IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7368/2016 BETWEEN:
SMT.. LAKSHMI A E W/O S.P.RAJANNA, R/AT ALABOJANAHALLI, C.R.KERE HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 401 (BY SRI NARENDRA GOWDA, ADVOCATE) AND:
THE SUB INSPECTOR OF POLICE K.M.DODDI, MANDYA, REPTD. BY S.P.P.
HIGH COURT BUILDING, BENGALURU-560 001.
(BY SRI I.S.PRAMOD CHANDRA, SPP-II) …PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO QUASH THE COMPLAINT AND THE ENTIRE PROCEEDINGS PENDING BEFORE THE COURT OF C.J. AND J.M.F.C., MADDUR, IN C.C.NO.384/2012 (CR. NO.319/2010) FOR THE OFFENCES P/U/Ss.79 AND 80 OF KARNATAKA POLICE ACT, 1963 ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 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 79 and 80 of the Karnataka Police Act, 1963 (hereinafter referred to as the “K.P. Act” for short) are vitiated for want of prior permission of the 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 79 and 80 of the K.P. Act alleging that the petitioner was found indulging in a game of chance called “Andar -
Bhahar”. Based on the said information, raid was conducted in the presence of panch witnesses. Petitioner was arrested along with some cash, few gambling cards and two mobile handsets were seized from the possession of the accused. Petitioner is the owner of the premises.
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 offences. 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 in Criminal Petition No.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) of Cr.P.C., 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 was dismissed by the Hon’ble Supreme Court of India, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014 and batch of matters.
7. Undisputedly, the 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.
8. Accordingly, the petition is allowed and the proceedings initiated against the petitioner in Cr.No.319/2010 registered by the K.M.Doddi Police, Mandya, now pending on the file of the Civil Judge and JMFC, Maddur in C.C.No.384/2012 are quashed.
In view of the disposal of the main petition, I.A.No.1/2016 does not survive for consideration and the same is disposed.
Sd/- JUDGE nvj