IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON'BLE Mr. JUSTICE P.S.DINESH KUMAR CRIMINAL PETITION NO.9688 OF 2018 Between:
1. Sardar @ Sooraj, S/o.S.Siraj, Aged about 40 years, R/at No.Flat No.1, 1st Floor, Rayan Woods Apartment, 3rd Cross, Sultanpalya Main Road, R.T.Nagar, Bengaluru-560 032.
2. Nazeer, S/o. Riyaz Ahamed, Aged about 34 years, R/at Hombeyanapalya, Sathyamangala Road, Tumakuru Town, Tumakuru-572101.
3. Balaraj @ Balu, S/o.Gopal, Aged about 32 years, R/at No.6, 2nd Cross, Sulthanpalya, R.T.Nagar, Bengaluru-560 032.
4. K.Dinesh, S/o.S.C.Kanawar, Aged about 40 years, R/at No.23, Saptagiri Enclave, 5th Cross, Tayappa Garden, Bannerghatta Road, Bengaluru-560086.
5. Vishwanath, S/o. Chenappa, Aged about 44 years, R/at No.60, Geddappa Block, 5th Main, Ganganagar, Bengaluru-32.
6. Rajashekar @ Manjunath, S/o. Ramakrishnaiah, Aged about 42 years, R/at 2/27, 1st Main, 6th Cross, Krishna Nillay, Ganganagar, Bengaluru-32.
7. Basavaraj, S/o. Channappa, Aged about 48 years, R/at 23, 2nd Cross, Old Ganganagar, Bengaluru-32.
8. Bhaskar @ Jaga, S/o. Rajagopal, Aged about 44 years, R/at Tank Bund Road, Near Vani School, Chitamani, Chikkaballapura District-567101.
9. Bhargav Janaka @ Mahesh, S/o.J.Balkrishna, Aged about 30 years, R/at 38, II Main, Chowdaiah Block, Near Government School, Bengaluru-06.
10. Vasu @ Vasuki, S/o. Vijaynarayan, Aged about 51 years, R/at.No.2, Jayaramareddy Compound, Near Mamtha School, R.T.Nagar, Bengaluru-560032.
11. Farooq Ahamed, S/o.M.Shabuddin, Aged about 46 years, R/at No.74, Appanna Block, Chamundi Nagar, R.T.Nagar, Bengaluru-32.
12. Manikalal @ Mehaboob, S/o. Tulsirama, Aged about 46 years, R/at No.17, II Floor, 80 Feet Road, R.T.Nagar, Bengaluru-32.
13. Santhosh @ Venkateshwaralu, S/o. Ramraju, Aged about 41 years, R/at No.14, II Cross, Chowdaiah Block, HMT Layout, R.T.Nagar, Bengaluru-32.
14. Praveen, S/o. Roshan Lal, Aged about 44 years, R/at No.2, Ground Floor, 1st Main, U.P.Shelter, Govindapa Street, 1st Main, Sheshadripuram, Bengaluru-20.
15. Shivanna, S/o. Krishna Murthy, Aged about 60 years, R/at No.68, 3rd Cross, Pipeline, Malleshwaram, Bengaluru-28. …Petitioners (By Sri.Deenabandhu Rai.N, Advocate) And:
State of Karnataka By R.T.Nagar Police and Central Crime Branch, Bengaluru, Now rep. by its Public Prosecutor, High Court Complex, Bengaluru-01. …Respondent (By Sri.S.Rachaiah, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the proceedings against the petitioner in Cr.No.275/2014 now in C.C.No.18313/2015 on the file of I Additional C.M.M, Bengaluru, in the above case.
This Criminal Petition coming on for Admission this day, the Court made the following:-
ORDER Though this petition is listed for admission, with the consent of the learned counsel for the petitioners and the learned HCGP, the matter is taken up for final disposal.
2. The accused Nos.1, 2, 4 & 5, 7, 9, 13, 15, 20, 23, 24, 26 and 27, 31 and 37 in C.C.No.18313/2015 on the file of I Additional Chief Metropolitan Magistrate, Bengaluru, charge sheeted for offences punishable under Section 420 of Indian Penal Code and under` Sections 78(a)(vi) and Section 80 of Karnataka Police Act (“K.P. Act” for short) have filed this petition with a prayer to quash proceedings against them in the trial Court.
3. Briefly stated the facts of the case are, on credible information that petitioners were indulged in ‘betting’ in respect of a cricket match, police conducted raid and seized 15 mobile phones, 11 sim cards, laptop, voice logger box, currency note counting machine, 5 pens, 11 books containing the details of cricket betting, 1 calculator, 1 L.G.Company T.V. After investigation, police filed charge sheet.
4. Shri.Deenabandhu Rai.N, learned Advocate for the petitioners submits that accused Nos.3 and 30 challenged proceedings initiated against them before this Court in Crl.P.No.9105/2017. By order dated 17.07.2018, this Court has quashed proceedings against the said accused. The petitioners herein are co-accused and similarly placed as that of accused Nos.3 and 30. A copy of the order dated 17.07.2018 in Crl.P.No.9105/2017 is placed for consideration of this Court.
5. Learned HCGP does not dispute the facts stated by the learned advocate for the State.
6. I have carefully considered the submissions of the learned Advocate for the petitioners, learned HCGP and perused the records.
7. Admittedly, this Court has quashed the criminal proceedings against accused Nos.3 and 30 by recording thus:
“ 6.The contentions urged by the petitioners are as follows:
i) The principal offence charged against the petitioners is a non-cognizable offence. By virtue of Section 155(2) of Cr.P.C., no Police Officer is empowered to investigate such cases without prior order of the learned Magistrate having power to try such cases. In this case, the Police Inspector who lodged the complaint has registered the case and commenced investigation without authorization by the competent Magistrate as required under Section 155(2) of Cr.P.C. and therefore, the initiation of the proceedings are illegal and contrary to the mandatory provisions contained under Section 155(2) of Cr.P.C. On this sole ground, the proceedings are liable to be quashed.
ii) Insofar as the case registered under Section 420 of IPC is concerned, the said provision is invoked only to get over the requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation attracting the ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioners or other accused persons named in the FIR. Therefore, the prosecution of the petitioners for the alleged offence is an abuse of the process of the Court.
iii) Alternatively, it is argued that the offence punishable under Section 420 of IPC cannot be investigated by the police without registration of the FIR as required under Section 154 of Cr.P.C. In the instant case, the records reveal that the investigation was taken up even before registration of the case. Therefore, even on this score also the impugned proceedings cannot be allowed to continue.
7. In similar set of facts, in YAMMIGANOOR BASHA @ MEHABOOB YAMMIGANOOR BHASHA @ YALLARTHI YAMMIGANOOR BHASHA & OTHERS vs.
THE STATE OF KARNATAKA Criminal Petition Nos.100418/2018 c/w. Criminal Petition Nos.100419/2018, 100420/2018, 100421/2018, 100422/2018, 100423/2018, 100424/2018, 100425/2018, 100426/2018 and 100427/2018, NABISAB s/o. SHEK IMAMSAB vs. STATE OF KARNATAKA (Crl.P.No.3365/2016 and connected matters disposed of on 07.04.2017) as well as in the decisions rendered by this Court in the case of SHARATH @ SALIM vs. THE STATE OF KARNATAKA (Crl.P.No.101833/2015 and connected petitions disposed of on 18.12.2015), relying on the decision passed by this Court in the batch of petitions in Crl.P.No.100319/2014 has held that non- compliance of the mandatory requirements under section 155(2) would render the proceedings illegal and invalid. The learned counsel had also produced the copy of the order passed by the Hon’ble Supreme Court of India in S.L.P.Nos.8567- 8580/2016 arising out of the common order passed by this Court in Crl.P.No.100319/2014. The said S.L.P.Nos.8567-8580/2016 was dismissed by the Hon’ble Supreme Court of India, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014.
8. Undisputedly, all the above proceedings are initiated against the petitioners without prior orders of the competent Magistrate as required under section 155(2) of Cr.P.C. As a result, the registration of the FIR and the subsequent investigation are vitiated by incurable illegality and are liable to be set aside.”
8. Hence, following the earlier decision of this Court, this petition is allowed and proceedings in C.C.No.18313/2015 on the file of I Additional Chief Metropolitan Magistrate, Bengaluru are quashed so far as petitioners are concerned.
No costs.
Sd/-
JUDGE bnv*