IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION Nos.2835/2019 & 5019-5036/2019 BETWEEN 1. SRI SURESH, S/O. LATE VENKATA REDDY, AGED ABOUT 43 YEARS, R/AT KONAMPALLI VILLAGE, CHINTHAMANI TALUK, CHIKKABALLAPURA-563125.
2. SRI HARIPRASAD S/O. VENKATESHA GOWDA, AGED ABOUT 40 YEARS, R/AT DALASANURU VILLAGE, SRINIVASAPURA TALUK, KOLAR-563 126.
3. SRI SURESH BABU S/O. LATE K. N. MUNIYAPPA, AGED ABOUT 40 YEARS, R/AT 13 WARD, SONNASHETTIHALLI, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
4. SRI RAHUL S/O. JANARDAN, AGED ABOUT 32 YEARS, R/AT GAJANANA CIRCLE, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
5. SRI GOPAL, S/O. LATE RAMAPPA, AGED ABOUT 63 YEARS, R/AT B KOTTHA KOTA, THAMBALAPALLI TALUK, CHITTOOR, ANDHRA PRADESH-517418.
6. SRI MALLESH, S/O. LATE SEENAPPA, AGED ABOUT 31 YEARS, R/AT. SRIRAMANAGARA, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
7. SRI SHAKEEB, S/O. LATE AMEER SAB, AGED ABOUT 48 YEARS, R/AT VENKATAGIRI KOTE, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
8. SRI CHANDRA S/O. LATE DORESWAMY, AGED ABOUT 53 YEARS, R/AT 26TH WARD, NNT ROAD, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
9. SRI RAJANNA, S/O. MUNIYAPPA, AGED ABOUT 41 YEARS, R/AT NNT ROAD, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
10. SRI RADHAKRISHNA S/O. LATE NANJUNDAPPA, AGED ABOUT 55 YEARS, R/AT DALASANURU VILLAGE, SRINIVASAPURA TALUK, KOLAR-563 126.
11. SRI GURRAPPA, S/O. MUNIVEERAPPA, AGED ABOUT 40 YEARS, R/AT KONETI THIMMANAHALLI, VILLAGE, SRINIVASAPURA TALUK, KOLAR-563 126.
12. SRI NAGARAJA S/O P.N.RAJANNA, AGED ABOUT 38 YEARS, R/AT THIMMASANDRA VILLAGE, CHINTHAMANI TALUK, CHIKKABALLAPURA-563159.
13. SRI VENKATESH, S/O. KONDAIAH, AGED ABOUT 39 YEARS, R/AT SONNASHETTAHALLI, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
14. SRI ANANTH S/O. LATE VENKATESHAPPA, AGED ABOUT 29 YEARS, JANNAGATTA VILLAGE, KOLAR TALUK, KOLAR-563 126.
15. SRI. ANJAPPA S/O. LATE MUNIVENKATAPPA, AGED ABOUT 40 YEARS, R/AT MALAPALLI, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
16. SRI SRIRAMAPPA S/O. LATE MUNIYAPPA, AGED ABOUT 65 YEARS, R/AT KOLLURU VILLAGE, SRINIVASAPURA TALUK, KOLAR-563 135.
17. SRI MAHESH, S/O. LATE RAMACHANDRAIAH, AGED ABOUT 50 YEARS, R/AT 24TH WARD, NARASIMHAPETE, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
18. SRI KUMAR, S/O. LATE REDDAPPA, AGED ABOUT 32 YEARS, R/AT GAJANANA CIRCLE, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125.
19. SRI ANANDA REDDY S/O. BAYYANNA, AGED ABOUT 40 YEARS, R/AT NNT ROAD, BEHIND ABBHAGUNDI, CHINTHAMANI TOWN, CHIKKABALLAPURA-563 125. ... PETITIONERS (BY SRI RAJESH SHETTIGAR, ADV.) AND 1. STATE OF KARNATAKA BY CHINTHAMANI TOWN P.S., CHIKKABALLAPURA, REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BANGALORE-560 001.
2. CYBER ECONOMIC AND NAROCOTIC CRIME POLICE STATION, CHIKKABALLAPURA TOWN, CHIKKABALLAPURA-562 101, REPRESENTED BY SUB INSPECTOR 3. SUPERINTENDENT OF POLICE, CHIKKABALLAPURA DISTRICT, CHIKKABALLAPURA-562 101.
4. DEPUTY SUPERINTENDENT OF POLICE CHINTHAMANI TOWN, CHIKKABALLAPURA DISTRICT-562101. ... RESPONDENTS (BY SRI S.CHANDRASHEKARAIAH, HCGP.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA R/W.482 OF CR.P.C, 1973 TO QUASH THE CHARGE SHEET NO.144/2018 DATED 29.11.2018 FILED BY THE R-
1 POLICE PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN) & JMFC, CHINTHAMANI, CHIKKABALLAPURA AS AGAINST THE PETITIONERS FOR OFFENCES PUNISHABLE U/S 15A OF THE KARNATAKA EXCISE ACT, 1965 AND SECTION 79 & 80 OF THE KARNATAKA POLICE ACT, 1963 VIDE ANNEXURE-A ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are before this Court for quashing the proceedings pending in C.C. No.144 of 2018 (Crime No.0251 of 2018), registered by the Chintamani Town police station for the offences punishable under Sections 15(A) of the Karnataka Excise Act, 1965 and 79 & 80 of the Karnataka Police Act, 1963 which proceedings are pending on the file Principal Civil Judge (Sr. Dn) & JMFC Court, Chintamani.
2. The gist of the prosecution case is as follows:- The Sub-Inspector of second respondent police, Chikkaballapura had received a credible information on 21-11-2018 at 11:30 a.m. that at S.L.N Recreation Club, Opposite to R.K. Nursing Home adjacent to Polytechnic Road, Chintamani petitioners were playing cards game of “Andhar Bahar” by indulging in gambling. Police have raided said place along with staff on the same day, that is, on 21-11-2018 at about 3.15 p.m. and found that petitioners were playing game of “Andhar Bahar” and as such alleging it is a game of chance, they seized cash of Rs.1,34,000/- and other materials and apprehended petitioners and registered FIR in Crime No.0251/2018 for the aforesaid offences. For quashing of said proceedings petitioners are before this Court.
3. I have heard the arguments of Sri. Rajesh Shettigar, learned counsel appearing for the petitioners and Sri S. Chandrashekaraiah, learned High Court Govt. Pleader appearing for the State. Perused records.
4. The contention of Sri. Rajesh Shettigar, 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 obtained 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 15(A) of the Karnataka Excise Act, 1965 and 79 & 80 of the Karnataka Police Act, 1963 which undisputedly is a non-cognizable offence. The alleged permission obtained by the respondent in the instant case dated 21.11.2018 (Annexure-D) does not satisfy the mandate of Section 155 (2) of Cr.P.C. 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.
7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr.P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C., or obtained necessary order as envisaged under Section 155(2) of Cr.P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr.P.C.
8. In the light of above discussion, it has to be held that, the endorsement made by learned Magistrate stating ‘permitted’ does not satisfy the requirements of Section 155(2) of Cr.P.C.
Hence, continuation of proceedings would be abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioners will succeed.
Hence, the following:-
ORDER (i) Criminal Petitions are allowed.
(ii) Proceedings pending in C.C.No.144 of 2018 (Crime No.0251 of 2018), on the file of the Principal Civil Judge (Sr. Dn) & JMFC Court, Chintamani, stands quashed and petitioners are acquitted of the offence alleged.
SD/-
JUDGE Chs* CT-HR