IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1288/2019 BETWEEN:
1. SRI. A.KUMARASWAMY @ KUNTAKUMARA @ KUMARA, S/O ALKEGOWDRU, AGED ABOUT 43 YEARS, OCCUPATION: BUSINESSMAN, 2. SMT.VASUNDARA K.M., W/O KUMARASWAMY, AGED ABOUT 42 YEARS, BOTH WERE RESIDING AT BESIDES KANIVE MARAMMA TEMPLE, KELAGOTE, CHITRADURGA – 577 501.
(BY SRI. SRINIVAS N., ADVOCATE) AND:
STATE OF KARNATAKA BY SPP, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
BY CHITRADURGA EXTENSION POLICE STATION, CHITRADURGA – 577 501.
(BY SRI. S. RACHAIAH., HCGP) ... PETITIONERS ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONERS HEREIN PENDING IN C.C.NO.2295/2018 PENDING ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., CHITRADURGA FOR THE OFFENCE P/U/S 79, 80 OF KARNATAKA POLICE ACT AS IT RELATES TO THE PETITIONERS HEREIN.
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 the proceedings pending in C.C. No.2295 of 2018 (Crime No.102 of 2017), registered by the Chitradurga Extension police station for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963, which proceedings are pending on the file Principal Senior Civil Judge & CJM, Chitradurga.
2. The gist of the prosecution case is as follows:-
On a suo motu complaint of one Sri Satish, the PSI attached to respondent – Police, Chitradurga Extension Police Station, received credible information on 31.12.2017 between 6.00 to 7.00 p.m. that on the terrace of Kunta Kumara, at C.K.Pura, Kumara House, Chitradurga Town, petitioners were playing cards game of “Andhar Bahar” by indulging in gambling. Police raided said place along with staff on the same day, that is, on 30.12.2017 at about 6.00 p.m. and found that petitioners were playing game of “Andhar Bahar” and as such alleging it is a game of chance, they seized the materials and apprehended petitioners and registered FIR in Crime No.102/2017 for the aforesaid offences. For quashing of said proceedings petitioners are before this Court.
3. I have heard the arguments of Sri. Srinivas N., learned counsel appearing for the petitioners and Sri. S. Rachaiah, learned High Court Govt. Pleader appearing for the State. Perused records.
4. The contention of Sri. Srinivas N., learned counsel appearing for petitioners, is that offences alleged against petitioners are non-cognizable and though permission from the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C had been obtained, there is no detailed order passed in this regard by the Magistrate disclosing judicious application of mind. It is also contended that investigation which has been taken up cannot be continued as it is illegal. He would also elaborate his submissions by contending that playing game of cards as “Andhar Bahar” is a game of skill and not a game of chance. Hence, he prays for quashing of proceedings.
5. However, learned High Court Govt. Pleader appearing for the respondent-State would defend the initiation of prosecution against petitioners and prays for dismissal of the petitions.
6. Having heard the learned Advocates appearing for parties and on perusal of records, it would not detain this court for too long to accept the submissions of learned counsel appearing for the petitioners, inasmuch as material on record does not disclose permission of Magistrate having been granted as prescribed under sub-section (2) of Section 155 of Cr.P.C. by the respondent before registering the FIR in question against the petitioners for the offence punishable under Sections 79 & 80 of the Karnataka Police Act, 1963 which undisputedly is a non- cognizable offence.
7. A coordinate Bench 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. This Court after adverted to earlier decisions has held in W.P.No.42073-42075/2018 (GM-RES) (The Padubidri Members lounge and others v/s Director General and Inspector General of police and others) disposed of on 03.10.2018 that endorsement made by the learned Magistrate by endorsing as “Permitted”, does not satisfy the requirement of Section 155(2) Cr.P.C. In the instant case, as noticed by learned Magistrate has endorsed as “permitted” while according permission. This would not be the mode and method in which the permission can be granted. In the light of aforestated decisions and endorsement made by the learned Magistrate to the effect ‘Permitted’ would result in several consequences flowing there from and as such judicious application of mind would be the essential criteria before according such permission, same has been lacking in the instant case. In other words, subjective satisfaction and objective assessment of the material that would be placed by the Police is the hall mark for granting permission, which is the mandate of Section 155(2) Cr.P.C. In the instant case, such an exercise has not been undertaken as noticed hereinabove and as such continuation of proceedings against petitioners would not be just and proper and as such, petitioners are entitled to the relief sought for.
9. In the light of above discussion, it has to be held that, endorsement made by learned Magistrate to the effect ‘permitted’ does not satisfy the requirements of Section 155(2) of Cr.P.C. and it cannot stand the test of law. On this short ground itself, petitioners would succeed in the petition.
Hence, the following:-
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings pending in C.C.No.2295 of 2018 (Crime No.102 of 2017), on the file of the Principal Senior Civil Judge & CJM, Chitradurga, stands quashed and petitioners are acquitted of the aforesaid offence.
In view of disposal of petition, I.A.1/19 for stay does not survive for consideration and hence, stands disposed of.
SD/- JUDGE MGN