Karnataka High Court
Sri.Naleen Kumar Kateel vs The State Of Karnataka on 20 November, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
BEFORE
THE HON' BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
WRIT PETITION Nos.25657/2018 (GM-RES) &
28632-28636/2018 & 28639-28643/2018 &
28644-28646/2018
BETWEEN:
1. Sri.Naleen Kumar Kateel,
Member of Parliament
S/o Niranjan Shetty,
Aged about 51 years,
Residing at,
No.20, Ashoka Apartment,
Ashok Nagar, Mangaluru - 575001.
Dakshina Kannada District.
2. Sri.Rajesh Naik,
Member of Legislative Assembly,
Aged about 59 years,
S/o Ramesh Naik,
Odoor farms
Ganjimatha Post,
Mangalore Taluk - 575001.
Dakshina Kannada District.
3. Sri.Sunil Kumar V,
Member of Legislative Assembly,
S/o M.K.Vasudeva,
Aged about 43 years,
Residing at,
"Prerana", Kalabadi Padavu Palli Road,
2
Nitte Village,
Auttur Post,
Karkala Taluk,
Dakshina Kannada - 574104.
4. Sri.Kota Shrinivas Poojary,
Member of Legislative Council,
S/o Annappa Poojary,
Aged about 58 years,
R/at Kota Tattu Grama
Post Kota, Udupi - 576101.
5. Sri.Ganesh Karnik,
Ex-Member of Legislative Council,
S/o Late Subraya Karnik,
Aged about 58 years,
R/at HA 41, His Grace
Beary's Apartment,
Martin Pais Road,
Hathill, Mangalore - 575001.
6. Dr.Prabhakara Bhat
Aged about 75 years,
S/o Ramakrishna Bhat,
Kalladka Post,
Golthamajal Village,
Bantwall Taluk - 574211.
Dakshina Kannada District.
7. Sri.Murali Krishna Hasantadka
S/o B.Rama Bhat,
Aged about 37 years,
Residing at, 4-94,
Hasantadka House,
Biliyooru Katte Post,
Balnad Village, Puttur Taluk - 574201.
Dakshina Kannada District.
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8. Sri.Padmanabha Kottary,
Ex-Member of Legislative Assembly,
Aged about 70 years,
S/o Koraga Kottary,
Kalladka Post,
Golthamajal Village,
Bantwall Taluk,
Dakshina Kannada District.
9. Sri.Devadas Shetty,
Aged about 52 years,
S/o B.Rukmaya Shetty,
Residing at,
S.V.S College Road,
Bantwal Taluk - 574211.
Dakshina Kannada District.
10. Smt.Sulochana G.K.Bhat,
Aged about 54 years,
W/o G.K.Bhat,
Residing at, Mathrushree
Kodambethu Village,
Bantwal Taluk - 574211.
Dakshina Kannada District.
11. Sri.Chennappa Kotyan,
Ex-Zilla Panchayat Member,
Aged about 47 years,
S/o Rukmaya Poojary,
Thota House, Kalladka Post,
Balthilla Village,
Bantwal Taluk - 574211.
Dakshina Kannada District.
12. Sri.Nemiraja Rai,
Aged about 58 years,
S/o Ramana Rai,
Balathur Village Post
Bantwal Taluk - 574211.
Dakshina Kannada District.
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13. Sri.Sharan Kumar @ Sharan Pupwell,
S/o Ravindra,
Aged about 44 years,
R/at # 1/12, Kankanadi,
Bypass Road, Pumpwell,
Mangalore D.K-575002.
14. Sanjeeva Matandoor,
Member of Legislative Assembly,
S/o Devu Gowda,
Aged about 57 years,
R/at # 3-76, Matandoor,
Hirebandadi Post,
Puttur Taluk, D.K-574241.
... Petitioners
(By Sri.Aruna Shyam M, Advocate)
AND:
The State of Karnataka,
Represented by its Inspector of Police,
Station House Officer,
Bantwal Town Police,
Bantwal - 574211.
D.K. District.
... Respondent
(By Sri.Chetan Desai, HCGP)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure praying to quash entire
proceedings in Crime No.0177/2017 by the Bantwal Town
Police, Dakshina Kannada for the offences punishable
under Sections 142, 143, 188, 149 of IPC including
complaint dated 07.07.2017 and FIR registered by the
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respondent police (Annexures - A & B) in so far as these
petitioners and etc.,
These writ petitions coming on for Further
Arguments this day, the Court made the following;
ORDER
These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the entire proceedings in Crime No.0177/2017 of Bantwal Town Police, Dakshina Kannada for the offences punishable under Sections 142, 143, 188, 149 of IPC including complaint dated 07.07.2017 and FIR in so far as the same relates to the petitioners.
2. Heard the learned counsel for the petitioners and learned HCGP.
3. The brief facts leading to the case are as follows:
That on 27.05.2017, the Deputy Commissioner/ District Magistrate had issued Prohibitory Order under Section 144 of Cr.P.C in the District till 03.07.2017 directing that five or more than five persons are not 6 allowed to assemble or move around in the public places or Government Offices, the Public functions should not be held and no activities shall be conducted, disturbing the communal harmony. No visible sign shall be displayed and no paper publication shall be issued. The said order was extended till midnight of 11.07.2017.
4. On 07.07.2017 at about 10.30 a.m. on B.C. Road, near Bus Station, the petitioners and other 1,200 party workers assembled together despite Prohibitory Order issued by the Deputy Commissioner and took out procession for protest. Therefore, the Police Sub-Inspector of Bantwala Town Police Station submitted a report/ complaint dated 07.07.2017 to JMFC, Bantwala. FIR came to be registered in Crime No.0177/2017 at the Bantwal Town Police, Bantwal, Dakshina Kannada against the petitioners and some other persons, who had participated in the procession.
5. Learned counsel for the petitioners strenuously contended that in the present case, Deputy Commissioner, 7 Mangalore, had issued Prohibitory Order under Section 144 of Cr.P.C. The complaint averments are that the said order had been violated by the petitioners and other party workers. In the event of violation of this order issued by the Deputy Commissioner, the complaint should have been filed by the Deputy Commissioner himself. But, in the present case, the Police Sub-Inspector of Bantwala Town Police Station has initiated the proceedings, which is not in accordance with law.
6. Per contra, the learned HCGP fairly conceded that the complaint/report had been filed by the Police Sub- Inspector, Bantwala Town Police Station instead of Deputy Commissioner, Mangalore who had issued Prohibitory Order.
7. As could be seen from the records, at Annexure-A the report submitted before the Additional Civil Judge and JMFC, Bantwala disclose that Sub-Inspector of Police, Bantwal Town Police Station, Bantwal had submitted the 8 report and FIR was registered against the petitioners and some other accused also. Thus, it is evident that the complaint/report was filed by the person who had no locus-standi to initiate the proceedings.
8. In the decision of this Hon'ble Court in Criminal Petition No.1498/1998 in the case of B.Ashok Shenoy vs. The Station House Officer, Puttur, Dakshina Kannada. The Hon'ble Apex Court has held as under;
"Criminal-Quashing of proceedings - Offence committed punishable under Sections 155 and 188, Indian Penal Code, 1860 (IPC) - Petition filed for quashing of proceedings - Held, locus standi of the complainant - Police Inspector was questioned and if the complaint was filed by a person who had no authority to file the complaint as required under Section 195, of Code of Criminal Procedure, 1973 then the Court could not take cognizance of the offence."
"8. It is a settled question of law that objection regarding locus standi to file complaint goes to the very jurisdiction of the 9 case and should be raised before the Trial Court at the earliest opportunity and decided as a preliminary issue. In this case, the locus standi of the complainant i.e., the Police Inspector is questioned and if the complaint is filed by a person who has no authority to file the complaint as required under Section 195, Criminal Procedure Code then the Court cannot take cognizance of the offence."
9. In the present case, it is an undisputed fact that Deputy Commissioner, Dakshina Kannada District had issued an order under Section 144 of Cr.P.C for a period from 27.05.2017 to 11.07.2017. However, the complaint was filed by the Sub-Inspector of Police, Bantwal Town Police Station, Bantwal stating that the petitioners and others party workers have taken out procession in violation of the said order.
10. It is settled law that the complaint must be filed by the public servant who has promulgated the order and he cannot authorize any person to do it. The complaint under Section 188 of IPC should be filed by the District 10 Magistrate/District Commissioner whose order has been disobeyed and not by the Police. The order passed by the District Magistrate/District Commissioner under Section 144 of Cr.P.C is an order issued by the Public Servant and he has to file the complaint, if there is a violation of the prohibitory order.
11. Considering the records and submission made by the learned counsel for the petitioners, it is evident that the report issued by the Sub-Inspector of Police, Bantwal Town Police Station, Bantwal is not in accordance with law. As such, the proceedings initiated on the basis of the said complaint/report calls for interference.
12. In the above circumstances, I pass the following;
ORDER The criminal petitions are allowed.
The Complaint/Report dated 07.07.2017, FIR and entire proceedings in furtherance of FIR in Crime No.0177/2017 registered by the 11 Bantwal Town Police, Bantwal, Dakshina Kannada are hereby quashed.
Petitioners are discharged.
SD/-
JUDGE NBM