Karnataka High Court
Nasurulla S/O Abdulbasher Pattegoudar vs The State Of Karnataka on 9 December, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 103258 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 103258 OF 2022 (482-)
BETWEEN:
NASURULLA S/O BASIRSAB PATTEGOUDAR
AGE.32 YEARS OCCU. PRIVATE WORK
R/O AT HIRAHALLI, TQ. BYADAGI, DIST. HAVERI-581110.
...PETITIONER
(BY SRI. MANATESH HIREMATH FOR SRI.RAJA RAGHAVENDRA
V.NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH SUB URBAN POLICE STATION HUBBALLI
NORTH SUB DIVISION HUBBALLI
DIST. DHARWAD
REPRESENTED BY
STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT DHARWAD-580011.
...RESPONDENTS
(BY SRI. V.S.KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.PC.,SEEKING TO ALLOW THIS PETITION BY QUASHING THE
PROCEEDINGS IN C.C NO. 3495/2022 IN CRIME NO. 81/2022
REGISTERED WITH HUBBALLI SUB URBAN POLICE STATION,
HUBBALLI, DHARWAD DISTRICT FOR THE OFFENCES PUNISHABLE
UNDER SECTION 78 (3) OF KARNATAKA POLICE ACT, PENDING ON
THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC COURT AT
HUBBALLI.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 103258 of 2022
ORDER
Petitioner/accused No.2 and another accused have been charge sheeted for the offence punishable under Section 78(3) of the Karnataka Police Act, alleging that they were playing "Matka" in a public place. Learned Magistrate after accepting the charge sheet took the cognizance of the aforesaid offences and issued summons. Taking exception to the same, this petition is filed.
2. Learned counsel appearing for the petitioner submits that the FIR was registered for the aforesaid offence, in the absence of a valid order passed under Section 155(2) CR.P.C. in support he places reliance on the decision of the co-
ordinate Bench Crl.P.No.101997/2019.
3. Learned HCGP appearing for the respondent-State submits that the learned Magistrate has endorsed permitted on the requisition sent by Police and as such FIR was registered after obtaining permission from learned Magistrate as specified 155(2) Cr.P.C .
4. I have examined submissions made by the learned counsel for the parties.
-3- CRL.P No. 103258 of 20225. Perusal of the order passed by the learned Magistrate indicates the learned magistrate has endporsed permitted on the Police requisition. The Co-ordinate Bench of this Court in W.P.No.101997/2019 at 20, 21 and 22 as held as follows:
20. Therefore, under Rule I, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the police officer or the police officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr.P.C. and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.
a. The Jurisdictional Magistrates shall stop hereafter making endorsement as 'permitted' on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr.P.C.
b. When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how -4- CRL.P No. 103258 of 2022 it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.
c. When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.
d. The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence. e. In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than informant or the complainant.
-5- CRL.P No. 103258 of 202221. Coming to the case on hand, the SHO of Kagwad police station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P.Act which is a non-cognizable offence. The learned Jurisdictional Magistrate has made and endorsement on the requisition which reads as follows:-
"Perused materials. Permitted Sd/-"
22. Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the police to investigate the non-cognizable offence much less an order passed by the learned Magistrate.
6. Hence, the charge sheet filed against the petitioner/accused stands vitiated for non-compliance of Section 155(2) Cr.P.C. Accordingly, I pass the following:
ORDER The criminal petition is allowed.
The impugned proceeding in C.C.No.3495/2022, pending on the file of the Principle Civil Judge and JMFC Court, at -6- CRL.P No. 103258 of 2022 Hubballi, insofar as it relates to the petitioner/accused No.2 is hereby quashed.
Sd/-
JUDGE AC List No.: 1 Sl No.: 251