Karnataka High Court
Mr Hariraj Shetty vs The State Of Karnataka on 19 April, 2022
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION No.35587 OF 2017 (GM-RES)
CONNECTED WITH
WRIT PETITION No.20564 OF 2019 (GM-RES)
IN WRIT PETITION No.35587 OF 2017
BETWEEN
MR HARIRAJ SHETTY
S/O B VASANTHRAM SHETTY,
AGED 53 YEARS,
NO.15, BASEMENT,
CUNNIGHAM ROAD,
BENGALURU - 560 001. ... PETITIONER
(BY SRI SANKET M YENAGI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU 560001.
2. THE COMMISSIONER OF POLICE
INFANTRY ROAD
BENGALURU - 560 001.
3. THE DEPUTY COMMISSIONER OF POLICE
CENTRAL DIVISION
BENGALURU CITY - 560 001.
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4. THE INSPECTOR OF POLICE
ASHOK NAGAR POLICE STATION
BENGALURU - 560 001.
5. SRI. M.S. RAMESH RAO
INSPECTOR OF POLICE
CITY CRIME BRANCH
N.T. PETE
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1 TO R4
R5 SERVED, UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C PRAYING TO DECLARE THAT
IMPLICATING THE PETITIONER IN CRIME NO.305 OF 2017 OF
ASHOKNAGAR POLICE STATION FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 79 AND 80 OF KARNATAKA
POLICE ACT 1963 AND SECTIONS 332, 336, 353, 506(B) OF
IPC, IS CONTRARY TO THE LAW LAID DOWN BY THIS COURT
AND WITHOUT THE AUTHORITY OF LAW.
IN WRIT PETITION No.20564 OF 2019
BETWEEN
MR HARIRAJ SHETTY
S/O B VASANTHRAM SHETTY,
AGED 55 YEARS,
NO.15, BASEMENT,
CUNNIGHAM ROAD,
BENGALURU - 560 001. ... PETITIONER
(BY SRI SANKET M YENAGI, ADVOCATE)
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AND
1 . THE STATE OF KARNATAKA
VIDHANA SOUDHA,
BENGALURU - 560 001,
REP BY ITS SECRETARY,
DEPARTMENT OF HOME AFFAIRS.
2 . THE SUB INSPECTOR OF POLICE
CUBBON PARK POLICE STATION,
BENGALURU CITY,
BENGALURU - 560 001
... RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C PRAYING TO PROHIBIT THE LEARNED
8TH ADDL. CMM COURT FROM EXERCISING ANY JURISDICTION,
POWER OR AUTHORITY IN RESPECT OF THE PROCEEDINGS OF
C.C.NO.13838/2015 IN PURSUANCE TO FIR IN CRIME
NO.0200/2014; QUASH ALL THE PROCEEDINGS OF
C.C.NO.13838/2015 PENDING BEFORE THE LEARNED 8TH
ADDL. CMM COURT IN PURSUANCE TO FIR IN CRIME
NO.0200/2014 AT ANNEXURE-C. GRANT AN INTERIM ORDER TO
STAY ALL THE PROCEEDINGS OF C.C.NO.13838/2015 PENDING
BEFORE THE LEARNED 8TH ADDL. CMM COURT IN PURSUANCE
TO FIR IN CRIME NO.0200/2014.
THESE WRIT PETITIONS ARE COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
W.P.No.35587/2017 is filed by the petitioner- accused No.3 under Articles 226 and 227 of the Constitution of India, read with Section 482 of Cr.P.C. for quashing the FIR in Crime No.305/2017 registered by Ashok Nagar Police Station for the offences punishable under Sections 79 and 80 of Karnataka Police Act 1963 and Sections 332, 336, 353, 506 (b) of IPC pending on the file of XLIII Additional Chief Metropolitan Magistrate at Mayo Hall, Bangalore.
2. W.P.No.20564/2019 is filed by the same petitioner/accused (who is accused No.1 in Crime No.200/2014) under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C for quashing the criminal proceedings registered by the Cubbon Park police station in Crime No.200/2014 for the offences punishable under Section 188 of IPC and under Sections 78 (B) and 79 of the Karnataka 5 Police Act, 1963 pending before 8th ACMM, Bengaluru in CC.No.13838/2015.
3. Both the petitions are filed by the same petitioner and the issues involved is common in nature, therefore taken together for common disposal.
4. Heard learned counsel for the petitioner in both the cases and learned HCGP for State.
5. The case of the petitioner in W.P.No.35587/2017, is that the CCB police received a credible information on 27.07.2017 that there was video game gambling which was running at New Royal Tech Recreation Association Club, Residency Road, Bangalore. Therefore, after obtaining the permission of the Magistrate and obtaining search warrant from the higher officials the police along with the witnesses raided the spot at "Empire Estate Building, No.56, New Royal tech Recreation Association, Residency 6 Road, Bengaluru, where they found about 7 to 8 persons were involved in video gambling and also they were disturbing the public peace and tranquility. After entering the place they found some of the persons and the police asked them to stand by the side of the room and at that time accused No.1-Jamphel Dorjee took up a pistol and pointed towards the Sub- Inspector and threatened to leave them and also he said to have obstructed the public servant while discharging the duty by creating fear of causing injury. Subsequently, the Sub-Inspector fired through his gun towards the ground and thereafter accused No.1 surrendered and on verification the said pistol held by accused No.1, is said to be a toy pistol used as lighter. Subsequently, all the accused persons were arrested and on enquiry it was revealed by them that this petitioner is the owner of club, therefore FIR has been lodged by the police for the above said offences 7 against the petitioner as accused No.3 and he was shown as absconding, which is under challenge.
6. In W.P.No.20564/2019 one Naveen Supekar- Police Officer filed Suo-moto complaint and alleged that on 19.09.2014 at 8.30 p.m. when he was on patrolling duty at Cubbon Park and received information that at No.10, Brigade Road, Ground Floor, 5th Avenue, Bengaluru at Fantastic-3 Recreation Club they were running gambling and this police immediately went along with panchas and obtained the permission from higher authority for search warrant and went to the spot at 8:55 PM and observed some persons were playing the games by showing names of Adidas, Puma, Fila, Nika, Reebok, Joker with assurance to pay more than double the money by playing the gambling. Immediately, the police arrested 17 members, out of them, some of them were club members and some of them were non 8 club members. The articles were seized and registered in Crime No.200/2014 for the offences punishable under Section 188 of IPC and Sections 78(B) and 79 of Karnataka Police Act, 1963 (hereinafter referred as KP Act) which is under challenge and also filed charge sheet, which is also under challenge
7. Learned counsel for the petitioner has contended that the offences punishable under Sections 78 (B) and 79 of KP Act, are non-cognizable offences and the police have no authority to register FIR and also investigate the matter without obtaining prior permission of the Magistrate which is required under Section 155 of Cr.P.C and even otherwise in the first case where he has shown accused as accused No.3 and as owner of the both the clubs but no documents produced by the prosecution to show he is owner of the said clubs and if at all he is the member of the club, he cannot be said as the owner of the club 9 and without obtaining permission, registering the FIR and filing the charge sheet is violation of Section 155 of Cr.P.C. Therefore, no criminal proceedings is sustainable and hence liable to be quashed. The learned counsel also contended that IPC offences alleged against this petitioner in the first case registered by CCB Police is against accused No.1 and there is no allegation against this petitioner except a sentence stating that he is owner of the club. Absolutely there is no material to show that he is the owner of the club for running the gambling and received any money from the public. Such being the case conducting criminal proceedings against the petitioner is abuse of process of law and reliable to be quashed.
8. Learned counsel for the petitioner also lodged the complaint to the DG and IGP in the year 2016 against the police officials for demanding bribe and 10 harassing the clubs and other persons. Therefore as vengeance the police, one after the other are registering false cases against the petitioner by showing him as owner of the club and therefore prayed for quashing the petition.
9. Learned counsel also submits the requisition made by the police to the Magistrate for granting permission and the learned Magistrate not accorded proper permission by application of mind. There is no detailed order passed by the Magistrate for granting permission. Therefore their permission itself is not in accordance with law, hence criminal proceedings cannot be sustainable.
10. Per contra learned HCGP seriously objected for the petition and contended that in the first case registered by CCB police after receiving credible information, they obtained the permission of 11 Magistrate the I ACMM, Bangalore and visited the spot and after obtaining search warrant from the Assistant Commissioner of Police there they found the accused persons playing video games and were involved in the gambling, they raided the spot and asked the persons to come and stand on the side of the road, at that time accused No.1 in Crime No.305/2017 who was a security guard took up the pistol and pointed towards Sub-Inspector and he has uttered word that he will kill all of them stating that "Mujhe Chod do nahito sabko maardega" and then after the police officials had no other way to fire gunshot on the ground near the feet of the accused No.1. Thereafter he surrendered with that gun which was found to be a fake gun which was only a lighter but not a gun. Therefore, the police registered the case both under Sections 79 and 80 of Karnataka Police Act, 1963 and Sections 332, 336, 353, 506(B) 12 of IPC. Further contended that though the permission was granted for non-cognizable offence the police officials also found a cognizable offence made out and the investigation is still under progress, but charge sheet is not yet filed. Such being the case, question of quashing criminal proceedings does not arise. Hence prayed for dismissal of the petition.
11. Learned HCGP also submits the petitioner himself has admitted as the owner of the club and he has filed an application before the Magistrate for releasing the articles in another case and also filed one more case challenging the similar case which came to be dismissed in Crl.P.No.3317/2014 C/w Crl.P.No.4129/2014 dated 31.07.2014 and absolutely there is no violation of any provisions of law under Section 155 of Cr.P.C, hence prayed for dismissing the petition and seeking permission to proceed with the investigation.
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12. Learned HCGP also objected the second petition W.P.No.20564/2019 which was registered by the Cubbon Park Police where he has stated that petitioner not only played the games and did gambling but also violated the public ordinance and rules, thereby they also committed offence under Section 188 of IPC, which is cognizable offence. Therefore, when the cognizable offence is made out there is no question of obtaining any permission of the Magistrate required under Section 155 of Cr.P.C. Therefore the police after investigation filed charge sheet and absolutely there is no ground for quashing the charge sheet, hence prayed for dismissal.
13. The learned counsel for the petitioner in reply also contended that the police also registered one more case against the petitioner and it was challenged by the petitioner in W.P.No.14076/2021 14 which came to be allowed and criminal proceedings against him was quashed vide order dated 08.03.2022 and also contended that the police in the habit of registering false cases against him and therefore prayed for quashing the criminal proceedings.
14. Having heard the arguments and perused the records in both cases. In respect of Crime No.305/2017 registered by the CCB police one Ramesh Rao, received credible information and he said to have sent message for requesting the Magistrate Court for permission and accordingly Magistrate has agreed and accorded the permission. The copy of the requisition produced by the learned HCGP reveals the CCB police requested the Magistrate on 27.07.2017 and the Magistrate endorsed it, as permitted. Subsequently, the CCB police raided this spot where other accused persons were found along with accused No.1, the security guard. Subsequently, 15 he is said to have threatened the police officials with dire consequences by showing the toy gun which is a lighter and he has obstructed the police officials while discharging their official duty during conducting raid and seizing the articles. The co-ordinate bench of this court in various judgment especially in Ravikumar S/o. Bhimsen Kase Vs State of Karnataka and Anr in Crl.P.No.100555/2014 dated 04.04.2014 has categorically held that the learned Magistrate while according permission under Section 155 Cr.P.C he has applied his mind and given the permission for registering the FIR and filed the charge sheet.
15. The Division Bench in Vaggeppa Gurulinga Jangaligi vs. The State of Karnataka through PSI, Kagwad Police Station, Belagavi in Criminal Petition No.101997/2019 dated 10.12.2019 has issued guidelines at paragraph No.20 of the judgment which is as under:
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"20. Therefore, under Rule 1, 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 of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.
i) 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.
(ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how 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.
iii) 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.17
iv) 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.
v) 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."
13. Admittedly, in this case the CCB police requested the Magistrate for according permission to conduct raid, registering the case and filing FIR and charge sheet was filed. Admittedly, the learned Magistrate endorsed the same as permitted and there is no application of mind, therefore no criminal proceedings can be initiated against this petitioner under provision of Section 79 and 80 of KP Act. Apart 18 from that, this petitioner has stated in his petition that he is only legal consultant and he is said to be the film producer. Though the police did not produce any document to show he is the owner of the club, in this case. However the petitioner himself admitted in the other case by filing application for releasing the property as he is the owner of the property. Such being the case, it cannot be said that he is not the owner of the club and he has not been clear, how he is legal consultant to the recreation club. If he is not the owner, what is the necessity for filing complaint against the police official before the DG and IGP. Of course, the provisions of Sections 79 and 80 of KP Act cannot be initiated against this petitioner, in view of no proper permission by the Magistrate. Therefore the FIR registered against this petitioner in respect of offence under Sections 79 and 80 of KP Act have to be quashed. However, the offence under section 332, 19 336, 353, 506 (b) of IPC are against accused No.1 who is a security guard who threatened and obstructed the police officials and also showed criminal force on them while discharging the duty, therefore this petitioner has nothing to do with the offences alleged in the complaint in respect of IPC offences and he was also not on the spot, therefore the petition in respect of Crime No.305/2017 is liable to be allowed against this petitioner in respect of offence for the KP Act.
14. As far as in the second case where the Cubbon Park Police registered suo moto complaint for the violation of the rules and ordinance the State Government, which attracts Section 188 of IPC, other than the K.P. Act of course for registering the FIR and filing charge sheet under the KP Act which is non- cognizable offence and if permission is mandatory under section 155 (2) of Cr.P.C, but the FIR itself 20 registered against the petitioner and others for the offences under section 188 of IPC which is a cognizable offence. Therefore there is no need for police to seek any prior permission for registering the FIR, in view of Section 155 (4) of Cr.P.C.
15. That apart though the petitioner denied that he is not owner and connected with the club, but he himself has filed application before the Magistrate for releasing the articles and police also after due investigation filed charge sheet against him and others showing he is the owner of the Fantastic3 Recreation club. Though the petitioner made so many allegations against police officials for registering false complaints but if he is not connected with the club either as owner or as member the question of making any complaint against the police officials to the higher police authorities does not arise. Therefore, considering the facts and circumstances of the case 21 when the cognizable offences made out the question of quashing criminal proceedings does not arise and seeking permission also not required. As per Section 155 (4) of Cr.P.C when one of the offence is cognizable offence and other offence is non-cognizable offence made out together, the question of taking any permission under Section 155 of Cr.P.C does not arise, therefore the question of quashing criminal proceedings against the petitioner in respect of Crime No.200/2014 does not arise.
Accordingly I pass following order.
The Writ Petition filed by petitioner in WP.No.35587/2017 is allowed. The criminal proceedings against this petitioner in respect of the FIR in Crime No.305/2017 registered by Ashok Nagar Police Station for the offences punishable under Sections 79 and 80 of Karnataka Police Act 1963 22 against the petitioner, pending on the file of XLIII Additional Chief Metropolitan Magistrate at Mayo Hall, Bangalore, is hereby quashed.
W.P.No.20564/2019 registered in respect of Crime No.200/2014 for the offences punishable under Section 188 of IPC and under Sections 78 (B), 79 of the Karnataka Police Act, 1963 pending before the 8th ACMM, Bengaluru in CC.No.13838/2015, is hereby dismissed Accordingly, the writ petitions are disposed of.
Sd/-
JUDGE AKV