IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9737 OF 2018 BETWEEN:
JOKIM D’ SOUZA, S/O. LATE GEORGE D’SOUZA AGED ABOUT 40 YEARS R/AT PANJOTHU HOUSE DEEPADAKATTE POST NITTE VILLAGE KARKALA TQ, UDUPI – 576 103 ... PETITIONER (BY SRI. DHANANJAY KUMAR, ADV.) AND:
1 STATE OF KARNATAKA BY UDUPI CEN POLICE STATION REP. BY SPP, HIGH COURT OF KARNATAKA BANGALORE – 560 001 2 NANJA NAIK N POLICE SUB INSPECTOR KARKALA TOWN POLICE STATION UDUPI – 574 118 ….RESPONDENTS [BY SRI. S. RACHAIAH, HCGP] THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C. NO.989/2018 PENDING IN THE COURT OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI IN CRIME NO.133/2018 REGISTERED BY THE KARKALA RURAL POLICE AS AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 78[I], 78[III] OF THE KARNATAKA POLICE ACT INSOFAR AS THE PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is before this Court for quashing of the proceedings pending in C.C. No.989/2018 (Crime No.133/2018), registered by Karkala Town police station, for the offence punishable under Sections 78[I] and 78[III] of the Karnataka Police Act, 1963, which is pending on the file of Learned Principal Civil Judge and JMFC, Udupi.
2. The gist of the prosecution case is as follows:- The Sub Inspector of Police had received a credible information on 11.08.2018 that one Prakash was playing matka and jugari near Guddeyangady Junction, Karkala Taluk and collecting money from general public. After receiving information, respondent No.2 along with panchas raided the spot and found that accused had indulged in playing matka jugaari and was found to be collecting money from public near Bajagoli bus stand and was inviting the general public to play matka. Police seized the articles used for said illegal activity and FIR came to be registered in Crime No.133/2018.
3. I have heard the arguments of Sri Dhananjay Kumar, learned counsel appearing for the petitioner and Sri S.Rachaiah, learned HCGP appearing for the State. Perused records.
4. Contention of Sri Dhananjay Kumar, learned counsel appearing for the petitioner is that offences alleged against petitioner are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C, FIR has been registered and investigation has been taken up and as such proceedings cannot be continued as it is illegal. Hence, he prays for quashing of the proceedings.
5. However, learned High Court Government Pleader appearing for the respondent-State would defend the initiation of prosecution against petitioner 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 too long to accept the submissions of learned counsel appearing for the petitioner 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 petitioner for the offences punishable under Sections 78[I] & 78[III] of the Karnataka Police Act, 1963 which undisputedly is a non-cognizable offence. Section 155(1) of Cr.P.C. mandates that such information received by the police shall be entered in a Book to be kept by such Station House Officer in such Form after entering the substance of information so received in a Book kept at the Police Station, reference to the Magistrate is required to be made necessary. On such permission being sought, judicious application of mind by the Magistrate to the material placed by the police is required before according permission. There is no material on record to this effect and material relied upon by prosecution does not satisfy the requirement of Section 155(1) and (2) of Cr.PC as noticed hereinabove. Thus, illegality in not obtaining the permission from jurisdictional Magistrate as required under Section 155(2) of Cr.P.C. continues and as such continuation of proceedings against petitioner would be an abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioner has to succeed.
Hence, the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending in C.C.No.989/2018( Crime No.133/2018), on the file of Principal Civil Judge and JMFC, Udupi stands quashed and petitioner is acquitted of the aforesaid offence.
In view of disposal of the petition, I.A.No.1/2018 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE AN/-