IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. No. 6686/2017 & CRL.P. No. 6687/2017 IN CRL.P. NO. 6686/2017 BETWEEN MOHAMED HANEEF KHAN, S/O GUNGNA BERI, AGED ABOUT 45 YEARS, R/AT KODJE HOUSE, NERALAKATTE POST, BANTWAL-574 253 ... PETITIONER (BY SRI. MOHAMMED TAHIR, ADV.) AND STATE BY BANTWAL TOWN POLICE, REP. BY STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT COMPLEX, OPP. VIDHANA SOUDHA, BENGALURU-560 001 ... RESPONDENT (BY SRI. SANDESH J. CHOUTA, SPP-II) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS INITIATED IN C.C.NO.2140/2016 ON THE FILE OF HON'BLE ADDITIONAL CIVIL JUDGE AND JMFC, BANTWAL DAKSHINA KANNADA ARISING OUT OF FIR NO.244/2015 OF BANTWAL POLICE STATION, DAKSHINA KANNADA DISTRICT FOR THE OFFENCE P/U/S 153(A) OF IPC WHEREIN PETITIONER IS ARRAYED AS ACCUSED.
IN CRL.P. NO. 6687/2017 BETWEEN 1. ILIYAS @ ILIYAS MOHAMMED S/O M. MOHAMMED, AGED ABOUT 47 YEARS, R/AT SALAM MANZIL, BEHIND TUMBE MASJID, TUMBE VILLAGE, BANTWAL TALUK – 574 143 DAKSHINA KANNADA 2. ABDUL LATEEF, S/O P. K. ISMAIL, AGED ABOUT 41 YEARS, R/AT TAJ MANZIL, BELLICHADAVU @ B C NAGAR, ESHWARI MANG, NEVTAGERE, MUDNURU VILLAGE, PUTTUR TALUK, D.K. ... PETITIONERS (BY SRI. MOHAMMED TAHIR, ADV.) AND STATE BY BANTWAL TOWN POLICE, REP. BY STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT COMPLEX, OPP. VIDHANA SOUDHA, BENGALURU-560 001 ... RESPONDENT (BY SRI. SANDESH J. CHOUTA, SPP-II) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS INITIATED IN C.C.NO.1916/2016 ON THE FILE OF HON'BLE ADDITIONAL CIVIL JUDGE AND JMFC, AT BANTWAL DAKSHINA KANNADA AGAINST THE PETITONERS HEREIN,ARISING OUT OF CRIME NO.02/2009 OF BANTWAL POLICE STATION, DAKSHINA KANNADA DISTRICT FOR THE OFFENCE P/U/Ss. 153(A), 153(B) R/W SECTION 34 OF IPC THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION A/W I.A. NO.1/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
COMMON ORDER The petitioner in Crl. Petition No.6686/2017 has sought for quashing of C.C. No.2140/2016 arising out of FIR No.244/2015 of Bantwal police Station, registered against him for the offence punishable under section 153(A) of IPC, pending on the file of Additional Civil Judge and JMFC, Bantwal, D.K.
2. The petitioners in Crl.P. No.6687/2017 have sought for quashing of C.C. No.1916/2016 arising out of FIR No.2/2009 of Bantwal Town Police Station, registered against them for the offences punishable under Sections 153(A), 153(B) r/w. 34 IPC, pending on the file of Additional Civil Judge (Jr.Dn.) and JMFC, Bantwal, D.K.
3. The police have submitted charge sheets in the above said two cases against the petitioners for the offences as noted above, on the allegation that, they have indulged in making reckless speeches in order to enrage the people at large in order to cause damage to the communal harmony etc. The factual aspects and the date of offences may be different in the above said two cases, however, the legal question involved in the above said two cases are common. Therefore, the said two cases are taken-up together, heard and common order is passed.
4. In the said two cases, the police have invoked the provisions of Section 153(A) and 153(B) of IPC in order to file charge sheet and to request the jurisdictional Magistrate to take cognizance of the said offences, the police have to fulfill some legal requirements. Section 196 of Cr.P.C. creates a bar on the court to take cognizance of the said offences, if such legal requirement has not been fulfilled. Section 196 of Cr.P.C. says that:
196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2 Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or (b) a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.
(1A) No Court shall take cognizance of-
(a) any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State o Government or of the District Magistrate.] (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal code (45 of 1860 ), other than a criminal conspiracy to commit 1 an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before according sanction2 under sub- section (1) or sub- section (1A) and the District Magistrate may, before according sanction under sub- section (1A) and the State Government or the District Magistrate may, before giving consent under sub- section (2), order a preliminary investigation by a police officer not being below the 1 Subs. Act. 45 of 978, s. 16, for" a cognizable offence" (w. e. f. 18- 12- 1978 ) 2 subs. and ins by act 63 of 1980 s. 3 (w. e. f. 23- 9- 1980 ) rank of Inspector, in which case such police officer shall have the powers referred to in sub- section (3) of section 155.
5. Therefore, this particular provision mandates that previous sanction of the Central Government or the State Government or the District Magistrate is the legal requirement for the purpose of the Magistrate taking cognizance of the offences under Sections 153(A) and 153(B) of IPC. Though serious allegations are made, but the police have not taken any permission from the State Government or the District Magistrate for the purpose of submitting the charge sheet before the court in the above said cases. Therefore, cognizance taken by the Magistrate without the said legal requirement, is bad in law and the same is liable to be quashed.
6. In the above circumstances, I proceed to pass the following:-
ORDER The petitions are allowed. Consequently, the cognizance taken by the learned Magistrate in C.C. No.2140/2017 and CC No.1916/2016 registered against the petitioners for the offences noted above, pending on the file of said Additional Civil Judge and JMFC, Bantwal, Dakshina Kannada and entire proceedings therein are hereby quashed.
The learned Magistrate has to return the charge sheet to the police for appropriate action, if advised.
In view of disposal of these cases, the application-IA No.1/2017 filed for stay in the said cases, do not survive for consideration. Accordingly, the said applications stand disposed of.
KGR* Sd/-
JUDGE