Karnataka High Court
Suresh S/O. Kallappa Aralikatti vs The State Of Karnataka on 26 March, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC-D:5756
CRL.P No. 103244 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103244 OF 2023
BETWEEN:
SURESH S/O KALLAPPA ARALIKATTI,
AGED ABOUT 43 YEARS, OCC. ADVOCATE,
R/O. MUGALI VILLAGE, TQ. SHIGGAON,
DIST. HAVERI, PIN CODE-581205.
... PETITIONER
(BY SRI. VIJAY S. CHINIWAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
TADAS POLICE STATION, TADAS,
R/BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
2. TIPPANNA S/O DHARAMU RATHOD,
AGED ABOUT 32 YEARS,
OCC. ENGINEER IN TALUK
PANCHAYATH SHIGGAON,
Digitally signed
R/BY ITS STATE PUBLIC PROSECUTOR,
by
VIJAYALAKSHMI
M KANKUPPI
Location: HIGH
VIJAYALAKSHMI COURT OF
HIGH COURT OF KARNATAKA,
M KANKUPPI KARNATAKA
DHARWAD
BENCH
Date:
2024.03.28
DHARWAD BENCH, AT: DHARWAD.
11:25:33 +0530
... RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDING AGAINST THE
ACCUSED/PETITIOER IN C.C. NO.507/2023 (TADAS P.S. CRIME
NO.43/2023) PENDING BEFORE CIVIL JUDGE AND JMFC COURT
SHIGGAON FOR THE OFFENCE PUNISHABLE U/SEC. 188 AND 171(H)
OF IPC IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:5756
CRL.P No. 103244 of 2023
ORDER
This petition is filed praying to quash the entire proceedings against the petitioner/accused in CC No.507/2023 (Tadas P.S. Crime No.43/2023) on the file of the learned Civil Judge and JMFC, Shiggaon, registered for the offences punishable under Sections 188 and 171(H) of the Indian Penal Code (hereinafter referred to as the 'IPC' for short).
2. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for the respondents.
3. Respondent No.2, who was working as Engineer in Taluk Panchayath, Shiggaon along with 4 others, was appointed as plying squad for Mundargi Hobli, Shiggaon taluk by the Deputy Commissioner. He received 3 photos sent by the Tahsildar on 01.05.2023 and he has been informed that on 30.04.2023 at about 7:00 pm, the petitioner/accused who is belonging to Jyatateeta Janatha Dal was canvassing at Maliyamma Temple of Timmapur -3- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 village. On the basis of the said information, respondent No.2 filed a compliant before the SHO Tadas Police Station. Based on the said complaint, the Tadas Police have registered a case against the petitioner in Crime No.43/2023 for the offences punishable under Sections 188 of IPC and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988. The police after investigation filed charge-sheet against the petitioner for offence under Section 171(H) and 188 of IPC. Based on the said charge-sheet, a case came to be registered against the petitioner in CC No.507/2023 pending on the file of the learned Civil Judge and JMFC, Shiggaon. The petitioner has sought quashing of the said criminal case.
4. Learned counsel for the petitioner placing reliance on the decision of the Co-ordinate Bench of this Court in the case of K.S. Eshwarappa Vs. State of Karnataka and another1, contends that cognizance for offence under Section 188 IPC cannot be taken on police report but it has to be taken on a complaint in writing filed by the public 1 Criminal Petition No.201195/2015 DD 13.04.2016 -4- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 servant in view of Section 195 of Cr.P.C. He, further basing on the said decision contends that offence under Section 171(H) of IPC is a non-cognizable offence and the police have not obtained permission of the Magistrate to conduct investigation as required under Section 155(2) of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C', for short). With this, he prayed for quashing the proceedings.
5. The learned AGA would contend that the learned Magistrate based on the charge-sheet has taken cognizance for the offences under Sections 188 and 171(H) of IPC and there are no grounds for quashing the proceedings .
6. Having heard the learned counsels, this Court has perused the records.
7. Charge-sheet has been filed against the petitioner for the offences under Sections 188 and 171(H) of IPC. The learned Magistrate based on the said charge-sheet has taken cognizance against the petitioner for offences under Sections 188 and 171(H) of IPC. The Co-ordinate Bench in -5- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 the case of K.S. Eshwarappa (supra), considering similar case for offence under Section 188 of IPC observed thus:
6. As could be seen from the provision of Section 195 of Cr.P.C., it says that, -
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-
1) No Court shall take cognizance-
(a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) xxx xxx xxx xxx xxx The above said provision clearly creates a statutory bar to the Court for taking cognizance unless the complaint in writing is made by the public servant concerned or some other public servant to whom he is administratively subordinate. In view of the above, the said provision -6- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 takes away the general power of the Magistrate under Section-190 of Cr.P.C.
7. On perusal of the records, there is no complaint in writing lodged by the 2nd respondent before the jurisdictional Magistrate alleging the offence under Section 188 of IPC. On the other hand, he has submitted a report to the police for investigation. The registration of a case by the police under Section 188 of IPC itself is illegal. On the date of registration of the case itself, the bar under Section 195 of Cr.P.C. was operating and the police gets no jurisdiction even to register the case under Section 188 of IPC. Once an illegality perpetrates into the investigation, such investigation is hit by the statutory principles, then it cannot be construed as a legal proceeding or a legal investigation by the police. Therefore, as rightly contended by the learned counsel, the Magistrate could not have taken cognizance for the offence under Section 188 of IPC without there being a private complaint in writing by the public servant."
8. In the case on hand also, no complaint in writing has been lodged by second respondent before the jurisdictional Magistrate alleging offences under Section 188 of IPC. Therefore, the learned Magistrate taking cognizance against the petitioner for offence under Section 188 of IPC is -7- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 without there being a private complaint in writing by the public servant.
9. The other offence alleged against the petitioner is, offence under Section 171(H) of IPC. The said offence is non-cognizable offence. As per Section 155(2) of Cr.P.C., permission of the Magistrate is required to be obtained for investigating a non-cognizable offence. In the case on hand, no permission has been taken by the police for the purpose of investigating the offence under Section 171(H) of IPC. Therefore, the learned Magistrate ought not to have taken cognizance against the petitioner for offences under Sections 188 and 171(H) of IPC. In the said K.S Eshwarappa's case, the Co-ordinate Bench of this Court has observed as under:
10. In this background, this Court had an occasion to deal the similar matter in Writ Petition No.23611/2015 disposed of on 16.06.2015 between Sri. Manikanta Vs. The State of Karnataka and others, wherein also the police have registered a case in Crime No.167/2014 for the offences punishable under Sections 78 & 79 of Karnataka Police Act, 1963 and also under Section 188 of IPC. The Court coming to the conclusion that the registration of the case under Section -8- NC: 2024:KHC-D:5756 CRL.P No. 103244 of 2023 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C., held that the remaining provision under Sections 78 & 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, the Court has quashed such proceedings."
11. In view of the above, the proceedings in CC No.507/2023 pending on the file of the learned Civil Judge and JMFC, Shiggaon, against the petitioner for offences under Sections 171(H) and 188 of IPC deserve to be quashed.
12. In the result, the following:
ORDER The petition is allowed. The entire proceedings in CC No.507/2023 pending on the file of the learned Civil Judge and JMFC, Shiggaon, for offences under Sections 188 and 171(H) of IPC against the petitioner are hereby quashed.
Sd/-
JUDGE kmv ct:bck