Karnataka High Court
Shri. Suresh S/O Rajaram Jorapur vs The State Of Karnataka on 28 July, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28 T H DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100589/2021
BETWEEN:
1. SRI. S URESH S/O. RAJARAM JORA PUR,
AGE 51 YEARS , OCC: BUSIN ESS,
R/O. SOMAVAR PETH, KITTUR,
TQ. BAILHONGAL, DIST. BELAGAVI .
2. MUTTU S/O. S HIV ALINGAPPA ITA GI,
AGE 35 YEARS , OCC: MANAGER,
R/O. HALIYAL, DIS T. KARWAR.
...PETITIONERS
(BY SRI. N.P.VIVEKMEHTA, ADV OCA TE)
AND:
THE STATE OF KARNTAKA,
BY KITTUR PS, TQ. BAILHONGAL,
REPRES ENTED BY ADDL. SPP,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, H.C. BUILDING,
DHARWAD.
... RES PONDENT
(BY SRI.V .M.BANA KAR, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C., SEEKIN G TO SET ASIDE
ORDER OF THE CI VIL JUDGE AND JMFC, KITTUR DATED
29.08.2020 PAS SED IN C.C.N O.223/ 2015 ON
APPLICATION UND ER SECTION 239 OF CR.P.C., AN D
QUASH CRL. PROCEEDINGS IN C.C.NO.223/ 2015
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(CRIME NO.170/ 2020 OF KITTUR P.S .) PENDIN G
BEFORE T HE CIV IL JUDGE AND J MFC, KITTUR, BY
ALLOWING THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned Addl. SPP for the respondent-State.
2. This petition is filed seeking setting aside the order passed by the Civil Judge & JMFC Court, Kittur dated 28.08.2020 in C.C.No.223/2015 on the application filed under Section 239 of Cr.P.C. and to quash the Criminal Proceedings in C.C.No.223/2015 (Crime No.173/2010 of Kittur Police Station), pending before the Civil Judge & JMFC Court, Kittur.
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3. The petitioner No.1 is the owner of the Lodge by name Gajaraj Palace and the petitioner No.2 is the Manager of the said lodge. They are prosecuted along with others for the offence punishable under Sections 3, 4 & 7 of Immoral Traffic (Prevention) Act, 1956 (for short 'Act'). This was after the Deputy Superintendent of Police raided the lodge concerned and found therein certain persons in semi necked position who are accused Nos.3 to 8 found in room Nos.18, 19 and 21 of the lodge. The trial Court on the application discharged accused Nos.3 to 8. The application filed by the petitioners seeking discharge came to be rejected on the ground that the application under Section 239 of Cr.P.C is not maintainable. The contention of the learned counsel for the petitioner is technical one 4 namely that there is no compliance with Section 13 of the Act as regards the status of the Officer who has dealt with the offences concerned herein. What has happened in the present case is that, after the said Dy.S.P. found the above said circumstances in the hotel/lodge, he set the law in motion by lodging the complaint to the SHO of Kittur Police Station. It is the Head Constable of Kittur Police Station who has investigated into the same and submitted the charge-sheet.
4. Section 13(1) of the Act inter alia provides that, for each area there shall be a Special Officer for dealing with the offences under the Act in that area. Sub-section (2) of Section 13 provides that Special Police Officer shall not be below the rank of Inspector of Police. In Delhi Administration Vs. Ram 5 Singh (AIR 1962 SC 63), the Supreme Court held that, the expression 'dealing with the offences' occurring in sub-section (1) of Section 13 of the Act includes power of investigation, and that the offences under the Act can be investigated only by Special Police Officer and not by other Police Officer. The Supreme Court said that the Special Police Officer being competent to investigate, it is only he and his Assistant Police Officers who are the only persons competent to investigate the offences under the Act, and that the Police Officer not specially appointed as Special Police Officer cannot investigate the offences under the Act even though they are cognizable offences.
5. In the State of Madhya Pradesh Vs. Mubarak Ali (AIR 1959 SC 707), while 6 dealing with the provisions of the Prevention of Corruption Act, 1947, the Supreme Court listed several steps involved in the investigation of an offence starting from the receipt of information and ending with the filing of the charge-sheet, thereby making it clear that, even the act of filing of the charge-sheet is a step in course of investigation.
6. The co-ordinate Bench of this Court in the case of M.Rajeswari Vs. State of P.S.I. (L and O), Kengeri Gate Police Station, Bangalore, [2001 (5) Kar. L.J. 532] by referring to the above decisions of the Apex Court has held that, the Sub-Inspector of Police of Kengeri Gate Police Station who is not a Special Police Officer competent to deal with the offences under the Act within the meaning of sub-section (1) of Section 13 of the Act, 7 more so, when he is not of the rank of an Inspector of Police, which would be the minimum condition in view of sub-section (2) of Section 13 of the Act. In the case on hand, the case has been registered and investigation has been done and charge-sheet has been filed by a Head Constable of the Kittur Police Station, who is not a Special Officer who is competent to deal with the offence under the Act, within the meaning of sub-section (1) of Section 13 of the Act, when he is not of the rank of an Inspector of Police, which could be the minimum condition in view of sub-section (2) of Section 13 of the Act. Without considering this aspect, the learned Magistrate has rejected the discharge application filed by the petitioners.
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7. Under the above circumstances, the proceedings initiated against the petitioners requires to be quashed. In the result, the petition is allowed and the proceedings in C.C.No.223/2015 on the file of the Civil Judge & JMFC Court, Kittur (Crime No.170/2010), is quashed.
8. In view of the disposal of the main petition, I.A.No.1/2021 does not survive for consideration.
Sd/-
JUDGE *Svh/-