IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7332/2018 BETWEEN:
PADMAPRASAD S/O GUNAPALA AGED ABOUT 42 YEARS R/A BAJARKALA BAJAGOLI, MUDARU VILLAGE KARKALA TQ, UDUPI – 576 103.
... PETITIONER (BY SRI. DHANANJAY KUMAR., ADVOCATE) AND:
1. STATE OF KARNATAKA BY KARKALA RURAL POLICE STATION, KARAKALA, D.K REP. BY SPP, HIGH COURT OF KARNATAKA BANGALORE – 560 001.
2. PURUSHOTHAM POLICE SUB INSPECTOR KARKALA RURAL POLICE STATION, UDUPI – 574 118.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.809/2018 PENDING IN THE COURT OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA IN CRIME NO.18/2018 REGISTERED BY THE KARKALA RURAL POLICE AS AGAINST THE PETITIONER FOR OFFENCE PUNISHABLE UNDER SECTION 78(1), 78(III) OF THE KARNATAKA POLICE ACT, 1963 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 Petitioners are before this Court for quashing of the proceedings pending in C.C.No.809/2018 (Crime No.18/2018), registered by Karkala Circle police station, Udupi District for the offences punishable under Sections 78(1) & 78(3) of the Karnataka Police Act which proceedings are pending on the file of II Additional Civil Judge & JMFC, Karkala, Udupi.
2. The gist of the prosecution case is as follows:-
The Sub Inspector of Police had received a credible information on 31.01.2018 at about 12.00 noon, that a person by name Sri Padmaprasad was playing matka, jugaari near Jain Hotel, Bajagoli Bus Stand and police have raided said place along with staff on the same day, that is, on 31.01.2018 at about 8.30 p.m., and found petitioner was playing Matka Jugaari and seized cash of Rs.1,250/- and other materials and apprehended the petitioner.
3. Heard Sri. Dhananjay Kumar, learned Advocate appearing for petitioner and Sri. S. Rachaiah, learned HCGP appearing for respondent No.1. 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. Hence, prays for quashing of proceedings.
5. However, the 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 would disclose that prosecution has relied upon the alleged permission obtained from jurisdictional Magistrate on 31.01.2018, the certified copy of which has been produced along with this petition would disclose that Magistrate has endorsed on the requisition as “Permitted”. The offence alleged against the petitioner is a non-cognizable offence and by virtue of Section 155(2) of Cr.P.C. respondent-Police could not have taken up investigation into alleged offence, without obtaining permission by the jurisdictional legislative.
7. 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.
8. Undeniably, the offence alleged is a non- cognizable offence. Section 155 of the Cr.P.C, deals with the procedure of investigation and cognizance of non-cognizable cases.
“155. Information as to non- cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.”
9. As per the above provisions, when an Officer-in-charge of the police station receives an information with regard to commission of non- cognizable offence/s, (i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
10. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr.P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C., or obtained necessary order as envisaged under Section 155(2) of Cr.P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr.P.C.”
11. In the instant case, such an exercise has not been undertaken and continuation of proceedings against petitioner would not be just and proper and as such, petitioner is entitled to the relief sought for.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioner in CC No.809/2018 registered by Karkala Circle Police Station for the offences punishable under Sections 78(1) & 78(3) of the Karnataka Police Act, 1963 on the file of II Additional Civil Judge & JMFC, Karkala, Udupi stands quashed and petitioner is acquitted of aforesaid offences.
In view of petition having been allowed, I.A.No.1/18 for stay does not survive for consideration. Hence, it stands rejected.
SD/- JUDGE *sp