IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5867/2015 BETWEEN:
Mr. C. Mahesh Kumar S/o. late Shri. Chikkaiah Life Trustee & Financial Administrator M/s. Tadikela Subbaiah Trust (R)-Shimoga Aged about 50 years Resident of “Avvana Mane”
Near Balamuri Ganapathi Temple Gandhinagar, Badhravathi Shivamogga District – 577 202. … Petitioner (By Sri. M.S. Shyam Sundar, Advocate) AND:
1. The State of Karnataka By Jayanagar Police Station Shivamogga Town Shivamogga District-577 202.
2. Shri Adhishesha S S/o. Shri Subbaiah Aged about 41 years Subadra Nilaya, 100 feet Road Gandhinagar Shivamogga – 577 202. …Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R1 Sri. S.B. Totad, Advocate for R2 – Absent) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the proceedings at Annexure-A complaint and Annexure-B FIR in Cr. No.93/2015 of Jayanagar Police Station, Shivamogga Town, Shivamogga Dist. The record of which is acceded and pending before the Addl. Civil Judge (Jr.Dn) and J.M.F.C-III, Shimoga and etc., This criminal petition coming on for Admission this day, the court made the following:
O R D E R Heard learned counsel for the petitioner and learned Additional SPP appearing for respondent No.1.
2. The principal contention urged by learned counsel for the petitioner is that the impugned FIR is registered in respect of the offence punishable under Section 506 of IPC which is a non cognizable offence. No prior permission or authorization has been obtained by the Investigating Agency under Section 155(2) of Cr.P.C and therefore, the registration of the case and consequent investigation is bad in law.
3. Learned Additional Special Public Prosecutor however has drawn the attention of the Court to the order passed by the learned Magistrate at Annexure-C. Wherein the learned Magistrate has subscribed his initial under the endorsement as ‘permitted’ on the requisition submitted by the I.O.
4. Considering the purport of Section 155 of Cr.P.C. and the purpose and object of prescribing such a pre-requisite in Section 155 (2) of Cr.P.C., this Court in the case of PRAVEEN BASAVANNEPPA SHIVALLI VS. STATE OF KARNATAKA AND OTHERS REPORTED IN 2017(1) AKR 461 has observed as under:
“15. In the present case, 2nd respondent having acted contrary to sub section (1) of Section 155 Cr.P.C. and the learned Magistrate having not passed ‘an order’, instead, having made an entry ‘permitted’, being not ‘an order’ in the eye of law and in view of the prohibition contained in sub-section (2) of S.155 Cr.P.C., the investigation; made and the consequential charge-sheet filed for the offences under Ss.504, 506 and 323 of IPC and the taking of cognizance of those offences and the issue of non-bailable warrant in the first instance itself for proceeding further with the case against the accused are absolutely illegal. It is obvious that the police and the Magistrate have not bothered to look into S.155 Cr.P.C. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent.”
5. Needless to state that such an endorsement does not satisfy the requirements of Section 155(2) of Cr.P.C. as it is not an “order” as required under Section 155(2) of Cr.P.C. Therefore, the petition deserves to be allowed.
Consequently, petition is allowed. The FIR in Crime No.93/2015 and all consequent proceedings taken thereon are quashed. Investigating officer is at liberty to proceed with the matter after complying with the requirements of Section 155(2) of Cr.P.C.
Sd/- JUDGE PYR