IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE Mr. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No. 5420/2019 BETWEEN :
Sri. Nalin Kumar Kateel S/o. Niranjan Aged about 52 years R/a. Ashoka Appartment No. 201, Ashok Nagar Post Mangaluru – 575 006. … PETITIONER (By Sri. Aruna Shyam M, Adv.) AND :
1. The State of Karnataka by Konaje Police Station D.K. Mangaluru Rep. by its State Public Prosecutor High Court of Karnataka Bengaluru – 560 001.
2. Santhosh Kumar Shetty S/o. Vishwanath Shetty Aged about 53 years R/a. President of Ullal Block Congress Committee, Ullal Mangaluru – 575 001 R/a. Kullu Mane Asaigoli Post Konaje Grama Mangalore – 01. … RESPONDENTS (By Sri. Subramanya R., AAG a/w. Smt. K.P. Yashodha, HCGP, for R-1 V/o. dated 27.08.2019 notice to R-2 dispensed with) ---
This Criminal Petition is filed under Section 482 Cr.P.C. with a prayer to quash the entire proceedings in Spl.C.C. No. 726/2019 and etc.
This Criminal Petition coming on for Orders this day, the Court passed the following;
O R D E R After investigating into FIR No. 2/2017 registered on 03.01.2017 in Konaje Police Station, Mangaluru city, police have filed charge sheet against the petitioner alleging commission of offence punishable under Section 506 IPC.
2. Learned advocate for the petitioner has raised three contentions. Firstly, that Section 506 is non- cognizable offence and police could not have investigated into the matter without express permission from the learned Magistrate. The police ought to have recorded the complaint in the NCR register and closed the matter. Secondly that police could not have suo- motu taken up the matter before the learned Magistrate by filing the requisition seeking permission. Thirdly, that the learned Magistrate has merely recorded as `seen. Permitted to investigate’ without recording any reasons.
3. This Court has taken a consistent view that mere recording as `permitted’ is not a speaking order. In support of his contention learned counsel for petitioner has placed reliance on the decision of this Court in Crl.P. No. 7709/2016 (Niloufer Akbar Vs. The State of Karnataka and another) decided on 24.10.2016 wherein the Court at paragraph Nos. 3 and 5 has observed as under:
3. The offences alleged were punishable under Sections 504 and 506 of the IPC. However, since Section 155(1) of he Code of Criminal Procedure 1973 only requires the police to record the complaint in a book prescribed for the purpose and to refer the informant to the court and since the Police have, on the other hand, taken the initiative of carrying out further investigation, which is impermissible, the petitioner is before this court.
4. xxx xxx xxx 5. The learned State Public Prosecutor would not dispute the legal position that the Police by themselves could not have taken the initiative of seeking permission of the court or to investigate the matter alleging a non- cognizable offence.
4. Sri. Subramanya, learned AAG strenuously argued to justify the action of the police.
5. I have carefully considered rival contentions and perused the records.
6. When a complaint alleging commission of non- cognizable offence is filed, police are required to record the complaint in the NCR register and direct the informant to the Magistrate as required under Section 155(1) Cr.P.C.
7. Section 155(2) Cr.P.C. places an embargo on a police officer from investigating into a non-cognizable offence without an order passed by the jurisdictional Magistrate having power to try such case or to commit the case for trial.
8. It is seen that the police suo-motu filed requests before the learned Magistrate seeking permission. This Court in the case of B.M.Suresh Vs. The State of Karnataka and another (Crl.P.No.4974/2016 D.D. 10.08.2016 has held that even where such requests are made by the police learned Magistrate is required to apply his mind and then pass an order. Mere endorsement such as `permitted’ has been held to be no permission in the eye of law in the case referred supra. [See B.M.Suresh Vs. The State of Karnataka and another (Crl.P.No.4974/2016 D.D. 10.08.2016)] 9. In the instant case admittedly the offence alleged is a non-cognizable offence. The police have filed a requisition on 03.01.2017 as per Annexure G annexed to this petition. The learned Magistrate’s order reads as Seen. Permitted to investigate.
10. Following the decision of this Court in the case of B.M. Suresh Vs. the State of Karnataka and another, permission granted by the learned Magistrate is clearly without proper application of mind and therefore unsustainable in law. Resultantly, this petition merits consideration and is accordingly allowed.
11. Proceedings in SPl. C.C. No. 726/2019 arising out of C.C. No. 5111/2018 on the file of JMFC VII Court, Mangaluru, now transferred to LXXXI ACC and S.J. Bengaluru is hereby quashed.
LRS.
Sd/- JUDGE