Bangalore District Court
State By Tunganagar Police Station vs Sri. Renukacharya on 10 January, 2020
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH82)
:Present :
Sri RAMACHANDRA D. HUDDAR, B.Com., LLM.,
LXXXI ACC & SJ, Bengaluru City (CCH-82)
(Special Court exclusively to deal with
criminal cases related to elected MPs/MLAs
in the State of Karnataka)
Dated: This the 10th day of January, 2020
Spl. CC No. 923 / 2019
COMPLAINANT:- State by Tunganagar Police Station,
Shivamogga.
(By Public Prosecutor)
V/s
ACCUSED:- 1. Sri. Renukacharya,
Ex-excise Minister,
Member of KJP Legislative Assembly,
Honnali.
2. Kumar, S/o Thippaiah,
Aged about 27 years,
R/o Muthenahalli, Honnali Taluk.
3. J.K. Babu @ H.S. Mukthiyar Ahmmed
Khan, Aged about 50 years,
Owner of J.K. Textiles, Honnali.
Date of offence 26.4.2013
Date of report of offence 27.4.2013
Name of the complainant J.C. Janardhana
Date of commencement of 05.12.2016
recording of evidence
Date of closing of evidence 26.11.2019
Offences complained of Sec.171(E) of IPC
Opinion of the Judge Accused found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri M.S., Advocate for accused
2 Spl. CC 923/2019
JUDGMENT
The PSI, Tunganagar Police Station, Shivamooga has filed charge sheet against the accused persons for the offence punishable under Sec.171(E) of IPC before the Judicial Magistrate First Class, Shivamogga and it was registered in C.C.No.1536/2013. Thereafter, the said case came to be transferred to JMFC-III Court, Shivamogga and renumbered as C.C.No.196/2019. In view of establishment of this Special Court as per the notification GO No.LAW 10 LCE 2018,dated 08.12.2018, the entire records of this case are transmitted to this court and renumbered as above.
2. Brief and relevant facts leading to the case of the prosecution are as under:-
That the complainant by name J.C. Jarandhana, P.W.1 lodged complaint on 26.04.2013 before Tunganagar Police Station, Shivamogga alleging that, some political party people have violated the Election Code of Conduct and were found stored the sarees at VRL Godown situated at Gadikoppa, Shivamogga for the purpose of distributing the same to the voters.
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3. It is alleged in the complaint that, on 26.04.2013 at about 12.00 noon, this complainant was called by PSI by name N.S. Ravi of Tunganagar Police Station, Shivamogga and Police Inspector, DCIB by name Omkar Naik stating that, they had received an information about storing of sarees at VRL Godown and they requested this complainant to co-operate for the purpose of conducting raid.
4. On receipt of the said information, he informed the same to one Girish being the head of the election. Himself and another person by name S.K. Dharmadath, head of Zone-1 initially went to Tunganagar Police Station, Shivamogga. There, they collected two panchayathdars by name Sattar Sab and Umesh. Thereafter, all these persons along with Probationary S.P. by name K. Annamalai and staff belongs to DCIB and also the staff belongs to Tunganagar Police Station by name Narasimhaiah ASI, P.C. 1286 Ramappa, P.C. 1462 Santhosh, P.C. 977 Girish, P.C. 1309 Shekar, and P.C. 1471 Ramesh, went in the government vehicle to the said VRL Godown situated at Gadigoppa of Shivamogga. They reached the 4 Spl. CC 923/2019 said godown at 1.00 p.m. There, they found the Assistant Manager of VRL Godown by name T. Anand. They collected information about receipt of saree bundles in the said godown. They went to the said godown and noticed that at north-east portion of the godown, there was storage of 22 white and pink coloured plastic bundles containing sarees. It is informed to them that, the said sarees have come from Surat of Gujarat State.
5. It is further stated in the complaint that, this complainant called the Joint Commissioner of Commercial Tax by name C.J. Sridhar. The said Joint Commissioner came to the said godown along with his staff i.e. Commercial Tax Inspector by name Ravi Kumar and Nagendra Naik. They recovered vouchers and bills in respect of the said bundles. On inspection of bundles, as per the bills, there would have been saree bundles. In all, there were 22 saree bundles. The said bills and vouchers were not containing the correct address.
6. This complainant with the help of the 5 Spl. CC 923/2019 aforesaid staff, seized all these 22 bundles containing sarees and prepared panchanama as per Ex.P.1. In all there were 2,236 srees in the said 22 bundles valuing about Rs.5,25,000/-. The Commercial Tax Officers informed the price of the said sarees.
7. It is further stated in the complaint that, as there were no proper receipts, TIN numbers and also purchasers' names on the said bundles, they recovered all the documents. With regard to the JC No.420340780 dated 03.04.2013, there were 5 bundles in the godown, but there were only 2 bundles.
8. It is suspected by the complainant and others that, some political party must have bought these sarees for the purpose of influencing the voters. On suspicion, these sarees and documents have been seized. The pancahama was written from 1.00 p.m. and 8.00 p.m. on that day. It is alleged that, some political party might have brought these sarees for the purpose of distribution, so as to influence the voters to cast their vote in favour of the said political party. With these allegations, this P.W.1 lodged complaint before P.W.9 6 Spl. CC 923/2019 Ravi N.S.
9. P.W.9 gave requisition to the court for the purpose of obtaining permission to conduct investigation by registering the same in NCR No.173/2013.
10. After obtaining permission from the jurisdictional magistrate, he registered crime in Cr.No.178/2013 and set the criminal law in motion. His requisition so sent to the jurisdictional magistrate is marked at Ex.P.16. FIR is marked at Ex.P.17.
11. P.W.9 recorded the statements of C.W.4 and P.W.6 on the said day itself. During investigation, it was revealed that, one Babu of Honnali has purchased the said sarees. It is also informed that, on 24.04.2013 one Kumar has come to VRL godown and have taken about 4 bundles of sarees. He issued notice to the said Kumar and Babu. Recorded their voluntary statements. It is also informed that, as per the instructions of accused No.1 Renukacharya belongs to KJP Party, the said sarees have been brought.
12. He recorded further statement of the 7 Spl. CC 923/2019 complainant. So also recorded the statements of C.W.2, C.W.3 and C.W.6 to 25 during investigation. After completion of investigation, he filed charge sheet against the accused persons as stated supra.
13. After filing charge sheet, cognizance of the offence was taken by the jurisdictional magistrate. Copies of the police papers were furnished to the accused persons as contemplated under Sec.207 of Cr.P.C. Thereafter, substance of accusation framed, read over and explained to the accused persons in the language known to them by III Addl. C.J. & JMFC. The accused persons pleaded not guilty and claim to be tried.
14. Thereafter, summons came to be issued to the witnesses for their evidence. Before the said court, P.W.1 and 2 appeared and they were examined.
15. As accused No.1 was the sitting MLA, therefore, in view of establishment of this court, being Special Court to deal with the criminal cases relating to MLA's and MP's, the entire records of this case are transmitted to this court. As stated supra, this case is 8 Spl. CC 923/2019 renumbered as C.C.No.923/2019.
16. The prosecution before this court also summoned the witnesses and examined P.W.3 to P.W.9. In all, the prosecution examined 9 witnesses I.e. P.W.1 to P.W.9 and got marked documents at Ex.P.1 to P.17 with respective signatures thereon. M.O.1 to M.O.3 being the sample sarees marked.
17. The records of this case, do reveal that, when the case was pending before jurisdictional magistrate, the sarees, so seized in this case were put for auction and they were sold in the court auction.
18. After closure of the evidence of prosecution, accused No.1 to 3 are questioned under Sec.313 Cr.P.C., so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution witnesses. They denied their complicity in crime. They did not chose to lead any defence evidence.
19. Accused No.2 by name Kumar has filed memo with two documents to show that he is running a cloth shop at Honnali.
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20. Heard the arguments. Meticulously perused the records.
21. In view of the rival submissions of both sides, the following points arise for my consideration:-
1) Whether the prosecution proves beyond all reasonable doubt that, accused No.1 being the member of KJP Legislative Assembly, in between 03.04.2013 and 05.04.2013 brought the sarees from Surat in Gujarat State in the name of shop of accused No.3 Babu and stored 22 bundles of sarees in VRL Godown on 03.04.2013 and accused No.2 as per the instructions and inducement of accused No.1 on 24.04.2013 put the seal and signature of shop of accused No.3 and received the sarees from VRL Godown and tried to give them to accused No.1 so as to influence the voters of Honnali by violating Election Code of Conduct and thereby accused have committed an offence punishable under Sec.171(E) of IPC?
2) What order or sentence?
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22. My answer to the above points is as under:-
Point No.1:- In the Negative Point No.2:- As per final order for the following.
REASONS
23. Point No.1:- It is the specific case of the prosecution that, this complainant on receipt of the information from PSI of Tunganagar Police Station, Shivamogga with regard to the storing of sarees at VRL godown situated at Gadikoppa, Shivamogga went to the said godown and noticed storing of 22 bundles of sarees. When enquired, it was revealed that, at the instance of accused No.1, these accused No.2 and 3 have brought the same from Surat, so as to influence the voters to vote in favour of accused No.1, who contested the Legislative Assembly Elections from Honnali constituency.
24. It is further case of prosecution that this P.W.1 with the help of Joint Commissioner and officers so also with the help of Tunganagar Police Station, 11 Spl. CC 923/2019 have seized them and noticed that, these accused are in responsible for storing the said sarees in the said VRL godown. Therefore, the case is registered initially as non-cognizable offence and thereafter, with the permission of jurisdictional magistrate, criminal case is registered against the accused persons. Now these accused are facing trial for the offence punishable under Sec.171(E) of IPC.
25. In a case of present nature, it is the bounden duty of the prosecution to prove the guilt of accused beyond all reasonable doubt. The prosecution is under obligation to connect links in the commission of crime by all these accused persons. It is settled principle of law that, under criminal jurisprudence, it is the bounden duty of the prosecution to prove the guilt of accused persons with chain of circumstances connecting link with regard to commission of crime. Even a slightest doubt arise in the case of prosecution, that the benefit goes to accused persons. Now let me analyze whether the prosecution is able to establish guilt of accused beyond all reasonable doubt.
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26. So far as evidence adduced by the prosecution is concerned, P.W.1 is the complainant. He has reiterated the allegations made in the complaint in his complaint on oath. In the examination-in-chief, he says that, as per further statement of the witnesses and the voluntary statements, so recorded, it was revealed by accused No.3 that, the said sarees belongs to accused No.2, which have been brought for the purpose of distributing the same to the voters of Honnali constituency, wherein accused No.1 was the candidate from KJP political party. The photograps have been identified by this P.W.1 with regard to the photos taken of the bundles stored in the said godown. On reading the examination-in-chief of P.W.1, throughout his examination-in-chief, there is no concrete evidence spoken to by this P.W.1 that, really this accused No.1 to 3 have purchased them from Surat and they have been stored in the godown situated at Gadikoppa in Shivamogga Town, within the jurisdiction of Tunganagar Police Station, Shivamogga. Mere suspicion has been spoken to P.W.1 in his examination- in-chief.
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27. He has been thoroughly cross-examined by the counsel for defence. He admits that, the said Honnali Vidhanasabha Constituency is not coming under the jurisdiction of Shivamogga. It is within the jurisdiction of Davanagere District. It is further elicited that, invoices and vouchers must contain the address to whom the said articles have to be reached. It is elicited that, on the said vouchers and bills, there was no name of any addressee and it is not properly mentioned. Even it is elicited that, this P.W.1 has not enquried either with the witnesses or with the police that, the said bundles belongs to whom and the said bundles were not having any proper address.
28. Ledger book is being maintained by VRL Godown. Even in the said register also, there is no proper mentioning of the address. They opened the bundles and again they have not bundled. In all, there were 10 bundles as seen in Ex.P.13. Even the photographs was taken along with them, but he does not know the name of the said photographer. He denied other suggestions.
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29. On scrupulous reading of the evidence of this P.W.1, it can be very well be stated that, the evidence of P.W.1 suffers from major infirmities, so also suffers from material particulars. On suspicion only, he went to the VRL Godown and noticed the presence of the said bundles. The said bundles were not containing proper address. If such an evidence is being adduced through P.W.1, it really requires corroboration.
30. P.W.2 is examined in this case, being the pancha to Ex.P.1. He identifies his signature as per Ex.P.1. Throughout his evidence, he says that, at the instance of police, he put his signature to the said panchanama. He does not know the contents of panchanama. In criminal cases, panchas are the authors of panchanama. If they do not support the contents of the panchanama by giving cogent evidence, such evidence cannot be accepted as truthful evidence. Therefore, to the extent of his presence and putting signature on Ex.P.1, his evidence is to be accepted. So far as other aspects are concerned, evidence of P.W.2 cannot be accepted.
15 Spl. CC 923/2019
31. P.W.3 Ramappa, P.W4 T. Santhosh are the police officials, who accompanied the complainant and other police officers at the time of conducting raid. These two witnesses speaks with regard to the visit of said VRL godown and noticing about storing of saree bundles. In all there were 2,336 sarees according to their evidence. This P.W.3 says that, during investigation they came to know the names of accused as the persons, who have brought those saree bundles. According to their evidence, panchanama was written as per Ex.P.1 by the complainant in the presence of panchas.
32. In the cross-examination, P.W.3 says that, Ex.P.4 to 12 being vouchers and receipts, there is no mentioning of names of any of the accused persons. The Honnali Vidhanasabha Constituency is not within the jurisdiction of Shivamogga Town. As per the invoice, it is noticed that, said sarees have been bought from Surat. On information, so gathered, it was revealed that, accused No.1 bought those sarees. No further, investigation have been done so as to connect the accused that these accused have really bought 16 Spl. CC 923/2019 those sarees and stored them in VRL godown.
33. P.W.4 Santhosh also speaks in similar terms with that of the evidence of P.W.3. They are hearsay witnesses with regard to the information so collected about bringing of sarees by accused No.1 for the purpose of distribution to the voters so as to influence them to cast their vote in favour of accused No.1. There is no direct evidence.
34. P.W.5 Ravikumar is the Commercial Tax Inspector. On the information by the Tunganagar Police Station and complainant, he went to the said godown at Gadikoppa in Shivamogga Town and noticed the storing of 2,336 sarees in bundles. He inspected the receipts, bills etc. There were no proper bills as per his evidence. Even it was not informed that, who have purchased the said sarees. The police seized the said sarees and thereafter, auction was conducted in the court. He also speaks about he hearing about bringing of sarees by accused No.1. He is not a direct witness.
35. In the cross-examination, he says that, he has not personally enquired that, who have purchased the 17 Spl. CC 923/2019 said sarees. If such an evidence is placed on record with such witnesses unless there is concrete evidence, such evidence cannot be accepted. Even P.W.5 says that, he does not know who have written the said panchanama at Ex.P.1. Therefore, the evidence of these witnesses will not inspire confidence in the mind of the court.
36. P.W.6 Anand is the Assistant General Manager of VRL Logistics. He says that, the complainant and police officials along with election officers came to the godown at 11.00 a.m. on one day in the month of April-2013. The complainant says that, they went to the said place at 1.30 p.m. But P.W.6 says that they came to the spot at 11.00 a.m. According to the evidence of this witness, they inspected the documents, so also bundles containing sarees etc. The panchanama was written as per Ex.P.1. At that time, Election Code of Conduct was in force. He identifies Ex.P.3 to 12 and P.13 and P.14 being the documents and photographs respectively.
37. This witness has been declared as hostile witness by the prosecution. Nothing worth is elicited 18 Spl. CC 923/2019 from the mouth of this witness so as to disbelieve his version spoken in the examination-in-chief. Even he says that, he does not know the contents of panchanama Ex.P.1. The photographs Ex.P.13 and P.14 have been snapped by the police. So the evidence of this P.W.6 will not come to rescue the prosecution in any manner so as to believe the story of prosecution that, these accused persons are responsible in purchasing the said sarees for the purpose of distribution to the voters in the manner alleged.
38. P.W.7 Omkar Naik is the Dy.S.P. and he was working as Police Inspector at the relevant time. According to his evidence, on 26.03.2013 at 11.00 a.m. when he was in the office, received information with regard to the storing of saree bundles at VRL godown. He informed the same to his police officials and requested his colleague officials to co-operate for conducting raid etc. Thereafter, they went to the said godown at 1.00 p.m. They noticed the presence of bundles of sarees, wherein 2,336 sarees were there worth of Rs.5,25,000/- From 1.00 p.m. to 8.00 p.m. they conducted panchanama as per Ex.P.1. Even the 19 Spl. CC 923/2019 commercial tax officers are called to the said spot. In their presence all the sarees have been seized.
39. This P.W.7 have been thoroughly cross- examined by the counsel for accused. In categorical terms, he admits that, Honnali Vidhanasabha constituency is not in Shivamogga District. There is no mentioning of said information in the dairy being maintained in the police station. Even, he does not know that, who have snapped the photographs. Panchanama was written by the police officials. He being the eye witness to the said raid, but his cross- examination is worth reading and falsifies the case of the prosecution.
40. P.W.8 Vishwanath M.P. is the Labour Officer, who accompanied this complainant and other police officials and election officers. He too speaks about the presence of 2,336 sarees in the said godown and also says that, at that time Election Code of Conduct was in force. It was revealed that, accused No.1 has brought the said sarees for the purpose of distribution etc. But the said bundles were not addressed in the name of 20 Spl. CC 923/2019 accused No.1 or accused No.2 or accused No.3. He has been cross-examined by the defence counsel.
41. According to his evidence, police have written panchanama. But the prosecution papers shows that, it is the complainant who wrote the panchanama. There are material contradictions with regard to the very preparation of panchanama in the evidence of witnesses. If such evidence is placed on record, it really requires corroboration.
42. P.W.9 is the I.O. in this case. He too accompanied the complainant and other police officers and commercial tax officers to the said spot. He speaks with regard to the conducting of investigation on receipt of complaint etc. He says that, it was informed to him by one Kumar came to the godown and took away 4 bundles of sarees. In the cross-examination, he has given clear go bye to the examination-in-chief. No documents have been collected by this I.O. to show that, these accused persons are really involved in the commission of the crime.
43. On scrupulous reading of the documents 21 Spl. CC 923/2019 Ex.P.1, the panchanama, it is not duly proved in accordance with law. The authors of panchanama have not supported the case of prosecution. Ex.P.2 complaint shows about receipt of information with the regard to the search of saree bundles at godown. Even P.W.6 complaint is silent about involvement of accused persons in the commission of crime. Ex.P.3 to P.12 are the documents collected during the course of investigation from the godown. These documents show that, the names of accused persons is not appearing in these documents. Ex.P.13 and P.14 are the photographs showing the saree bundles. Ex.P.15 is the statement of T. Anand being recorded, Ex.P.16 is the requisition being submitted by the I.O. to the jurisdictional magistrate seeking permission to conduct investigation. It is endorsed on Ex.P.16 as "permitted"
44. On scrupulous reading of the evidence of prosecution so led, it shows that none of the witnesses have spoken about involvement of the accused persons in the commission of crime. There is no connecting link between the offence and the accused persons for the commission of crime. Merely on suspicion, the charge 22 Spl. CC 923/2019 sheet has been filed against the accused persons. So, therefore, when there is no connecting link between accused persons in the commission of crime, it can be very well stated that, the prosecution case suffers from material particulars. There is no acceptable cogent evidence to come to the conclusion that, these accused are responsible in the commission of crime in the manner alleged.
45. More so, in this case, the provisions of Sec.155 of Cr.P.C. have not been followed by the I.O. in getting permission to register the case and investigate.
46. The Hon'ble High Court of Karnataka, Dharwad Bench in a recent judgment in Crl.P.No.101997/2019 decided on 10.12.2019 in a case between (Vaggeeppa Gurulinga Jangaligi Vs The State of Karnataka) have laid down law with regard to the non cognizable cases. In Para 8 to 15 of the said judgment, it is observed as under:
When the report is received by the SHO of Police station in respect of commission of non-cognizable offence, the SHO has to follow the mandatory procedure 23 Spl. CC 923/2019 prescribed under Section 155(1) and 155(2) of Cr.P.C. Therefore, it is necessary to refer the said provision. Section 155 of Cr.P.C. which deal with the procedure for investigation and for taking cognizance of non-cognizable offence reads as follows:-
"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.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, 24 Spl. CC 923/2019 the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
9. Therefore, when the SHO of the police station receives a report regarding commission of non-cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr.P.C. Thereafter, the jurisdictional Magistrate is required to pass an order permitting the police officer to investigate the case as mandated by the provisions of Section 155(2) of Cr.P.C. stated supra. Unless, the police officer is permitted by an order of the jurisdictional Magistrate to investigate the non- cognizable offence, the police officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.
10. This Court in the case of Praven Basavanneppa Shivalli Vs. State of Karnataka and Others (2017) 1 Air Kant R 461 considered the requirement of Section 155(1) and (2) of Cr.P.C. where case relates to a non-cognizable offence, in para 10 of the judgment this Court has observes as follows:
"10. S. 155 of Cr.P.C. deals with the procedure to be adopted in respect of the 25 Spl. CC 923/2019 information received by the Officer in charge of a Police Station relating to commission of non-cognizable offence. As per sub-section (1) of S.155 Cr.P.C. when an Officer in charge of Police Station receives the information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be maintained by such Officer in the prescribed form 'and refer the informant to the Magistrate'. Sub- section (2) of S.155 Cr.P.C. makes it clear, that no Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit case for trial. Sub-section(1) of S.155 Cr.P.C. which casts a duty on the station house officer who receives information as to the commission of non- cognizable offence to enter or caust to be entered the information in the prescribed book and refer the informant to the Magistrate, does not enable the SHO himself to approach the Magistrate and seek orders. The provision makes it clear, that the SHO shall refer the informant to the Magistrate, thereby, making clear that it is for the informant to seek the orders of jurisdictional Magistrate for issue of direction to the police for investigation of the case. The Magistrate, on being approached by the informant, if orders 26 Spl. CC 923/2019 investigation, the SHO concerned would get jurisdiction to register the crime, investigate the matter and not otherwise."
11. This Court in the case of Mukkatira Anitha Machaiah Vs. State of Karnataka and another in Crl.P.5934/2009 decided on 20/8/2013 considered the scope of Section 155(1) and (2) of Cr.P.C. has observed in para 5 as follows:-
"5. Section 155 of Cr.P.C. deals with the procedure to be adopted in respect of an information received by the officer in charge of a police station relating to commission of a non- cognizable offence. According to sub- section (1) of Section 155 of Cr.P.C., when an officer in charge of the Police Station receives an information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. According to sub- section (2) of Section 155 of Cr.P.C. no police officer shall investigate a non- cognizable case without a order of a Magistrate having power to try such case or commit the case for trial. Thus reading of sub-section(1) of Section 155 of Cr.P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is 27 Spl. CC 923/2019 only to enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter.
12. This Court in paragraph 6 has further observed as follows:-
"In the case on hand, as noticed supra, upon receipt of the report submitted by the 2nd respondent, the SHO of Virajpet Police Station registered the same as NCR and submitted a requisition to the jurisdictional Magistrate seeking permission to investigate the matter, based on which, the Magistrate granted permission. Thus, the procedure adopted by the SHO is without the authority of law and the same is not contemplated under Section 155 of Cr.P.C. Therefore, the permission granted by the Magistrate on such requisition is also without any basis, as such, the investigation carried on by the police and the charge sheet filed thereon are without the authority of law. Therefore, the prosecution launched against the petitioner is liable to 28 Spl. CC 923/2019 be quashed. However, it is open to Respondent No.2, who is the informant before the police to approach the jurisdictional Magistrate and seek necessary orders as contemplated under Section 155 of Cr.P.C."
13. Therefore, the SHO of the police Station has no authority of law unless the jurisdictional magistrate permits the police officer for investigation of the non- cognizable offence.
14. This Court in the case of Padubidri Members Lounge Vs. Director General and Inspector General of Police in W.P.No.42073- 75/2018 decided on 3/10/2012, considered the mandatory provision of Section 155(1) and (2) of Cr.P.C. where the charge sheet was filed for the offence under Section 87 of the K.P.Act. In paragraphs 6 and 7, this Court has held as follows:-
"6. As per the above provisions, when an Officer-in-charge of the police station receives an information with regard to commission of non- cognizable offence/s, i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no 29 Spl. CC 923/2019 Police Officer shall investigate a non- cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr.P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C., or obtained necessary order as envisaged under Section 155(2) of Cr.P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr.P.C."
15. Again this Court, in the case of Veeranagouda and Others Vs. The State of Karnataka in Crl.P.No.102021/2018 decided on 11/1/2019 considered the requirements of Section 155(1) and (2) of Cr.P.C. and has held in para 9 as follows:-
"The Counsel appearing for the petitioner' also brought to the notice of this Court that when a requisition was given to the Magistrate, only an endorsement is made as permitted to investigate as per section 155 of Cr.P.C. on the very request letter itself and the same is not in accordance with law. The concerned Magistrate did not apply his 30 Spl. CC 923/2019 mind and passed any considered order. On the requisition only an endorsement is made and the same is not the permission in the eye of law. Therefore in reality it is not permission at all and the prosecution has not satisfied the Court that mandatory requirements are complied before proceeding with the investigation in the matter. Legal aspect has not been complied and the same has been over looked by the Court below while ordering for registering the criminal case against the petitioners' herein. Looking to these materials it goes to show that it is the abuse of process of Court to continue the proceedings. Not only it is wasting of valuable time and energy of the Court. Even if the trial is proceeded with, it is a futile exercise in the matter."
As this procedure is not followed, it is fatal to the case of the prosecution.
47. Accused No.2 in this case has produced 2 documents. He is running a cloth shop. So far as running a cloth shop by accused No.2, there is no dispute raised by the prosecution. Merely because, accused No.2 is owning a cloth shop, it does not mean that, he is responsible for commission of the crime. Therefore, if all these factual features are put together, 31 Spl. CC 923/2019 it can be stated that, the prosecution case suffers from material particulars. It is full of contradictions, omissions and discrepancies. No connecting link have been established by the prosecution with legal evidence. Hence, a doubt arises in the case of prosecution. Therefore, I am of the considered view that, the prosecution has utterly failed to prove the guilt of the accused persons to the hilt. Accordingly, I record the above point No.1 in the Negative.
48. Point No.2:- As a result of my foregoing discussion and reasons stated thereon, accused persons are entitled for acquittal. Accordingly, I proceed to pass the following:-
ORDER Acting under Sec.255(1) of Cr.P.C., accused No.1 to 3 stand acquitted of the charge leveled against them for the offence punishable Under Sec.171(E) of IPC.
Bail bond of accused persons stand cancelled and they are set at liberty in this case, if they are not required in any other case.
M.O.1 to 3 are ordered to be disposed 32 Spl. CC 923/2019 off in accordance with law after the appeal period is over, in case of appeal after the disposal of the appeal whichever is later (Dictated to the Stenographer, transcribed and typed by him, same is revised and corrected by me and then pronounced in the Open Court on this the 10 th day of January, 2020) (RAMACHANDRA D. HUDDAR) LXXXI ACC & SJ, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) ANNEXURE:
Witnesses examined by the prosecution.
PW1 J.C. Janardhana PW2 Umesha PW3 Sriramappa PW4 T. Santhosh PW5 Ravikumar PW6 T. Anand PW7 Omkar Naik PW8 M.P. Vishwanath PW9 Ravi N.S.
Witnesses examined by the defence/accused.
-- NIL Documents exhibited by the prosecution.
Ex.P.1 Seizure Panchanama
Ex.P.2 Complaint
Ex.P.3 to Documents and Vouchers
12
33 Spl. CC 923/2019
Ex.P.13 & Photos
14
Ex.P.15 Statement of P.W.6
Ex.P.16 Requisition letter for investigation
Ex.P.17 FIR
Documents exhibited by the defence/accused.
-
-- Nil List of Material Objects marked by the prosecution:-- Nil LXXXI ACC & SJ, Bengaluru City (CCH-82) rag.