IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.366/2019 BETWEEN:
LAKSHMI HEBBALKAR AGE: 44 YEARS, OCC: AGRICULTURE /SOCIAL SERVICE, FORMER KARNATAKA PRADESH CONGRESS MAHILA GHATAKADA ADYAKSH BENGALURU, KARNATAKA, NOW R/O PLOT NO.27/B, “BASAVAKUNJ”, NEAR K.L.E. SCHOOL, BELAGAVI, DISTRICT: BELAGAVI-591 108.
... PETITIONER (BY SRI. GANGADHAR S HOSAKERI, ADVOCATE) AND:
1. STATE OF KARNATAKA GUNDLUPET POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 560 001.
2. MR. MAHADEVA.K SECTOR OFRFICER GROUP-14 GUNDLUPET, CHAMARAJNAGAR KARNATAKA – 571 111.
... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.1002/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUNDLUPET ARISING OUT OF GUNDLUPET P.S., IN CR.NO.199/2017 FOR THE OFFENCE P/U/S 171-E, 171-F, 171-H OF IPC, AS AGAINST THE PETITIONER HEREIN WHO IS ARRAYED AS ACCUSED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for admission, by consent of learned Advocates appearing for parties, it is taken up for final disposal and same is being disposed of by this order.
2. Petitioner who is the sole accused in Crime No.199/2017 registered by Gundlupete Police Station for the offences punishable under Sections 171-E, 171-F, 171-H IPC is before this Court for quashing of said proceedings, which was based on a complaint lodged by second respondent. It was alleged in the complaint that in the by-election of Gundlupete Legislative Assembly Constituency being held on 09.04.2017, petitioner had visited Annurukeri village on 06.04.2017 on behalf of Congress party to get votes and to influence voters, she has distributed money to the voters. It was also further alleged that Sri. Y.N. Abhishek Kumar, agent for Bharathiya Janatha Party had given a report and compact disk to the election officer regarding the alleged incident and as such, case came to be registered for the offences aforestated. Hence, for quashing of said proceedings, petitioner is before this Court.
3. I have heard the arguments of Sri.
Gangadhar S. Hosakeri, learned Advocate appearing for petitioner and Sri.S.Rachaiah learned HCGP appearing for respondents.
4. A Co-ordinate Bench of this Court while adjudicating similar issue in Crl.P.No.2997/2014 c/w Crl.P.No.2998/2014 disposed of on 12.06.2017 has held that endorsement made on the application by the Magistrate as “permitted” would not amount to prior permission as contemplated under Section 155 (2) Cr.P.C. It came to be held to the following effect:
“11. But looking to the endorsement said to be made by the learned JMFC Court on the said application, whether it can be construed as a prior permission as required under Section 155(2) of Cr.P.C In this connection, learned senior counsel for the petitioner by way of reply submitted and relied upon another decision of the learned single Judge 2017(1) AKR 461 in the case of Praveen Basavanneppa Shivalli vs. State of Karnataka and others. I have perused the said order passed by the learned Single Judge of this Court and the relevant paragraph No.15 reads 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 Section 155 Cr.P.C, the investigation made and the consequential charge-sheet filed for the offences under Section 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 Section 155 Cr.P.c. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent.”
12. Therefore, looking to the endorsement made by the learned Magistrate, it cannot be said that there is mental application by the learned Magistrate to the materials before making such endorsement; there is nothing on record on the said application that at atleast the learned Magistrate perused the records of the case and then made such an endorsement as ‘permitted’. In the absence of any such indication in the said application it cannot be construed that all the materials available were perused by the learned Magistrate and then he found that it is a case to give the permission to proceed with the matter. Hence, even looking to the endorsement, so also, the order relied upon by the learned senior counsel for the petitioners, I am of the opinion that it is not in compliance of Section 155(2) of Cr.P.C. Hence, looking to the entire materials placed on record, I am of the clear opinion that there is no compliance of mandatory provisions. Even looking to the other materials placed on record there is no prima- facie case so as to attract the alleged offence as against the petitioner herein. The proceedings initiated are abuse of the process of the Court and it is waste of time and energy of the Court. Accordingly, both the petitions are allowed. The proceedings initiated in FIR No.113/2013 now pending in C.C.No.840/2013 and FIR No.109/2013 now pending in C.C.No.825/2013 and which are pending on the file of Addl. Civil Judge and JMFC Court at Athani, are hereby quashed.”
5. In the aforestated background, when the facts on hand are examined as also the contentions raised by the learned Advocate appearing for petitioner, this Court is of the considered view that learned Magistrate has committed an error in taking cognizance of the alleged offences by endorsement dated 07.01.2017 to the effect “Permitted” since the offence alleged against petitioner being non cognizable offence, the police officer did not have power to investigate the matter without obtaining order of permission from the jurisdictional Magistrate and the endorsement made by the learned Magistrate in the instant case cannot be held to be by application of judicious mind. There is no material on record to show that learned Magistrate had perused the records. In the absent of any proof to said effect, interference cannot be drawn that learned Magistrate had examined all the reasons and then granted permission. Hence, this Court is of the considered view that there is violation of mandate of Section 155 (2) Cr.P.C.
6. In that view of the matter, proceedings initiated against petitioner cannot be proceeded to as the offences alleged against petitioner is non- cognizable and prior permission ought to have been taken by Police Officer from the jurisdictional Magistrate as required under sub-section (2) of Section 155 Cr.P.C. Even looking at other material on record there is no prima facie case so as to attract the alleged offences against petitioner. Hence, prayer sought for in this petition deserves to be granted.
Hence, I proceed to pass the following;
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioner in C.C.No.1002/2017 for the offences punishable under Sections 171E, 171F, 171H IPC, pending on the file of Principal Civil Judge and JMFC, Gundlupete is hereby quashed.
(3) Petitioner is acquitted of said offences.
SD/- JUDGE RU