IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9736 OF 2018 BETWEEN:
SANDEEP R. SHETTY S/O. RAMESH SHETTY AGED ABOUT 34 YEARS R/AT MATRUSHRI NILAYA NEAR KOPPALA, BAJGOLI POST MUDARU VILLAGE KARKALA TQ, UDUPI – 575 125 ... PETITIONER (BY SRI. DHANANJAY KUMAR, ADV.) AND:
1 STATE OF KARNATAKA BY KARKALA RURAL POLICE STATION REP. BY SPP, HIGH COURT OF KARNATAKA BANGALORE – 560 001 2 NASEER HUSSAIN POLICE SUB INSPECTOR KARKALA RURAL POLICE STATION UDUPI – 574 118 ….RESPONDENTS [BY SRI. S. RACHAIAH, HCGP] THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C. NO.1016/2018 PENDING IN THE COURT OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KARKALA IN CR. NO.80/2018 REGISTERED BY THE KARKALA RURAL POLICE AS AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 78[I], 78[III] OF THE KARNATAKA POLICE ACT 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 Petitioner is before this Court for quashing of the proceedings pending in C.C. No.1016/2018 (Crime No.92/2018), registered by Karkala Rural Police, for the offences punishable under Sections 78[I] and 78[III] of the Karnataka Police Act, 1963, which proceedings are pending on the file of learned II Additional Civil Judge and JMFC, Udupi.
2. The gist of the prosecution case is as follows:- The Sub Inspector of Police had received a credible information on 11.08.2018 that one Padmaprasad was gambling by playing matka and jugari near Bajagoli Chirag Bar, Moodar Village, Karkala Taluk. After receiving information, respondent No.2 along with panchas raided the spot and found that accused had indulged in playing matka jugaari and was collecting money from public near Bajagoli bus stand and was inviting the general public to play matka. Police seized articles used for said illegal activity and a case came to be registered in Crime No.92/2018.
3. I have heard the arguments of Sri Dhananjay Kumar, learned counsel appearing for petitioner and Sri S.Rachaiah, learned HCGP appearing for the State. Perused records.
4. The contention of Sri Dhananjay Kumar, learned counsel appearing for the petitioner is to the effect that offences alleged against petitioner are non- cognizable and without obtaining permission from the jurisdictional Magistrate as required under Section 155(2) of Cr.P.C, FIR 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 petitioner 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 petitioner inasmuch as material on record does not disclose that permission as prescribed under Sub- Section (2) of Section 155 of Cr.P.C. having been obtained from the jurisdictional Magistrate by the respondent before registration of FIR in question against the petitioner for the offences punishable under Sections 78[I] & 78[III] of the Karnataka Police Act, 1963 which undisputedly are non-cognizable offences. Section 155(1) of Cr.P.C. mandates that such information received by the police shall be entered in a Book to be kept by such Station House Officer in such Form. Thus, entering of substance of information so received in a Book kept at Police Station and reference to it to the Magistrate is mandatory and obtaining permission as required under section 155[2] is mandatory. Likewise application of judicial mind by the Magistrate to the material placed by police before according permission is also necessary. There is no material on record to this effect and the material relied upon by prosecution does not satisfy the requirement of Section 155(1) and (2) of Cr.P.C as noticed hereinabove.
7. The offence alleged against the petitioner is a non-cognizable offence and by virtue of the safeguard provided under Section 155(2) of Cr.P.C, the respondent- police could not have embarked upon investigation into the alleged offence, without the express permission by the jurisdictional Magistrate.
8. 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. Thus, illegality in not obtaining permission as required under Section 155(2) of Cr.P.C. continues and as such the continuation of proceedings against petitioner would be an abuse of process of law as it cannot stand the test of law. On these grounds, petitioner has to succeed.
Hence, I proceed to pass the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending in C.C.No.1016/2018 (Crime No.92/2018) against petitioner for the offence punishable under section 78[1] and 78[III] of Karnataka Police Act, 1963, on the file of II Additional Civil Judge and JMFC, Karkala, stands quashed and petitioner is acquitted of the aforesaid offence.
In view of disposal of the petition on main, I.A.No.1/2018 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE AN/-