IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.4861/2017 BETWEEN:
1. R.D. SREENIVAS S/O RAMDAS AGED ABOUT 55 YEARS R/O NO.2/1, 2ND MAIN ROAD 3RD BLOCK, TYAGARAJ NAGAR BENGALURU – 560 028.
2. SUPREETH S/O R.D. SREENIVAS AGED ABOUT 30 YEARS R/O NO.2/1, 2ND MAIN ROAD 3RD BLOCK, TYAGARAJ NAGAR BENGALURU – 560 028.
(BY SRI BHARATH KUMAR V., ADV.,) ... PETITIONERS AND:
1. STATE THROUGH STATION HOUSE OFFICER TYAGARAJNAGAR POLICE STATION REP. BY SPECIAL PUBLIC PROSECUTOR HON’BLE HIGH COURT BENGALURU – 560 001.
2. SMT. ASHALATHA W/O VENKATESH AGED ABOUT 40 YEARS R/O NO.02, 1ST FLOOR 2ND CROSS, 2ND MAIN ROAD 3RD BLOCK, TYAGARAJNAGAR BENGALURU – 560 028.
(BY SRI S. RACHAIAH, HCGP FOR R1 …RESPONDENTS SMT. RAKSHITHA D.J., ADV. FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C., PRAYING TO QUASH THE FIR BEARING NO.171/2014 DATED 12.12.2014 ALONG WITH INFORMATION DATED 10.12.2014 REGSITERED WITH THE RESPONDENT THYAGARAJANAGAR POLICE STATION (ANNEXED VIDE ANNEXURE-A AND A1) AND QUASH THE FINAL REPORT FILED BY THE RESPONDENT POLICE IN THE SAID MATTER BEARING CR.NO.171/2014 CURRENTLY RENUMBERED AS MATTER BEARING C.C.NO.12573/2016 PENDING ON THE FILE OF VIII ADDL.C.M.M., BENGALURU (ANNEXED VIDE ANNEXURE- B) AND ETC., THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioners and the respondents. Perused the records.
2. The respondent No.1 – Police after taking permission from the Jurisdictional Magistrate have investigated non-cognizable offences punishable under Sections 352, 504, 506 r/w Section 34 of IPC and filed charge sheet against the petitioners for the above said offences. Without going into the factual matrix of this case, it is just and necessary to find out whether the police have got such jurisdiction to go directly to the Magistrate and obtain permission to investigate a non- cognizable offence when the First Information Report was placed before them in respect of a non-cognizable offence.
3. This point is directly covered by catena of decisions of this Court reported in (i) Crl.P.No.3082/2007 between Anand Singh vs.
State of Karnataka and (ii) Crl.P.No.4264/2009 between J. Somashekar vs. State of Karnataka & Another, wherein this Court has categorically made an observation while dealing with the provision under Section 155(2) of Cr.P.C.
4. In Crl.P.No.3082/2007, it has been categorically observed at para 8 as follows:
“8. In the light of sub-Section (2) of Section 155 Cr.P.C., the contention of the learned SPP that the Police Officer too, can in his discretion request the Magistrate for permission to investigate into a non- cognizable offence, even if the informant fails to petition the Magistrate for such an order, cannot be countenanced. I am afraid that such a contention if accepted, would permit the Police Officer to act according to his whim and fancy, to pick and choose, which cannot but be characterized as arbitrary or capricious. In my considered opinion, the Statute does not empower the Police Officer to requisition, by a written representation to the Magistrate for grant of permission to investigate into the non-cognizable offence.”
The Court has further made an observation at para 7, which reads as follows:
“7. If the informant desires to seek a direction to the police officer to investigate into the non-cognizable offence, at the hands of the Magistrate, has to lodge a complaint under Section 200 Cr.P.C., when the Magistrate would apply his mind to the averments in the complaint and on being satisfied that there are reasons to believe that a non- cognizable offence is committed may direct investigation by the jurisdictional Police. In any event, such a power cannot be exercised either arbitrarily or capriciously and must result in a judicial order. The judicial order does not mean extracting the entire text of the complaint and the evidence adduced before the Magistrate. What is required by law is application of mind to the material on record, satisfy himself that there is a need to investigate into the commission of the non-cognizable offence. It is only thereafter that the Magistrate under sub-Section (2) of Section 155 Cr.P.C. directs the Police Officer to investigate into the non-cognizable as otherwise, the Police Officer has no power to investigate into such an offence. Sub-Section (3) of Section 155 Cr.P.C., requires the Police Officer who receives the order of Magistrate, to exercise the same power in respect of investigation (except the power to arrest without warrant) as the officer may exercise in a cognizable case.”
5. In view of the above said decision and also on reading the provision under Section 155(2) of Cr.P.C., when once a complaint is lodged which are referable to a non-cognizable offence, then the Police Officer under Section 155(2) of Cr.P.C. has to refer the complaint to the Jurisdictional Magistrate and the Jurisdictional Magistrate thereafter pass appropriate orders after examining the averments in the complaint and thereafter satisfy himself that it requires police investigation. The Magistrate can also treat the FIR lodged by the complainant as if a complaint under Section 200 Cr.P.C. and he himself can enquire into the matter. In the above said circumstances, in this particular case, though the Police have directly gone to the Magistrate and took permission to investigate the matter, the same is hit by Section 155(2) of Cr.P.C. Hence, I pass the following:
ORDER Petition is allowed. In view of the rulings as already noted, registration of the case by the Police and investigation is bad in law and liable to be quashed. The learned counsel for respondent No.2 submits that she may be permitted to file a private complaint. I do not want to express anything on this point. However, if law permits, the respondent No.2 can do so.
Sd/- JUDGE ca