Karnataka High Court
Basha @ Mehaboob Basha vs The State Of Karnataka on 22 September, 2017
Author: R.B Budihal
Bench: R.B Budihal.
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.102117/2017,
CONNECTED WITH
102118/2017, 102119/2017, 102120/2017,
102121/2017, 102122/2017, 102123/2017
AND 102143/2017.
IN CRIMINAL PETITION NO.102117/2017.
BETWEEN:
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA,
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA,
PSI KURUGOD POLICE STATION,
BALLARI, DIST:BELLARY,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
:2:
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.180/2016 (CRIME
NO.7/2016) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
IN CRIMINAL PETITION NO.102118/2017
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA,
S/O SHEAKSHAVALI,
AGED ABOUT 39 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI.
.... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI , DIST:BELLARY
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.559/2015 (CRIME
NO.90/2015) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
:3:
AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICACT, 1963.
IN CRIMINAL PETITION NO.102119/2017
BETWEEN
BASHA S/O SHEAKSHAVALI
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI, DIST:BELLARY,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.390/2016 (CRIME
NO.76/2016) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
:4:
IN CRIMINAL PETITION NO.102120/2017
BETWEEN
BASHA @ MEHABOOB BASHA
@ ELLARTHI BASHA
S/O SHEAKSHAVALI
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI, DIST:BELLARY
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.408/2016 (CRIME NO.
107/2016) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC, BALLARI, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
:5:
IN CRIMINAL PETITION NO.102121/2017
BETWEEN
BASHA S/O SHEAKSHAVALI
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI, DIST:BELLARY
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.377/2016 (CRIME NO.
116/2016) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
AND JMFC, BALLARI, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
IN CRIMINAL PETITION NO.102122/2017
BETWEEN
BASHA @ MEHABOOB BASHA
@ YALLARTHI BASHA
S/O SHEAKSHAVALI,
AGED ABOUT 42 YEARS,
:6:
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI, DIST:BELLARY
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHRWAD
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.1032/2015 (CRIME NO.
128/2015) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
(JR.DN.) AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
IN CRIMINAL PETITION NO.102123/2017
BETWEEN
BASHA EMMIGANURU BASHA
S/O SHEKSHAVALI,
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:EMMIGANURU, BALLARI.
... PETITIONER
(BY SRI.M.L.VANTI, ADVOCATE)
:7:
AND
THE STATE OF KARNATAKA
PSI KURUGOD POLICE STATION
BALLARI, DIST:BELLARY
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH, AT DHRWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE PROCEEDINGS AGAINST
PETITIONER INITIATED IN C.C.NO.126/2016 (CRIME
NO.196/2015) PENDING ON THE FILE OF II ADDL. CIVIL JUDGE
(JR.DN.) AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 78(3) OF KARNATAKA POLICE ACT, 1963.
IN CRIMINAL PETITION NO.102143/2017
BETWEEN
1. YEMMIGANUR BASHA
AGED ABOUT 42 YEARS,
OCC:BUSINESS,
R/O:HAVAMBAVI, BALLARI.
2. SHEKSHAVALI B., S/O. ALAM BASHA
AGED ABOUT 29 YEARS,
OCC:LABOURER,
R/O:DESHANUR VILLAGE
TQ:SHIRUGUPPA, BALLARI.
3. GOUSIYA BEE W/O. YEMMIGANUR BASHA
AGED ABOUT 40 YEARS,
OCC:BUSINESS,
R/O:HAVAMBAVI, BALLARI.
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4. RAVI S/O. TIMMANGOUDA
AGED ABOUT 26 YEARS,
OCC:BUSINESS
R/O: YEMMIGANUR, BALLARI.
... PETITIONERS
(BY SRI.M.L.VANTI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
PSI RURAL POLICE STATION
BALLARI, DIST:BELLARY,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE COMPLAINT AND FIR IN
BALLARI RURAL POLICE STATION CRIME NO.277/2017
PENDING ON THE FILE OF 3RD ADDL. CIVIL JUDGE (JNR.DVN)
AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 78(3) OF KARNATAKA POLICE ACT 1963 AND
SECTION 66-D OF INFORMATION TECHNOLOGY ACT, 2008.
THESE PETITIONS ARE COMING ON FOR ADMISSION,
THIS DAY, THE COURT, MADE THE FOLLOWING:
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COMMON ORDER
Since common questions of law and facts are involved in the above petitions and in order to avoid the repetition of discussion of the facts and law, all the petitions are taken together and disposed off by this common order.
2. The details of the crime number, offences and criminal cases registered, if any, in these petitions are as under :
Sl Criminal Crime No . Offences CC.N umber No Petitio n No . and Po lice (Sectio- and the Station ns) as in Court.
FIR
1 102117/2017 7/2016, 78( 3) o f 180/2016,
Kurugo d KP Act. II Addl. Civil
Po lice Judge and
Station JMFC,Ballari
2 102118/2017 90/ 2015, 78( 3) o f 559/2015,
Kurugo d KP Act. II Addl.Civil
Po lice Judge and
Station JMFC,Ballari
3 102119/2017 76/ 2016, 78( 3) o f 390/2016,
Kurugo d KP Act. II Addl.Civil
Po lice Judge and
Station JMFC,Ballari
4 102120/2017 107/2016, 78( 3) o f 408/2016,
Kurugo d KP Act. II Addl.Civil
Po lice Judge and
Station JMFC,Ballari
: 10 :
5 102121/2017 116/2016, 78( 3) o f 377/2016,
Kurugo d KP Act. II Addl.Civil
Po lice Judge and
Station JMFC,Ballari
6 102122/2017 128/2015, 78( 3) o f 1032/ 2015,
Kurugo d KP Act II Addl.Civil
Po lice and Judge and
Station Section JMFC,Ballari
420 o f
IPC
7 102123/2017 196/2015, 78( 3) o f 126/2016
Kurugo d KP Act II Addl.Civil
Po lice and Judge and
Station Section JMFC,Ballari
420 o f
IPC
8 102143/2017 277/2017, 78( 3) o f Charge sheet
Rural KP Act not yet file d,
Po lice and III Addl.Civil
Station, Section Judge (Jr.Dv)
Ballari 66-D of &
Informati JMFC,Ballari
on
Techno-
lo gy Act
As stated above, in all the eight cases, First
Information Reports came to be registered for the offence under Section 78(3) of the Karnataka Police Act, and in two of the above cases i.e., in Crl. P. Nos.102122 and 102123 of 2017, FIRs have been registered also for the offence under Section 420 of IPC. In the cases at Sl.No.1 to 7 mentioned : 11 : in the chart, investigation has already been completed and charge sheet has also been filed for the offence under Section 78(3) of Karnataka Police Act, while dropping the offence under Section 420 of IPC, which was included in the cases in two Criminal Petitions referred above. In Criminal Petition No.102143/2017 FIR is registered even for the offence under Section 66(D) of the Information Technology Act, 2008, and the matter is still under investigation.
3. Since the factual averments in respect of all the above cases are substantially one and the same, I refer to the factual aspects of the case pertaining to the first matter i.e., Crl.P.No.102117/2017. In the complaint the allegations are that, on 06.01.2016, PSI Kuragod Police Station, at about 7.00 p.m. received a credible information that in a public place at Pattanaseragu village, in front of Government : 12 : School, some persons were indulging in playing the Mataka. Immediately after obtaining such information, the complainant secured two pancha- witnesses and other officers and, in a Government vehicle, they visited the spot, saw some persons and also saw that one among them was inviting public saying that, for one rupee he will pay 80 rupees. Immediately, they conducted raid and intercepted accused No.1, and raid team recovered from accused No.1 one Mataka Chit, Ball pen, one mobile phone and seized an amount of Rs.4,000/- from accused No.1 and drew panchanama. On interrogation, accused No.1 revealed the name of the petitioner and that he (accused No.1) used to give amount and Mataka Chit to the petitioner (accused No.2). The complainant, after conducting seizure panchanam, registered a case in Crime No.7/2016 against the petitioner and another. The Investigation Officer after completing the investigation filed the charge-sheet for the offence : 13 : punishable under Section 78(3) of Karnataka Police Act, 1963. The cognizance has been taken for the said offence and criminal case is registered.
4. Being aggrieved by the registration of the criminal cases and taking cognizance of the offence and issuance of the process as against them, the petitioners in the respective petitions have approached this Court by filing the above petitions.
5. Heard the arguments of the learned counsel for the petitioners in respect of all the above eight petitions, so also the arguments of the learned HCGP for the respondent-State.
6. Learned counsel for the petitioners made submission that the offence under Section 78(3) of Karnataka Police Act is a non-cognizable offence and therefore, the mandatory requirements of Section 155(2) of Cr.P.C have to be complied with, : 14 : but in the above cases there is no compliance of the said mandatory provisions and as such, the entire proceedings are vitiated. The learned counsel for the petitioners also made submission that, looking to the prosecution material itself, there is no such compliance by obtaining order of the concerned Magistrate Court for proceeding with the further investigation in the matter.
7. Learned counsel for the petitioners also made submission that, in respect of the two matters, though the FIR was registered also for the alleged offence under Section 420 of IPC, while submitting the charge sheet the said offence was dropped, and the charge sheet was submitted only for the offence punishable under Section 78(3) of Karnataka Police Act. Alternatively he made submission that, even if it is taken that a cognizable offence under Section 420 of IPC is committed along with Section 78(3) of Karnataka : 15 : Police Act, then in that case also the police ought to have followed the mandatory requirements of Section 154(1) of Cr.P.C i.e., the police were required to reduce the information received by them in to writing and registered a case, which is also not done in this case. Therefore learned counsel submitted that the mandate, as observed by the Hon'ble Apex Court in the Lalita Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1, with regard to compliance of mandatory provisions in a case of cognizable offence, has not been followed in this case. Learned counsel submitted that looking to the FIR registered in two of the above cases, where the offence under Section 420 of IPC is also included, but dropping the said offence while submitting the charge sheet, they prima-facie go to show that, the offence under Section 420 of IPC is included with an intention to avoid the complication in obtaining the prior permission : 16 : from the JMFC Court to proceed with the further investigation in the matter.
8. Learned counsel also made the submission that, looking to the averments made in the complaints in respect of all the above petitions, they go to show that, after receiving the information the complainant-Police Officer, along with staff and panch-witnesses, proceeded to the spot, caught hold some of the accused persons, seized the amount, mataka chits, ball pen and other materials, and then he came back to the Police Station and registered the FIR, and if this aspect is taken into consideration, by the time the Police Officer came back to the Police Station, virtually more than half of the investigation was already completed. Therefore on this ground also he made submission that, the proceedings are not at all maintainable and the entire proceedings are vitiated. He also submitted that, in a batch of : 17 : petitions, under similar set of circumstances, this Court has already passed the order quashing the proceedings challenged therein. Learned counsel relied upon the order of this Court dated 07.04.2017 passed in the Criminal Petition No.3365/2016 connected with the other batch of the petitions. Hence he made submission that, in view of these materials placed on record the initiation of the criminal proceedings is nothing but an abuse of process of the Court and no prima-facie case has been made out by the prosecution against any of the petitioner in the above petitions. Hence he submitted to allow all the eight petitions and to quash the proceedings.
9. Per Contra, learned HCGP made the submission that, looking to Section 88 of the Karnataka Police Act, the police are authorized to arrest the accused persons and they are also authorized to conduct the search without obtaining : 18 : the warrant, and this itself clearly goes to show that the offence under Section 78(3) of Karnataka Police Act, is a cognizable offence. Hence he made the submission that when the offence is a cognizable offence, the question of obtaining prior permission from the concerned Magistrate Court, as per the requirement under Section 155(2) of Cr.P.C, does not arise at all. Hence he submitted that the proceedings conducted are in accordance with law and there is no illegality committed by the police authorities.
10. Learned HCGP further made the submission that, in two of the above cases, apart from Section 78(3) of Karnataka Police Act, the offence under Section 420 of IPC is also there and Section 420 of IPC being a cognizable offence and in respect of at least those two case obtaining prior permission is not at all required. It is also his submission that, looking to the prosecution : 19 : material when the police, along with the pancha- witnesses proceeded to the spot, some of the petitioners were caught red handed when they were playing the Mataka in the public place and were cheating the public saying that they would pay Rs.80/- for one rupee. The police seized the Mataka amount, Mataka chits, ball pen and other materials at the spot and after arresting the accused persons, they registered the FIR in the case. Hence the learned HCGP made the submission that, looking to these materials placed on record they clearly go to show there is a prima facie case about the involvement of the petitioners in committing the alleged offence. Hence, the learned HCGP submitted that the proceedings challenged in the above petitions cannot be quashed by invoking Section 482 of Cr.P.C, and prayed to reject the above petitions.
: 20 :
11. I have perused the grounds urged in the respective petitions, FIR, complaint and also the other materials produced by the petitioners along with the petitions.
12. As rightly submitted, in all the eight cases, FIR is registered for the offence alleged under Section 78(3) of the Karnataka Police Act, and in two of the above eight cases, which are referred above, the offence under Section 420 of IPC is also included. Even in respect of those two cases, though the FIR was initially registered for the offence under Section 420 of IPC, while submitting the charge sheet, the offence under Section 420 of IPC was dropped and charge sheet was submitted only for the offence under Section 78(3) of the Karnataka Police Act.
13. Regarding the contentions of both sides i.e, with regard to the nature of offence under Section 78(3) of the Karnataka Police Act, i.e., whether it is a cognizable : 21 : offence or non-cognizable offence, as contended by both the sides, I would refer to a decision of a learned Single Judge of this Court, who has considered this aspect in detail and, by referring to the First Schedule Part II of the Code of Criminal Procedure with reference to the offences under other enactments, ultimately the learned single Judge held that, since the punishment imposed for the offence under Section 78(3) of Karnataka Police Act, is less than 3 years, it is a non-cognizable offence. During the course of hearing the matter, on a query as to whether any appeal is preferred against the said order or whether any stay has been granted staying the said order of the learned Single Judge, it was submitted by both the sides that as of now, no appeal has been preferred or that no such order has been granted by the Court. Therefore the contention of the learned HCGP that, in view of Section 88 of the Karnataka Police Act, the offence under Section 78(3) of the Karnataka Police Act, is to be considered as a cognizable offence cannot be accepted at all. Looking to the other contentions by both sides the : 22 : materials goes to show that, after receiving the credible information the police proceeded to the spot along with staff and panch-witnesses and conducted the raid, arrested the some of the accused persons, recovered the amount, mataka chits, ball pen and other materials at the spot, then they came back to the police station along with seized materials and the accused persons handed over to the 'Station House Officer'. Looking to these aspects of the matter, learned counsel for the petitioners is justified in making the submission that by the time police came back to the Police Station and registered the FIR, more than half of the investigation is completed in the case. Apart from that, even if the contention of the learned HCGP that one of the alleged offences is a cognizable offence and that obtaining prior permission of the Magistrate as per Section 155(2) of Cr.P.C. is not necessary, is accepted, in view of Section 154(1) of Cr.P.C., and as observed by the Hon'ble Apex Court in the Lalita Kumari case also, i.e., the police should have immediately reduced the information into the writing. But, even that is not followed in any of the above : 23 : eight cases. The prosecution has not produced any material to show that the information received by the police was immediately reduced into writing in the station house diary, and it is also seen that FIRs came to be registered after the completion of the spot mahazar, seizure, arrest of the accused, etc., When once the petitioners have made out a case that, the alleged offences are non-cognizable offences and the provision of Section 155(2) of Cr.P.C. with regard to obtaining prior permission of the concerned Magistrate Court before proceeding with the further investigation in the matter, is applicable to their cases, and when it is seen from the prosecution material that in none of the above cases prior permission of the Magistrate, to proceed with the case, was obtained, I am of the opinion that the counsel for the petitioners is also justified in making his submission that, all other proceedings taken in furtherance of the registration of the FIR are vitiated in the cases.
: 24 :
14. I have also perused the order, dated 07.04.2017, passed by this Court in the batch of the petitions in Criminal Petition No.3365/2016 and connected matters, wherein this Court has discussed all the contentions of the parties in detail and ultimately allowed the said petitions and quashed the proceedings initiated in the respective petitions.
15. In view of these materials placed on record, I am of the opinion that, the petitioners in all the above eight petitions have made out a case to allow the petitions. Accordingly, all the petitions are allowed. The criminal proceedings challenged in the above petitions are hereby quashed.
Sd/-
JUDGE CKK