IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7011 OF 2015 BETWEEN:
Gopi @ Gopala, S/o. Pillerangappa Aged about 42 years Occ: Contractor, R/at 4th Cross, behind Subbaiha Complex, Hosamane Extention, Shimoga – 577 201.
(By Mr.R.B. Deshpande, Adv.) AND:
The State of Karnataka, By Kote Police Station, Shimoga - 577 201.
(By Mr. I.S. Pramod Chandra, SPP-II) *** .. Petitioner .. Respondent This Criminal Petition is filed under Section 482 Cr.P.C. praying to quash the entire Crl.Proceedings against the petitioner in Cr.No.84/2015 of Kote Police, Shivamogga, pending on the file of Prl.Civil Judge (Sr.Dn.) and CJM Court, Shivamogga, etc.
This Criminal Petition coming on for Admission, this day, the Court made the following:
O R D E R With the consent of the learned counsel for the petitioner and the learned SPP-II, the matter is taken up for final disposal.
2. Question that arises for consideration in this petition is, Whether the proceedings initiated against the petitioner under Sections 78(2) and 78(3) of the Karnataka Police Act, 1963 (hereinafter referred to as the “K.P. Act” for short) are vitiated for want of prior order of the competent Magistrate under Section 155(2) of Cr.P.C?
3. The facts of the case are that, on receipt of credible information, the Respondent Police registered a suo-motu complaint against the petitioner under Sections 78(2) and 78(3) of the K.P. Act alleging that the petitioner was found indulging in a game of chance called “Mataka Jugaari”. Based on the said information, raid was conducted in the presence of panch witnesses.
4. Heard the learned counsel for the petitioner and the learned SPP-II for Respondent –State.
5. The learned counsel for the petitioner contends that the principal offence charged against the petitioner is a non-cognizable offence. By virtue of Section 155(2) of Cr.P.C., no Police Officer is empowered to investigate such an offence without prior order of the learned Magistrate having power to try such offences. In this case, the Police Inspector who lodged the complaint has registered the case and commenced investigation without authorization by the competent Magistrate as required under section 155(2) of Cr.P.C., and therefore, the initiation of the proceedings are illegal and contrary to the provisions contained in section 155(2) of Cr.P.C. On this sole ground, these proceedings are liable to be quashed.
6. In similar set of facts and circumstances, in YAMMIGANOOR BASHA @ MEHABOOB YAMMIGANOOR BHASHA @ YALLARTHI YAMMIGANOOR BHASHA & OTHERS vs. THE STATE OF KARNATAKA Criminal Petition Nos.100418/2018 c/w. Criminal Petition Nos.100419/2018, 100420/2018, 100421/2018, 100422/2018, 100423/2018, 100424/2018, 100425/2018, 100426/2018 and 100427/2018, NABISAB s/o. SHEK IMAMSAB vs. STATE OF KARNATAKA (Crl.P.No.3365/2016 and connected matters disposed of on 07.04.2017) as well in the decisions rendered by this Court in the case of SHARATH @ SALIM vs. THE STATE OF KARNATAKA (Crl.P.No.101833/2015 and connected petitions disposed of on 18.12.2015), relying on the decision passed by this Court in the batch of petitions in Crl.P.No.100319/2014 has held that non-compliance of the mandatory requirements under Section 155(2) would render the proceedings illegal and invalid. The learned counsel had also produced the copy of the order passed by the Hon’ble Supreme Court of India in S.L.P.Nos.8567- 8580/2016 arising out of the common order passed by this Court in Crl.P.No.100319/2014. The said S.L.P.Nos.8567- 8580/2016 were dismissed by the Hon’ble Supreme Court of India, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014.
7. Undisputedly, all the above proceedings are initiated against the petitioner without prior orders of the competent Magistrate as required under section 155(2) of Cr.P.C. As a result, the registration of the FIR and the subsequent investigation are vitiated by incurable illegality and are liable to be set aside.
Accordingly, the Petition is allowed and the proceedings initiated against the petitioner in Crime No.84/2015 registered by the Kote Police Station, Shivamogga, now pending on the file of the Prl. Civil Judge (Sr.Dn.) & CJM Court, Shimoga are quashed.
Sd/- JUDGE BMV*