K.L. Subbayya Vs. State of Karnataka reported in (1979)2 SCC 115 and the Coordinate Bench of this Court in Crl. Appeal No.2619/2012 decided on 18.09.2020 have quashed the proceedings against the petitioner therein. Therefore, I am of the view that the criminal proceedings against the petitioner are liable to be quashed.
9. Accordingly, both the petitions are allowed. The criminal proceedings in C.C. No.293/2017 and 277/2015, both on the file of the Civil Judge and Judicial Magistrate First Class, Narasimharajapura, are hereby quashed."
8. As is clear from the aforesaid judgments of this Court, compliance of provisions contained under Section 54 of the Karnataka Excise Act is mandatory and non-compliance thereof and non-obtaining of a search warrant prior to the search and seizure would vitiate the impugned F.I.R., charge sheet and all further proceedings pursuant thereto, deserves to be quashed.
9. Insofar as the contention regarding registration of F.I.R. without filing the report as required under Section 154 of the Criminal Procedure Code is concerned, in the case of DAYANANDA @ R. BABU (supra), under identical circumstances, the Co-ordinate Bench of this Court held as under:
"15. On perusal of the entire documents, Ex.P1 is considered as seizure mahazar under which liquor bottles have been seized by stating that the accused were transporting it without having any valid license. It is the submission of learned counsel for petitioner that the search and seizure conducted without registration of FIR in respect of cognizable offence is bad in law is concerned, it is relevant to refer to the provision under Sections 154 and 157 of Cr.P.C..
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR "154. Information in cognizable cases.--(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that--
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be video graphed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.]
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a 80 police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that--
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."
On careful perusal of the above said provisions, it appears that there are two kinds of FIRs namely, the FIR can be registered by the informant which was duly signed by him. Secondly, the FIR can be registered by the police officer himself on any information received by him. In both the cases, the information should be reduced into writing and thereafter, the investigation must be carried out.
16. Ex.P1 being a panchanama, it cannot be termed as a complaint. FIR cannot be registered on the basis of panchanama, however, in the present case, the respondent has registered he FIR on the basis of panchanama which is erroneous and not proper. The Trial Court ought not to have acted upon such FIR and cognizance should not have been taken on the strength of the
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR said FIR. However, the Trial Court and the Appellate Court have committed error by considering the said FIR as appropriate and proper and recorded the conviction. Such conviction would be rendered as ineffective and the same can be termed as non est in law.
17. When the registration of FIR itself is void abinitio, the subsequent proceedings including the judgments are liable to be set aside. Therefore, the interference by the Revisional Court in setting aside the concurrent findings is justified.
18. In the light of the observations made above, I proceed to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction dated 26.12.2015 and order of sentence dated 29.12.2015 in C.C.No.332/2009 on the file of Civil Judge and JMFC., Hunsur and its confirmation judgment and order dated 12.01.2021 in Crl.A.No.12/2016 on the file of VIII Additional District and SessionsJudge, Mysuru, Sitting at Hunsur are set aside.
(iii) The petitioners are acquitted for the offences punishable under Sections 32, 34 and 38-A of Karnataka Excise Act.
(iv) Bail bonds executed, if any, stand cancelled."
10. In the instant case, it is an undisputed fact which is borne out from the material on record that, except the mahazar dated 05th June, 2021, a separate/independent report prior to registration of F.I.R. had not been filed by the respondents and non-filing of the Police report prior to the registration of F.I.R. would vitiate the F.I.R., charge sheet and all further proceedings pursuant thereto as held by this Court in the case of DAYANANDA @ R. BABU
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR (supra). Under these circumstances also, the impugned proceedings deserves to be quashed.
11. In the result, I pass the following:
ORDER
1) Criminal Petition is allowed; and
2) The entire proceedings in C.C. No.993/2023 on the file of the Principal Civil Judge and JMFC., Hoskote, Bengaluru Rural District against the petitioner for the offences punishable under Sections 11, 12, 14, 32 and 38A of the Karnataka Excise Act are hereby quashed;"
6. Under these circumstances, the impugned proceedings insofar as Section 32 of the Karnataka Excise Act deserves to be quashed.
7. Insofar as Sections 51(B) of the Disaster Management Act and Section 188 of IPC, the said issue is also covered in the judgment of this Court in the case of Smt.Roth Sagayi Meri & ors. -vs- State of Karnataka and anr. in Crl.P No.9129/2024 (DD 25.6.2025), wherein it is held as under:
"7............Insofar as the offence punishable under Section 51 of the Act, 2005 is concerned, under identical circumstances in the case of D.K Shivakumar v. The State of Karnataka and another [Crl. P. No.3432/2023 disposed of on 07.07.2023], this Court held as under:
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR "The petitioner is before this Court calling in question an order dated 25.01.2021 by which the concerned Court takes cognizance of the offences pursuant to PCR.No.1453/2021 and registers a C.C.No.3169/2022 for offences punishable under Section 51(b) of the Disaster Management Act, 2005 ('Act' for short) and Section 188 of the Indian Penal Code, 1860 ('IPC' for short).
2. Heard Sri. Arnav A. Bagalwadi, learned counsel appearing for the petitioner and Sri. Mahesh Shetty, learned HCGP appearing for respondents No.1 and
2.
3. The brief facts that leads the petitioner to this Court in the subject petition as borne out from the pleadings are as follows:
The petitioner along with others are said to have taken out a protest with about 350 people against the BBMP regarding increase of property tax. The allegation is, it was taken, despite the guidelines of Covid-19 existing at that point in time. The crime comes to be registered on 04.01.2022 on the said allegation. The learned Magistrate by his order dated 25.01.2022, takes cognizance of the offence and registers a C.C.No.25317/2022 and issue summons to the accused. The petitioner is accused No.1. The taking of cognizance is what drives the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend that there has been violation of Section 60 of the Act, inasmuch as no notice as is required
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR under Section 60(2) has been issued to the petitioner, prior to taking of the cognizance of the offence under Section 51(b) of the Act. He would submit that Section 188 of the IPC is an offshoot of Section 51 of the Act and therefore, proceedings should be quashed.
5. The learned High Court Government Pleader on the other hand would seek to refute the submissions to contend that the charge sheet has already been filed and therefore, the further proceedings must be permitted to be continued, as the petitioners are guilty of violating the Act.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material available on record.
7. The afore-narrated facts are not in dispute. The issue lies in a narrow compass, as to whether the learned Magistrate could have taken cognizance of the offence under Section 51(b) of the Act. To consider the said issue, it is germane to notice certain provisions of the Act. Section 51 of the Act deals with punishment for obstruction and reads as follows:
"51. Punishment for obstruction, etc.--(1) Whoever, without reasonable cause-- --(1) Whoever, without reasonable cause--"
(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b) refuses to comply with any direction given by or on behalf of the Central Government or the
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences.
(Emphasis supplied) Section 51(b) of the Act directs that whoever would refuse to comply with any direction given by or on behalf of the Government, as the case would be, become an offence under the Act.
8. Section 60 of the Act deals with cognizance for the offences and reads as follows:
"60. Cognizance of offences.--No court shall take cognizance of an offence under this Act except on a complaint made by--
(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or
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(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid."
(Emphasis supplied) Section 60(b) mandates that, if cognizance is to be taken for an offence punishable under Section 51 of the Act, a person who is arrayed as accused should have been given a notice not less than 30 days in the manner prescribed.
9. The prescription is in terms of the Rules. Rules, i.e. the Disaster Management (notice of alleged offence) Rules, 2007. Rule 3 of the said Rules, reads as follows:
"3. Notice of alleged offence and intention to make a complaint .--A notice under clause (b) of section 60 of the Act by a person, of the alleged offence and his intention to make a complaint shall be delivered to, or left at, the office of one of the following--
(a) in the case of the Central Government, except where the complaint relates to a railway, the Secretary incharge of the concerned Ministry or the Department in that Government;
(b) in the case of the Central Government where the complaint relates to a railway, the General Manager of that railway;
(c) in the case of State Government, the Secretary incharge of the concerned Department in that Government;
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(d) in the case of the National Authority, the Secretary or, if there is no Secretary, the Additional Secretary, of the National Authority;
(e) in the case of a State Authority, the Chief Executive Officer of the State Authority;
(f) in the case of a District Authority, the Chief Executive Officer of the State Authority."
(Emphasis supplied) The Rule mandates that a notice under Section 60(b) of the Act by any person should be issued on/of his intention to make a complaint, and that shall be delivered to the person against whom complaint is said to be made. The manner of issuance and delivery are narrated from (a) to (f). Therefore, there is prescription under the Rules as to the action to be taken under Section 60(b) of the Act.
10. On the bedrock of the aforesaid mandate under the Act and the Rules, the case at hand requires to be noticed. The incident takes place on 04.01.2021, around 10.30 a.m. and the crime is registered on 04.01.2021 for the offence punishable under Section 51(b) of the Act and Section 188 of the IPC. The learned Magistrate takes cognizance of the offence on 25.01.2022. The order of the learned Magistrate taking cognizance reads as follows:
"Perused the compliant. Complainant is a Public Servant. Hence, recording of Sworn Statement is dispensed with as contemplated u/s.200 of Cr.P.C. cognizance is taken for the offence punishable u/s.51(b) of NDA Act.
I have perused the documents produced by the complainant and considered the
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR allegation made in the complaint. The allegation are supported by documents and if allegations are not denied the same will lead to the conviction of the accused.
There are sufficient materials to issue process against the accused. Accordingly, I proceed to pass the following order:
ORDER
1. Register the case as CC
2. Issue summons against accused no.1 to 9 for the offence punishable u/s. 51(b) of NDA Act.
3. Call on: 26.02.2021."
(Emphasis added) The learned Magistrate prior to taking cognizance ought to have noticed the rigor of Section 60(b) as to whether a notice has been issued to the accused in terms of Rule 3 of the said Rules (supra). Ostensibly, the mandate under the Act or the Rules is not followed by the complainant and it is not even noticed by the learned Magistrate prior to the taking of cognizance. It is therefore, contrary to law.
11. In the light of it being contrary to law, is resultantly rendered unsustainable. The unsustainability of it, would lead to its obliteration.
12. For the aforesaid reasons, following ORDER I. Criminal petition is allowed.
II. The order dated 25.01.2021 passed in C.C.No.3169/2022 on the file of the 42nd Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioner."
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8. In the instant case, the material on record will also indicate that the petitioners cannot be said to be guilty for the offence punishable under Section 51 of the Act, 2005 and consequently, the impugned proceedings qua the petitioners for the alleged offence also deserves to be quashed.
9. Insofar as the allegations pertaining to Section 353 of IPC are concerned, in the case of Syed Esa Ibrahim and another v. State of Karnataka and another [NC:2023: KHC: 38832], this Court held as under:
"Petitioners - accused Nos.1 and 2are sought to be prosecuted for the offences under Sections 341, 353, 506 and 114 r/w Section 34 of IPC.
2. Case of the prosecution is that; accused No.1 was running the hotel business beyond 11.30 pm on the date of incident, and when the complainant and other police personnel questioned the same, the accused abused them with unparliamentary words, and threatened them with dire consequences and restrained them from discharging their official duties.
3. Learned counsel for the petitioners submits that even accepting the allegations made against the petitioners, on the face of it, does not satisfy the essential elements to constitute the commission of the alleged offences. Therefore, the continuation of the criminal proceedings would be an abuse of process of law.
4. Learned High Court Government Pleader for the State submits that the petitioners by restraining the police personnel from discharging their duties and abusing them
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR have committed the aforesaid offences and the veracity of the allegations can be considered at the time of trial and the same cannot be gone into in this petition.
5. Considered the submissions made by the learned counsel for the parties.
6. Section 353 of IPC deals with assault or criminal force to deter the public servant from discharge of his duties and it reads thus:
"353. Assault or criminal force to deter public servant from discharge of his duty. - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.''
7. To constitute an offence under Section 353 of IPC, a person must have assaulted or used criminal force in deterring the public servant from discharging the official duties. The term 'criminal force' is defined under Sections 349 and 350 of IPC. A reading of the aforesaid provisions indicate that, to use criminal force means causing injury, fear or annoyance to the person against whom criminal force is used.
8. In the instant case, there is no allegation, much less, any material against the petitioners herein, either
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR assaulting or using criminal force, so as to deter the police personnel from discharging their duties, except that the petitioners abused and threatened the police personnel which does not satisfy the requirement of Sections 349 and 350 of IPC. Therefore, the essential elements to constitute the commission of an offence under Section 353 of IPC is conspicuously absent.
9. Though it is alleged that the petitioners are running the hotel beyond the stipulated period, utmost may constitute an offence under Section 188 of IPC and the cognizance of the said offences can be taken only upon a complaint in writing by the officers prescribed under Section 189 of IPC. However, the police to overcome the said provision have not invoked the said provision.
10. To constitute an offence under Section 341 of IPC, a person must have wrongfully restrained another person from proceeding beyond circumstantial limits. In the instant case, there is no allegation or material that the petitioners restrained the police personnel from proceeding beyond circumstantial limits, except the allegation that they restrained the police personnel from discharging their duties. Threatening the police personnel with dire consequences has not resulted in breach of public peace or committing any other offense by the complainant or his staff, which is an essential ingredient to constitute commission of offence under Section 506 of IPC. Therefore, in view of the preceding analysis, the continuation of the criminal proceedings would not sub-serve the ends of justice.
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR Accordingly, the criminal petition is allowed. The impugned proceeding in C.C.No.1152/2021 on the file of Additional Civil Judge and JMFC, Channapatna stands quashed."
10. In the instant case, the material on record comprising of the FIR, complaint, charge sheet material etc. would clearly indicate that necessary ingredients constituting the offence punishable under Section 353 of IPC are conspicuously absent and not forthcoming and consequently, the impugned proceedings for this offence also deserve to be quashed.
11. The offences punishable under Sections 427 and 447 of IPC are also not made out from the material on record warranting interference in the present petition.
12. Learned counsel for the petitioners submits that the entire allegations made against the petitioners pertain to the alleged illegal and unauthorized construction said to have been made by the petitioners on a Rajakaluve (storm water drain) which is said to have been encroached upon by the petitioners. In this context, learned counsel for the petitioners submits that the respondent No.2 and the land revenue authorities have already demolished the wall allegedly put up by the petitioners on the alleged storm water drain and consequently, the impugned proceedings deserve to be quashed on this ground also.
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13. In the result, I pass the following:
ORDER i. The Criminal Petition is allowed.
ii. The impugned proceedings in C.C. No.3693/2024 arising out of Crime No.263/2022 registered by the respondent No.1 - Police for the offences punishable under Section 192-A of the Karnataka Land Revenue Act, 1964 and Section 51 of the Disaster Management Act, 2005 as well as Sections 353, 427, 447 read with Section 34 of the Indian Penal Code, 1860, pending on the file of the Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, insofar as the petitioners / accused Nos.1 to 3 are concerned, are hereby quashed.
8. Under these circumstances, the impugned proceedings initiated under Sections 51(B) of the Disaster Management Act and Section 188 of IPC deserve to be quashed.
In the result, I pass the following:
ORDER
i) The petition stands allowed.
ii) The impugned proceedings in CC No.8614/2022 (Crime No.68/2021) pending on the file of the learned II JMFC Court, Mysore for the offences punishable under
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NC: 2025:KHC:27779 CRL.P No. 10114 of 2025 HC-KAR Section 32 of Karnataka Excise Act, Section 51(b) of the Disaster Management Act and Section 188 of IPC insofar as the petitioners are concerned, are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE BKM List No.: 1 Sl No.: 43