Karnataka High Court
Andaneppa S/O Basalingappa Havaldar vs State Of Karnataka on 11 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 3504
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.101648/2017
BETWEEN:
1. ANDANEPPA
S/O BASALINGAPPA HAVALDAR
AGE: 50 YEARS, OCC: BUSINESS,
R/O: AMARAVATI VILLAGE,
TQ: HUNGUND,
DIST: BAGALKOTE.
2. DODDANAGOUDA
S/O GUNDANAGOUDA PATIL,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: ILKAL, TQ: HUNGUND,
DIST: BAGALKOTE.
3. ADAPPA
S/O BASATTEPPA MERNAL,
AGE: 45 YEARS, OCC: BUSINESS,
R/O: ILKAL, TQ: HUNGUND,
DIST: BAGALKOTE.
4. VEERAPPA
S/O SHIDDAPPA GONAL @ ANGADI,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: ILKAL, TQ: HUNGUND,
DIST: BAGALKOTE.
... PETITIONERS
(BY SRI. S B HEBBALLI, ADVOCATE)
:2:
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DAHRWAD,
(PERTAINING TO ILKAL POLICE STATION)
2. TAMMANNA
S/O BHIMAPPA UNNIBHAVI,
AGE: 52 YEARS, THE SECRETARY,
AGRICULTURE PRODUCE
MARKETING COMMITTEE,
HUNGUND,
DIST: BAGALKOTE.
... RESPONDENTS
(BY SMT. SEEMA SHIVA NAIK, HCGP FOR R1;
SRI. VIJAYKUMAR B. HORATTI, ADV. FOR R2)
--
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE ENTIRE
PROCEEDINGS PURSUANT TO COMPLAINT FILED BY THE
RESPONDENT NO. 2 ON 10.01.2017 REGISTERED BY
ILKAL POLICE CRIME NO. 3 OF 2017 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 171(E), 171(H) IPC AND
SECTION 122 R/W 24(A) OF KARNATAKA AGRICULTURAL
PRODUCE MARKETING (REGULATION AND
DEVELOPMENT) ACT 1966 AND FIR SENT TO THE
JURISDICTIONAL MAGISTRATE NAMELY ADDL. CIVIL
JUDGE (JR.DN.) AND JMFC COURT HUNGUND, DISTRICT
BAGALKOT, AND DISMISS THE COMPLAINT AGAINST THE
PETITIONERS.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
:3:
ORDER
This petition has been filed by the petitioners/accused Nos. 1 to 4 under Section 482 Cr.P.C. praying to quash the proceedings initiated in Crime No.3/2017 of Ilkal Police Station for the offences punishable under Sections 171(E) and 171(H) of IPC and also under Section 122 R/w. Section 24(a) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (hereafter referred to as 'the APMC Act', for short).
2. I have heard the learned counsel for the petitioners and the learned HCGP for the 1st respondent-State.
3. The facts leading to the case are that, petitioner/accused No.1 is duly elected member of APMC, Hungund and accused Nos.2 to 4 are also having traders license issued by the APMC, Hungund :4: and carrying on business within the premises of APMC, Ilkal. They are also registered voters for election to the members of APMC. The elections were declared and the Deputy Commissioner, Bagalkote issued calendar of events by notification dated 16.12.2016 and the elections were scheduled to be held on 21.01.2017. In the said election, accused No.1 was declared as duly elected. The Tahasildar Hungund was appointed as Returning Officer for the said election. The respondent No.2 filed a complaint to Ilkal Police on 10.01.2017 alleging that, on 07.01.2017 on a reliable information, in the shop premises of accused No.3, all accused persons have arranged lunch for about 200 persons in support of the candidate i.e., accused No.1 and have done illegal activities and after informing the higher authorities, along with panchas and the police officials, he went to the spot and drawn the mahazer in the shopping premises of accused No.3. It is further alleged that, many persons have assembled and they told that :5: the said party has been arranged by the accused No.1. It is also seen that, for the purpose of getting elected, a cash of Rs.500/-, Rs.1000/-, shirts, pants and dhotis were also distributed to the voters by the candidates. Even no permission has been obtained for hoisting the lunch in the said shop premises. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioners that, the alleged offences are non- cognizable offences and as such, the prior permission of the Magistrate is required to investigate the case under Section 155(2) of the Cr.P.C. Without obtaining any prior permission, the concerned Ilkal Police investigated the case and filed the charge sheet in Special C.C.No.791/2018. It is his further submission that, when the case is a non-cognizable case, then the mandatory provisions of Section 155(2) of Cr.P.C. has to be complied with. The said Section has given a safeguard and the police could not have embarked upon :6: the investigation into the alleged offence without the order of the Magistrate having a power to try such cases. No such material has been produced by the prosecution to substantiate the fact that the prior permission has been obtained form the Magistrate. On these grounds, he prayed to allow the petition and to quash the proceedings in Crime No.3/2017 of Ilkal Police Station.
5. Per contra, learned HCGP submitted that the respondent No.2 with a permission of the higher authorities went along with the police and a mahazer has been drawn and illegalities have been noticed and on the basis of the said illegalities, a complaint has been registered and thereafter investigation has been undertaken and charge sheet has been filed. It is her further contention that, already investigation has been completed and charge sheet has been filed. If at all the petitioners are having any grievance, they can apply for :7: discharge and appropriate order may be obtained. On these grounds she prayed to dismiss the petition.
6. I have gone through the said submissions made by both the counsel carefully and cautiously and I have also gone through the records submitted along with petition and other material.
7. By going through the allegations made in the complaint and other materials, it is alleged that the Secretary of the APMC came to know that, on 07.01.2017, some illegal activities were carried in the shop premises of accused No.3 and therein, lunch is arranged to 200 persons in connection with APMC elections and there they were also distributing cash of Rs.500/-, Rs.1,000/-, shirt, pant and dhoti and they were canvassing for election to his post. The offence leveled against the petitioners is under Section 171(E) and 171(H) of IPC and also under Section 122 R/w. Section 24(a) of the APMC Act. It is an admitted fact :8: that all these offences are non-cognizable offences. When a non-cognizable case has been registered against the accused, then the provisions of Section 155(2) of the Cr.P.C. will come into play. As per Section 155(2), the respondent Police have no authority to investigate into the alleged offence without the order of the Magistrate having power to try the said cases. In many of the decisions of this Court, this Court has taken a consistent view that the provisions of Section 155(2) of Cr.P.C. is mandatory in nature and violation to comply with the said mandatory requirement is an incurable defect amounting to illegality vitiating the entire proceedings. It is the contention of the learned HCGP that, before lodging the complaint by the respondent No.2, he has informed the same to the higher authorities and thereafter along with police he went and conducted panchanama and a case has been registered and after investigation charge sheet has been filed. But nowhere the iota of evidence has been produced to show :9: that investigation has been conducted with a prior permission of the learned Magistrate having jurisdiction in this behalf. Once such irregularity has been occurred during the course of investigation, then it goes without saying that the entire proceedings initiated and the charge sheet filed is without there being any authority and there is illegality in the action taken in this behalf.
8. Under the peculiar facts and circumstances of the case and for having not following the provisions of Section 155(2) of Cr.P.C. the entire investigation done and the charge sheet filed is not sustainable in law and the same is liable to be quashed. The procedure adopted is nothing but it is an abuse of process of law.
9. In that light, the petition is allowed. The proceedings initiated in Crime No.3/2017 of Ilkal Police Station for the offences punishable under Sections 171(E) and 171(H) of IPC and also under Section 122 : 10 : R/w. Section 24(a) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966, are hereby quashed.
I.A.1/2019 is also disposed of as does not survive for consideration.
Sd/-
JUDGE gab