IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5594/2016 BETWEEN:
1. Sri. Ashish Goyal, S/o. Mr. T.R. Agarwal, Aged about 37 years, 2. Sri. Aniruddha Banerjee S/o Mr. Buddhadeb Banerjee, Aged about 48 years, Both are at:
VMware Software India Pvt. Ltd. Kalyani Magnum, JP Nagar, Bengaluru City – 560 076 Karnataka. ... Petitioners (By Sri. Mahesh S, Advocate) AND:
1. The State of Karnataka, By J.P. Nagar Police Station, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001.
2. Sri. Ashis Kumar Nath, Major, Flat No. F 301, Ashish JK Apartment, Thubarahalli Extension, Bengaluru – 560 066. ... Respondents (By Sri. Vijayakumar Majage, Addl. SPP for R1;
Sri. N.S. Sanjay Gowda, Advocate for R2 – Absent) This Criminal Petition is filed u/s.482 of Cr.P.C. praying to quash the FIR In Crime No.272/2016 of respondent J.P. Nagar Police Station, Bengaluru pending on the file of 44th ACMM Court, Bengaluru, against the petitioners herein.
This Criminal petition coming on for Hearing, this day, the Court made the following:
O R D E R Heard learned counsel appearing for the petitioners and learned Additional SPP appearing for respondent No.1- State. Counsel for respondent No.2 is absent.
2. The principal contention urged by the learned counsel for the petitioners is that the offences alleged against the petitioners under Sections 504, 506, 323 read with Section 34 of IPC are non-cognizable offences in respect of which the Investigating Officer could not have embarked upon investigation without prior authorization or permission from the learned Magistrate as required under Section 155(2) of Cr.P.C. Hence, the impugned proceedings are vitiated and are liable to be quashed.
3. Refuting the submission, the learned Additional SPP appearing for respondent No.1 submitted that necessary requisition was made to the learned Magistrate and learned Magistrate has accorded permission and hence there is substantial compliance of requirement of Section 155(2) of Cr.P.C.
4. Perused the copy of the requisition made by the Investigating Officer seeking permission under Section 155(2) of Cr.P.C. The learned Magistrate has subscribed his signature on the seal affixed by the office. This order on the face of it indicates that the learned Magistrate without applying his mind to the facts of the case has subscribed his signature on dotted lines.
5. Considering the purport of Section 155 of Cr.P.C. and the purpose and object of prescribing such a pre-requisite in Section 155 (2) of Cr.P.C., this Court in the case of PRAVEEN BASAVANNEPPA SHIVALLI VS. STATE OF KARNATAKA AND OTHERS REPORTED IN 2017(1) AKR 461 has observed as under:
“15. In the present case, 2nd respondent having acted contrary to sub section (1) of Section 155 Cr.P.C. and the learned Magistrate having not passed ‘an order’, instead, having made an entry ‘permitted’, being not ‘an order’ in the eye of law and in view of the prohibition contained in sub-section (2) of S.155 Cr.P.C., the investigation made and the consequential charge- sheet filed for the offences under Ss.504, 506 and 323 of IPC and the taking of cognizance of those offences and the issue of non-bailable warrant in the first instance itself for proceeding further with the case against the accused are absolutely illegal. It is obvious that the police and the Magistrate have not bothered to look into S.155 Cr.P.C. before proceeding further in the matter. Non application of mind and mechanical approach to the case are apparent.”
Since, the learned Magistrate has failed to comply with the mandatory requirements of Section 155 of Cr.P.C., the impugned proceedings are liable to be quashed. Hence, without entering to any further discussions on the other contentions urged by the petitioners, the petition is allowed. FIR in Crime No.272/2016 and the consequent investigation taken up thereon by respondent No.1 is quashed.
It is open to the Investigating Officer to proceed in the matter after complying with the requirements of Section 155(2) of Cr.P.C. in accordance with law, if desired.
Sd/- JUDGE SV