IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7788/2018 BETWEEN:
1. ABDUL AZEEZ S/O LATE M.H. IDINABBA AGED ABOUT 41 YEARS R/AT NNF GREEN VIEW KENCHANAKERE POST KILPADY VILLAGE MANGALURU TALUK D.K. DISTRICT-574151.
2. MOHAMMED IQBAL S/O SHAIKABBA AGED ABOUT 42 YEARS R/AT NO.2-144 ANGARAGUDDE, SHIMANTHUR KENCHANAKERE, MANGALURU D.K. DISTRICT-574154.
3. NISAR AHMED S/O LATE SYED AGED ABOUT 40 YEARS R/AT ATTIKARI BETTU VILLAGE ANGARGUDDE HOUSE KENCHANAKERE POST KILPADY VILLAGE MANGALURU TALUK D.K. DISTRICT-574151 4. MUSTAFA S/O M SYED AGED ABOUT 40 YEARS R/AT NO.2-194, BADARIYA MANZIL ANGARGUDDE HOUSE KENCHANAKERE POST MANGALURU TALUK D.K. DISTRICT-574151.
5. HAMEED S/O M. SYED AGED ABOUT 49 YEARS R/AT NO.2-194, BADARIYA MANZIL ANGARGUDDE HOUSE KENCHANAKERE POST MANGALURU TALUK D.K. DISTRICT-574151.
6. AHMED BAVA S/O JAINABI AGED ABOUT 36 YEARS R/AT 2-159, ANGARGUDDE HOUSE KENCHANAKERE POST MANGALURU TALUK D.K. DISTRICT-574151.
... PETITIONERS (BY SRI.B. LETHIF, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY MULKY POLICE STATION D.K. DISTRICT REP. BY THE SPP HIGH COURT BUILDING BANGALORE-560 001.
2. ABUBAKKAR S/O PUTTABBA BEARY AGED ABOUT 49 YEARS R/AT KARIYANGALA HOUSE ANGARGUDDE, SHAIMA MANZIL KENCHANAKERE POST SHIMAMTHOOR VILLAGE MANGALURU TALUK D.K. DISTRICT-574151. ... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP FOR R-1;
NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH V.O. DATED 25.3.2019) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN C.C.NO.184/2018 (CR.NO.135/2017) ON THE FILE OF CIVIL JUDGE AND JMFC, MOODABIDRI, D.K, DISTRICT OF MULKI POLICE STATION FOR THE OFFENCES P/U/S 143, 147, 447, 504, 506 AND 427 R/W 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who are arraigned as accused Nos.1 to 6 in C.C.No.184/2018 registered by the Mulki Police Station for the offences punishable under Sections 143, 147, 447, 504, 506 and 427 r/w Section 149 IPC pending on the file of Civil Judge and J.M.F.C, Moodabid, D.K. District are before this Court for quashing of said proceedings.
2. A complaint came to be lodged by respondent No.2 on 14.10.2017 alleging that on 13.10.2017 at about 6.15 p.m. accused and his followers came near the complainant’s house and questioned him as to whether he is ready to face them by filing a complaint against them for the offence punishable under Section 307 IPC and abused him in foul and filthy language and also threatened him that they would stab him in his abdomen and take out liver out of his stomach. This incident, according to the complainant occurred at about 6.30 p.m. during the evening prayer. It is further alleged that accused persons belong to PFI-Popular Front of India organization and they are in the habit of threatening public at large. Hence, he sought for suitable action being taken against accused persons.
3. Said complaint came to be registered against petitioners for the offences punishable under Sections 504 and 506 r/w Section 34 of IPC and after completion of investigation, charge sheet came to be filed for the offences punishable under Sections 447, 504, 506, 427 r/w Section 149 IPC. Hence, petitioners-accused are before this Court for quashing of said proceedings.
4. I have heard the arguments of Sri. B. Lethif, learned Advocate appearing for petitioners and Sri. S. Rachaiah learned HCGP appearing for the State. Perused the records.
5. It is the contention of Sri. B. Lethif, learned Advocate appearing for petitioners that jurisdictional Police have registered FIR in Crime No.135/2017 for the offences punishable under Sections 504, 506 r/w Section 34 IPC which undisputedly are non-cognizable offences and Police ought to have taken permission from the jurisdictional Magistrate as required under Section 155(2) of Cr.P.C. In the absence thereof, investigation could not have been proceeded or charge sheet could not have been filed. Hence, entire proceedings is vitiated for violation of Section 155 (2) of Cr.P.C. On this ground, he prays for allowing the petition and for quashing of the proceedings filed against petitioners.
6. Per contra, Sri. S. Rachaiah, learned HCGP appearing for State would support the case of prosecution by vehemently relying upon the endorsement ‘Permitted’ and contending permission has been granted by the jurisdictional Magistrate on 14.10.2017. Hence, he prays for rejection of the petition.
7. Perusal of the records would disclose that on the basis of the complaint lodged by the defacto- complainant –Sri.Abubakkar, FIR in Crime No.135/2017 has been registered against petitioners for the offences punishable under Sections 504 and 506 r/w Section 34 of IPC which undisputedly are non- cognizable offences. In respect of a non-cognizable offences, Police would not be empowered to investigate without the order of the Magistrate who is empowered to try such cases or to commit such cases for trial as prescribed under sub-Section (2) of Section 155 of Cr.P.C.
8. In the instant case, Sri. S. Rachaiah, learned HCGP appearing for the State has placed on record the purported permission dated 14.10.2017 which is said to have been granted by jurisdictional Magistrate namely, Civil Judge and JMFC, Moodabidri, D.K. District. Original records which have been made available by prosecution is perused by this Court and it would disclose that in the application forwarded by the jurisdictional Police to the jurisdictional Magistrate an endorsement has been made by the learned Magistrate to the effect “Permitted”, Sd/- dated 14.10.2017. This Court has repeatedly held that such permissions would not amount to granting permission as envisaged under sub-Section (2) of Section 155 Cr.P.C., inasmuch as, there would be necessity of judicious application of mind by the Magistrate to grant such permission. In the absence thereof, permission alleged to have been granted by Magistrate cannot be held or construed as permission having been granted by the jurisdictional Magistrate under Section 155(2) of Cr.P.C. To put it differently, at the time of according permission, learned Magistrate would be required to examine the material that would be placed before him by the jurisdictional Police and same has to be evaluated on application of judicious mind to accord permission. No doubt, a lengthy order is not required to be passed by the learned Magistrate while granting permission under Section 155 (2) Cr.P.C. However, it is trite law that application of judicious mind for grant of such permission has to be discerned from the order itself. Lack of application of mind would be the ground on which infraction of Section 155(2) Cr.P.C can be taken note of.
9. In the instant case, as already noticed hereinabove, there is no material placed by the learned HCGP to establish that such judicious application of mind can be found from by the order of jurisdictional Magistrate or in other words, jurisdictional Police had placed all such material for consideration by the jurisdictional Magistrate to accord permission under Section 155(2) Cr.P.C which had been looked into by the learned Magistrate. In the absence thereof, any investigation undertaken by the jurisdictional Investigating officer, would fall short of mandatory requirement of sub-Section (2) of Section 155 of Cr.P.C.. Thereby, further proceedings before the jurisdictional Court would stand vitiated. However, on technical grounds, the accused cannot be allowed to contend that prosecution should not be permitted to proceed in accordance with law.
For the above stated reasons, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioners in C.C.No.184/2018 (arising out of Crime No.135/2017) registered by Mulki Police Station pending on the file of Civil Judge and JMFC, Moodabidri, D.K. District registered for the offences 143, 147, 447, 504, 506 and 427 r/w Section 149 IPC stands quashed.
(3) Petitioners are acquitted of the said offences.
(4) However, it is made clear that prosecution would be at liberty to proceed against the petitioners – accused persons in accordance with law.
(5) It is also made clear that no opinion is expressed on the merits of the prosecution case.
SD/- JUDGE RU