IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2437/2019 BETWEEN:
1. IMRAN AHMAD S/O HAJARATH ALI AGED ABOUT 22 YEARS R/AT KEREBILACHI KYAMP (SWARGAVATHI PATTANA) VILLAGE, CHANNAGIRI TQ, DAVANAGERE-577530.
2. SHAFI S/O KHALIM AGED ABOUT 30 YEARS R/AT KEREBILACHI VILLAGE CHANNAGIRI TQ, DAVANAGERE-577530.
3. JAMAL S/O IMAM SAB AGED ABOUT 48 YEARS MALEBENNUR HARIHARA TALUK DAVANAGERE-577530 ... PETITIONERS (BY SRI. SHIVANANDA D.S, ADVOCATE) AND:
THE STATE OF KARNATAKA THROUGH BASAVAPATTANA POLICE STATION CHANNAGIRI TALUK DAVANAGERE DISTRICT REPT. BY STATE PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.
... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE IMPUGNED FIR DATED 05.09.2018 REGISTERED BY THE RESPONDENT IN CR.NO.126/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.)AND CJM, CHANNAGIRI, DAVANAGERE DISTRICT FOR THE OFFENCE P/U/S 78(3) OF THE KARNATAKA POLICE ACT, AGAINST THE PETITIONERS AND ALLOW THE ABOVE CRIMINAL PETITION.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are before this Court for quashing of FIR registered in Crime No.126/2018, by Basavapatna police station, Davanagere District for the offences punishable under Section 78(3) of the Karnataka Police Act which is pending on the file of Principal Civil Judge (Sr.Dn.) & CJM Court, Channagiri, Davanagere District.
2. The gist of the prosecution case is as follows:-
The Sub Inspector of Police had received a credible information on 05.09.2018 at about 04.30 p.m, that some persons were playing matka near Kerebilachi Camp (Swargavathi Pattana) Bus stand, Channagiri Taluk, Davanagere District, police have raided said place along with staff on the same day, that is, on 05.09.2018 at about 5.00 p.m., and found that petitioners were playing Matka and as such seized cash of Rs.8,050/- and also a piece of paper where the matka numbers were written and recovered another sum of Rs.3,950/- (total sum of Rs.12,000/-) and apprehended the petitioners.
3. Heard Sri. Shivananda D.S, learned Advocate appearing for petitioners and Sri. S. Rachaiah, learned HCGP appearing for respondent. Perused the records.
4. Learned Advocate appearing for petitioner contends that offences alleged against petitioners are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C, same has been registered and investigation has been taken up and as such proceedings cannot be continued as it is illegal and contrary to mandate of Section 155(2) of Cr.P.C. Hence, he prays for quashing of said proceedings.
5. However, learned High Court Government Pleader appearing for the respondent-State would defend the initiation of prosecution against petitioners and prays for dismissal of the petition contending permission from Magistrate had been obtained.
6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would not detain the Court for long to accept the submissions of learned counsel appearing for the petitioners inasmuch as material on record does not disclose that permission as prescribed under Sub- Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent before registering the FIR in question against the petitioners for the offences punishable under Sections 78(3) of the Karnataka Police Act which undisputedly is a non-cognizable offence.
7. Coordinate Bench after adverting to earlier decisions has held in W.P.No.42073-42075/2018 (GM-RES) (THE PADUBIDRI MEMBERS LOUNGE AND OTHERS V/S DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE AND OTHERS) disposed of on 03.10.2018 that endorsement made by the learned Magistrate stating “Permitting”, does not satisfy the requirement of Section 155(2) Cr.P.C. In the light of aforestated decision and granting ‘Permission’ would result in several consequences flowing there from and as such judicious application of mind would be essential criteria before according such permission. In other words, subjective satisfaction and objective assessment of the material that would be placed by the Police is the hall mark for granting permission, which is required under Section 155(2) Cr.P.C as otherwise representation of FIR and investigation taken up would be illegal. In the instant case, such an exercise has not been undertaken and prosecution has claimed such permission was obtained at 5.00 p.m, on same day i.e., on 05.09.2018. However, same is not placed on record. Even otherwise granting of permission with an endorsement to the effect “Permitted” would not be due permission as contemplated under Section 155(2) Cr.P.C. In the case of PRAVEEN BASAVANNEPPA SHIVALLI vs. STATE OF KARNATAKA AND OTHERS reported in 2017(1) AKR 461, this Court has held that a mere endorsement made by the Magistrate on the application submitted by the Police Officer under Section 155 of Cr.P.C. as ‘permitted’ is not an ‘order’ in the eye of law and on that ground also, the proceedings initiated against the accused are rendered illegal and are liable to be quashed. Hence, continuation of proceedings against petitioner would not be just and proper and as such, petitioner is entitled for the relief sought for.
8. Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioner in Crime No.126/2018 registered by Basavanapatna Police Station for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 on the file of Principal Civil Judge (Sr.Dn.) & CJM Court, Channagiri, Davanagere, stands quashed and petitioner is acquitted of above said offences.
In view of petition having been allowed, I.A.No.1/19 for stay does not survive for consideration. Hence, it is rejected.
SD/- JUDGE RU