Karnataka High Court
Sri Sudheendra S Poojary vs State Of Karnataka on 26 February, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.7735/2019
BETWEEN:
Sri Sudheendra S. Poojary
S/o Seena Poojari
Aged about 38 years
Residing at No.96, 4th Cross
Nandini Layout
Bengaluru-560 096.
...Petitioner
(By Sri Hashmath Pasha, Senior Counsel for
Sri Nasir Ali, Advocate of M/s. HP Unique & Co.,)
AND:
1. State of Karnataka
by Halasuru Gate Police Station
Bengaluru City-560 002
Represented by learned State Public Prosecutor
High Court Building
Bengaluru-560 001.
2. Sri Ravi Patil
Police Inspector
CCB Police, N.T.Pet,
Benaluru-560 002.
...Respondents
(By Sri Showri H.R., HCGP for R1)
-2-
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the FIR registered in Crime
No.177/2019 registered by Halasuru Gate Police
Station, Bengaluru City for the offences punishable
under Sections 79 and 80 of Karnataka Police Act, and
Section 420 r/w 34 of IPC which is pending on the file
of I Additioanl Chief Metropolitan Magistrate, Bengaluru
vide Annexure-B as an abuse of process of law.
This Criminal Petition coming on for orders this
day, the Court made the following:
ORDER
This petition is filed by petitioner/accused No.3 under Section 482 of Cr.P.C. praying to quash the FIR in Crime No.177/2019 of Halasuru Gate Police Station, Bengaluru pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 79 and 80 of Karnataka Police Act and also under Section 420 read with Section 34 of IPC.
2. I have heard the learned Senior counsel for the petitioner and the learned High Court Government Pleader for respondent Nos.1 and 2.
-3-
3. Though this case is listed for hearing- interlocutory application, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.
4. On 23.09.2019 at about 8.00 a.m., respondent-police have received a credible information that two persons in M/s. P. M. Enterprises Office indulged in betting the amount to the result of India and South Africa T-20 Match which was played on 22.09.2019 and thereby collecting the amount and have cheated them. On the basis of the said information, a raid has been conducted and thereafter, the case has been registered against the petitioner/accused and other accused persons.
5. It is the submission of the learned Senior counsel that the registration of FIR after search, seizure and arrest of accused Nos.1 and 2 is contrary to the principles laid down by the Hon'ble Apex Court in the -4- case of Lalitha Kumari Vs. Government Uttar Pradesh and reported in (2014) 2 SCC 1. It is his further submission that the information received was disclosing only the commission of an offence on betting and the offences registered are under Sections 79 and 80 of the Karnataka Police Act and the said offences are non-cognizable offences. The Investigating Officer without obtaining the order of permission as contemplated under Section 155(2) of Cr.P.C., he went and conducted the search and seizure without there being any warrant and permission. The said provision if it is not followed, it goes to the route of the case and the entire proceedings is nothing but an abuse of process of law. It is his further submission that the learned Magistrate has given the permission by making an endorsement 'permitted' that itself goes to show that he has not applied his mind to the information given by the informant and no enquiry has been conducted as required under Section 155(2) of Cr.P.C. It is his -5- further submission that the illegality and correctness goes to the route of the case and the continuation of the proceedings is abuse of process of law. On these grounds, he prayed to allow the petition.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that there is prima facie material as against petitioner/accused. It is not only the non-cognizable offence which has been mentioned in the FIR and he has also committed an offence under Section 420 of IPC, which is a cognizable offence, under such circumstances, Section 155 of Cr.P.C. is not applicable to the present facts on hand. It is his further submitted that at this pre-matured stage that too, when the investigation is still in progress, it is not a fit case to quash the proceedings. He further submitted that even though the learned Magistrate has made an endorsement 'permitted'. On cyclostyled paper, appears original signature that itself shows the -6- application of mind. It is his further submitted that already the charge sheet has been filed. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
8. As could be seen from the records, it indicates that on receipt of the credible information, two persons in M/S. P. M. Enterprises Office have indulged in betting the amount to the result of India and South Africa T-20 Match which was played on 22.09.2019 and a case has been registered under Sections 79 and 80 of The Karnataka Police Act. Admittedly, the said sections are non-cognizable offences in nature and the Investigating Officer knows about the non-cognizable offence has been committed by the accused, he has to follow the mandate as contemplated under Section 155(2) of Cr.P.C. and he has to obtain the necessary -7- permission from the jurisdictional Magistrate to proceed in the matter by giving a requisition and obtain a permission. Though in the instant case, the permission has been obtained, the learned Magistrate has only made an endorsement to the effect 'permitted' that too, on a cyclostyled paper. That itself goes to show that without application of mind, he has passed the impugned order. As per Section 155(2) of Cr.P.C. it indicates that it is not a mere formality that the learned Magistrate has to peruse the records thereafter, by application of mind has to make an endorsement that whether investigation is required in the case or not? If he has not applied his mind, then under such circumstance, it is not going to satisfy the mandate as contemplated under Section 155(2) of Cr.P.C.
9. Be that as it may. It is alleged that the petitioner/accused has committed an offence under Section 420 of IPC but when he received the information -8- it is noticed that the petitioner/accused and other persons have indulged in betting of the amount to the result of India and South Africa T-20 Match. There are no specific allegations which have been made against him. The said betting has been done and the persons have cheated to constitute an offence under Section 420 of IPC. In the absence of such material, mentioning of Section 420 of IPC without there being any material, it also does not constitute an offence as contemplated under the law.
10. Be that as it may. If he has come to the conclusion that the petitioner/accused have cheated, then under such circumstances, he should have registered the case and thereafter he could have proceeded and made a search and seizure. If the said aspect is not done, then under such circumstances, there will be violation of mandate issued by the Hon'ble -9- Apex Court in the case of Lalitha Kumari (quoted supra).
11. In the said case it has been specifically observed that the registration of FIR is mandatory under Section 154. For the purpose of brevity, I quote paragraph No. 86 of the Lalitha Kumar's case (quoted supra) which reads as under:
"86. Therefore, conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the "procedure established by law" and, thus, is in conformity with Article 21 of the Constitution. Accordingly, the right of the accused under Article 21 of the Constitution is protected if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law."
12. By going through the said proposition of law and the mandate of law as contemplated under Section 155(2) of Cr.P.C. it indicates that there is violation of illegality in committing the raid by the respondent-
- 10 -
police. It is a fit case to exercise the power under section 482 of Cr.P.C.
13. In that light, petition is allowed and the FIR in Crime No.177/2019 of Halasuru Gate Police Station, Bengaluru pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 79 and 80 of Karnataka Police Act and also under Section 420 read with Section 34 of IPC are hereby quashed.
I.A. No.1/2020 does not survive for consideration. Accordingly, it is disposed off.
Sd/-
JUDGE VBS