Karnataka High Court
Salman vs State By Hunsur Town P S on 1 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 7868 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7868 OF 2022
BETWEEN:
1. SALMAN
S/O AJAJA AHMED
AGED ABOUT 26 YEARS
R/AT SHABBIR NAGARA
A GALLI HUNSUR TOWN
MYSURU 570012
2. SHEKH ABRAHAR
S/O SHEKH MUNJARING
AGED ABOUT 30 YEARS
R/AT SHABBIR NAGARA
B CROSS, HUNSUR TOWN
MYSURU 570012
3. MOHAMMED SADIQ
S/O MOHAMMED GOUSE
AGED ABOUT 31 YEARS
R/AT NEAR PARVEEZ HOME
R/AT SHABBIR NAGARA
A GALLI HUNSUR TOWN
Digitally signed by MYSURU 570012
PADMAVATHI B K
Location: HIGH
COURT OF
KARNATAKA 4. SAMIVULLA S/O EKBAL
AGED ABOUT 47 YEARS
R/AT RAZAKA MOHALLA
HUNSUR TOWN
MYSURU 571105
5. KOUNAIAN AHAMAD KHAN
S/O THOWFIQ AHAMD
AGED ABOUT 30 YEARS
R/AT D NO. 1605
ZK COMPLEX, BAJAR ROAD
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CRL.P No. 7868 of 2022
HUNSUR TOWN
MYSURU 571105
6. ALLABHAKASH @ ALLU
S/O LATE NOORPASHA
AGED ABOUT 32 YEARS
R/AT NEAR DOUBLE TANK
SHABBIR NAGARA
HUNSUR TOWN
MYSURU - 570012
7. WASIM @ WASIM AKRAM
@ WHEELING WASIN
S/O AKRAM SHARIFE
AGED ABOUT 28 YEARS
R/AT SHABBIR NAGARA
A GALLI HUNSUR TOWN
MYSURU 570012
8. SADDAM @ SADDAM HUSAIN
@ SADDAM HUSSAIN
S/O AHAMED
AGED ABOUT 28 YEARS
PRESENTLY R/AT MIRZA CELL ZONE
BASAR ROAD, HUNSUR TOWN
MYSURU 570012
9. MOHAMMAD RAFIQ @ JOGI
@ JOGI RAFIQ
S/O GULAM DASTAGIR
AGED ABOUT 56 YEARS
R/AT D LINE, SHABBIR NAGARA
HUNSUR TOWN,
MYSURU 570012
10. SHARIKULLA
S/O BABU
AGED ABOUT 35 YEARS
R/AT SHABBIR NAGARA,
A GALLI HUNSUR TOWN,
MYSURU 570012
11. SALMAN PASHA
S/O MUNAVAR PASHA
AGED ABOUT 35 YEARS
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CRL.P No. 7868 of 2022
R/AT N S TITTU
HUNSUR TOWN,
MYSURU 570012
12. JAFAR S/O MEHABOOB
AGED ABOUT 34 YEARS
R/AT N S TITTU
HUNSUR TOWN
MYSORE -571105
13. ANWAR KHAN
R/AT MOID KHAN
AGED ABOUT 34 YEARS
R/AT N S TITTU
HUNSUR TOWN
MYSORE -571105
14. HEBSUR REHMAN SARIF
S/O ILYAS SHARIF
AGED ABOUT 46 YEARS
R./AT SHABBIR NAGARA
HUNSUR TOWN
MYSORE -570012
15. REHAMTULLA
S/O ABDUL SHRIFF
AGED ABOUT 46 YEARS
R/AT SHIVAJOTHINAGARA
VP BORE HUNSUR TOWN
MYSORE -571105
16. MAHAMMAD TABAREJ
S/O MAHAMMAD YAKUB
AGED ABOUT 48 YEARS
R/AT MUSLIM BLOCK
SHABBIR NAGARA
HUNSUR TOWN
MYSORE -570012
17. SAYAD YUNAS
S/O SAYAD YAKUB
AGED ABOUT 41 YEARS
R/AT SHABBIR NAGARA
HUNSUR TOWN
MYSORE-570012
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CRL.P No. 7868 of 2022
18. WASIM
S/O GOUHAR PASHA
AGED ABOUT 34 YEARS
R/AT SHABBIR NAGARA
HUNSUR TOWN
MYSORE -570012
19. AKMAL PAHSA
S/O IKMAL AHAMMAD
AGED ABOUT 31 YEARS
R/AT AJADNAGARA
HUNSUR TALUK
MYSORE - 571 105
20. SHRUK
S/O ABBUBAKKAR
AGED ABOUT 35 YEARS
R/AT SHABBIR NAGARA
HUNSUR TOWN
MYSORE -570012
21. MAHAMMAD JABBI
S/O NASIR AHAMAD
AGED ABOUT 36 YEARS
R/AT SHABBIR NAGARA
HUNSUR TOWN
MYSORE -570012
22. FAJALULLA
S/O ABBASH
AGED ABOUT 46 YEARS
R/AT TAPMS ROAD
HUNSUR TOWN
MYSORE -571105
23. MAHAMMAD YUSUF
S/O ISMAYIL
AGED ABOUT 46 YEARS
R/AT LALBAND BEEDI
HUSNUR TOWN
MYSORE -571105
24. HABIBULLA KHAN
S/O MAKABUL KHAN
AGED ABOUT 48 YEARS
R/AT VP BORE,
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CRL.P No. 7868 of 2022
HUNSUR TOWN
MYSORE -571105
25. SAYAD KALIM
S/O SAYAD EBRAHIM
AGED ABOUT39 YEARS
R/AT VP BORE, HUNSUR TOWN
MYSORE-571105
26. ARTIST @ JABIYULLA
S/O MAHAMMAD GOWSH
AGED ABOUT 38 YEARS
R/AT TAPCMS ROAD
HUNSUR TOWN
MYSORE -571105
27. MUJJI AHAMAD
S/O MD ISMAIL
AGED ABOUT 46 YEARS
R/AT SHIVAJOTHINAGARA
HUNSUR TOWN
MYSORE-571105.
28. FIROJ S/O KALID
AGED ABOUT 31 YEARS
R/A GANESHAGUDI BIDI
HUNSUR TOWN
MYSORE-571105.
29. THARU S/O PAIYUB
AGED ABOUT 36 YEARS
R/AT SHABBIR NAGAR
HUNSUR TOWN
MYSORE-570012
30. AKBAR
S/O MUNEER A M
AGED ABOUT 39 YEARS
R/AT VP BORE
HUNSUR TOWN
MYSORE-571105
31. IMRAM @ KAJA
S/O BABU D
AGED ABOUT 34 YEARS
R/AT TIPPU NAGARA
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CRL.P No. 7868 of 2022
VP BORE, HUNSUR TOWN
MYSORE-571602
32. AKRAM
S/O ABDULLA
AGED ABOUT 41 YEARS
R/AT TIPPU NAGARA
VP BORE, HUNSUR TOWN
MYSORE-571602
33. AMAN S/O MAKBUL
AGED ABOUT 37 YEARS
R/AT HUNSUR TOWN
MYSORE-571105
34. AMJAD
S/O JALIL KHAN
AGED ABOUT 38 YEARS
R/AT TIPPU NAGARA
VP BORE, HUNSUR TOWN
MYSORE-571602
35. MUBARAK
S/O MAKBUL
AGED ABOUT 44 YEARS
R/AT NEAR LILA THIYETER
HUNSUR TOWN
MYSORE-571105
36. THOUSIF S/O BABU
AGED ABOUT 34 YEARS
HUNSUR TOWN
MYSORE-571105
37. MUBARAK
S/O DOULAT
AGED ABOUT 36 YEARS
R/AT HUNSUR TOWN
MYSORE-571105
38. AFSER
S/O LATE SARDAR AHAMMAD
AGED ABOUT 33 YEARS
R/AT KHAJI MOHALA
HUNSUR TOWN
MYSORE-571105
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CRL.P No. 7868 of 2022
39. NASIR @ TONDA
S/O RAFIK
AGED ABOUT 38 YEARS
R/AT HUNSUR TOWN
MYSORE-571105
40. JABEER
S/O JAKRIYA
AGED 36 YEARS
R/AT SHABBIR NAGAR
HUNSUR TOWN
MYSORE 570012
41. SADDAM
S/O FARUK
AGED 34 YEARS
R/A AJADNAGARA
HUNSUR TOWN
MYSORE 571105
42. JUBER
S/OJAMIR AHAMMAD
AGED 32 YEARS
R/AT TAPMS ROAD
HUNSUR TOWN
MYSORE 571105
43. RIHAN
S/O KADIR BAIG
AGED ABOUT 32 YEARS
R/AT HUNSUR TOWN
MYSORE 571105
44. ABDUL KARIM
S/O ABDUL REHAMAN
AGED 32 YEARS
R/AT RAJAK MOHALLA
HUNSUR TOWN
MYSORE 571105
45. ILIASZ AHAMED
S/O ABDUL RAHIM
AGED ABOUT 34 YEARS
R/AT RAJAK MOHALLA
HUNSUR TOWN
MYSORE 571105
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CRL.P No. 7868 of 2022
46. AMAN SARIF
S/O ALTAHA SARIF
AGED ABOUT 29 YEARS
R/AT VIJAYANAGARA
HUNSUR TOWN
MYSORE 571105
47. GAWSH KHAN @ MUNNA
S/O SABUBULLA KHAN
AGED ABOUT 42 YEARS
R/AT IK ROAD, HUNSUR TOWN
MYSORE - 571 105
48. IRFAN S/O ILIYAS AHAMAD
AGED ABOUT 26 YEARS
R/AT NES COLONY
HUNSUR TOWN
MYSORE - 571 105
49. ABRAR @ BIRIYANI BABU
S/O ABDUL BASHEER
AGED ABOUT 45 YEARS
R/AT LALBAND BEEDI
HUNSUR TOWN
MYSORE - 571 105
...PETITIONERS
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND:
1. STATE BY HUNSUR TOWN P S
REP BY PUBLIC PROSECUTOR
OFFICE AT ADVOCATE GENERAL OFFICE
HIGH COURT COMPLEX
OPP. VIDHANA SOUDHA
BENGALURU 560001
2. KRISHNAMURTHI H R
S/O RAMACHANDRA
R/AT NO.401/6, MANJUNATHA BADAVANE
HUNSUR TOWN
MYSURU 571105
...RESPONDENTS
(SMT.K.P.YASHODHA, HCGP FOR R1)
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CRL.P No. 7868 of 2022
THIS CRL.P IS FILED U/S.482 CR.P.C TO SET ASIDE THE
COGNIZANCE ORDER DATED 21.12.2018 PRESENT AT ANNEXURE-D
IN C.C.NO.1100/2018 U/S 144, 147, 148, 149, 448, 429, 307, 188
R/W 149 OF IPC PASS BY THE HONBLE PRL. SENIOR CIVIL JUDGE
AND JMFC, HUNSUR AGAINST THE PETITIONERS AND
CONSEQUENTLY QUASH THE CHARGE SHEET DATED 29.10.2016
FILED BY THE RESPONDENT HUNSUR TOWN POLICE STATION, FOR
THE OFFENCE P/U/S 143, 144, 147, 148, 149, 188, 429, 448 AND
307 OF IPC PRESENT AT ANNEXURE-C ARISING OUT OF CRIME
NO.283/2015 PENDING ON THE FILES OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC, HUNSUR WHEREIN THE PETITIONERS ARE
ARRIVED AS ACCUSED NO.1 TO 21, 23 TO 46 AND 48 TO 51
RESPECTIVELY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question proceedings in C.C.No.1100/2018 for the offences punishable under Sections 144, 147, 148, 149, 448, 429, 307, 188 r/w Section 149 of IPC.
2. Heard the learned counsel Sri.Mohammed Tahir for the petitioners and the learned HCGP Smt.K.P.Yashodha for respondent No.1.
3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by this Court in Crl.P.No.5415/2022, disposed of on 25.07.2022 wherein, this Court held as follows:
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"3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.2896/2022, disposed of on 20.06.2022, wherein this Court has held as follows:
2. Learned counsel appearing for the petitioners submits that the issue in this petition stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, which submission is accepted by the learned HCGP appearing for the respondent.
3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Co- ordinate Bench of this Court. The Co-ordinate Bench has held as follows:
4. The case of the prosecution in brief is as follows:
The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.
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5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.
6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.
7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:
"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, 1860 (45 of 1860); or
(ii) of any abetment of, or attempt to commit, such offence; or
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(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;"
8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.
9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.
10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v.
Hemareddy, the Hon'ble Supreme Court held as follows:
"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the
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same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
(Emphasis supplied)
11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.
The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."
4. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii.Proceedings in C.C.No.388/2014 on the file of the II Additional Civil Judge and J.M.F.C., Nanjangud, Mysore, stand quashed."
4. The learned HCGP would not dispute the aforesaid order and the fact that it covers the case at hand on all its fours."
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CRL.P No. 7868 of 20224. Learned HCGP, though would refute the submission of the learned counsel for the petitioners, is not in a position to dispute the position of law as is laid down by this Court (supra).
5. Therefore, the petition deserves to be succeed on the afore-quoted reasons rendered by this Court (supra).
6. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. Proceedings in C.C.No.1100/2018 on the file of the Principal Senior Civil Judge and JMFC, Hunsur, stand quashed.
In view of the disposal of the main petition, I.A.No.1/2022 also stands disposed.
Sd/-
JUDGE VM List No.: 1 Sl No.: 97