IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8306 OF 2016 BETWEEN 1. PRADEEPA, S/O. BOREGOWDA, AGE: 27 YEARS, OCC: BUSINESS, R/O HOUSING BOARD, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT: MYSORE-571 107.
2. SOMASHEKARA, S/O. VENKATESHA GOWDA, AGE:32 YEARS, OCC:CLUB WORKER, R/O. MELLAHALLI GATE VILLAGE, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
3. SHIVALINGA, S/O. LATE KRISHNEGOWDA, AGE:54 YEARS, OCC:BUSINESS, R/AT SANNAYANA BEEDI, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
4. R. T. VENKATESHA NAYAKA, S/O. LATE R. N. TAMMAIAH, AGE:43 YEARS, OCC:AGRICULTURIST, R/O. SATTAYANAKOPPALU VILLAGE, RAVANDURU HOBLI, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
5. SIDDALINGA, S/O. SIVARAJU, AGE:43 YEARS, OCC:BUSINESS, R/O. NEHRU BEEDI, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
6. YOGESHA.K.S, S/O. SWAMIGOWDA, AGE:27 YEARS, OCC:AGRICULTURIST, R/O. KANDEGALA VILLAGE, RAVANDURU HOBLI, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
7. SUBRAMANYA, S/O. VAIRAMUDI, AGE:52 YEARS, OCC:BUSINESS, R/O. BESTARAGERI BEEDI, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
8. SULEMAN @ MUNNA, S/O. BABAJAN, AGE:44 YEARS, OCC:BUSINESS, R/O. BYPASS ROAD, KUSHALNAGAR TOWN, SOMWARPET TALUK, DISTRICT:MADIKERI-571 234.
9. MUBHARAKH, S/O. NOOR AHAMED, AGE:45 YEARS, OCC:AUTO DRIVER, R/O. MEDARA BLOCK, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
10. KRISHNEGOWDA, S/O. APPANNA, AGE: 55 YEARS, OCC:BUSINESS, R/AT SANNAYANA BEEDI, PERIYAPATNA TOWN, PERIYAPATNA TALUK, DISTRICT:MYSORE-571 107.
(BY SRI. K.V.THIMMAIAH, ADV.,) AND 1. THE STATE OF KARNATAKA, BY THE POLICE OF, PERIYAPATNA POLICE STATION, MYSORE DISTRICT.
... PETITIONERS REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001.
2. MUDDU MAHADEVA, POLICE SUB-INSPECTOR, PERIYAPATNA POLICE STATION, MYSORE DISTRICT-571 107 ... RESPONDENTS (BY SRI. I.S. PRAMOD CHANDRA, SPP-II) THIS CRL.P IS FILED U/S.482 OF CR.P.C., PRAYING TO QUASH THE COMPLAINT AND FIR DATED 27.06.2016 REGISTERED BY PERIYAPATNA P.S., MYSORE DISTRICT, IN CRIME NO.131/2016 AS AGAINST THE PETITIONERS FOR THE OFFENCES P/U/Ss 79, 80 OF KARNATAKA POLICE ACT, NOW PENDING ON THE FILE OF ADDL. CIVIL JUDGE (Jr.Dn) AND JMFC, PERIYAPATNA.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R With the consent of the learned counsel for the petitioners and the learned SPP-II for respondent No.1, the matter is taken up for final disposal.
2. In this petition, the petitioners have sought to quash the FIR registered against them in Crime No.131/2016 by the Periyapatna Police, Mysuru District, pending on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Periyapatna, Mysore, for the alleged offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (‘the K.P. Act’, for short ) on the ground of non-compliance of the mandatory requirements prescribed under Section 155(2) of the Code of Criminal Procedure.
3. The main contention urged in this petition is that, the offence alleged against the petitioners is a non-cognizable offence and by virtue of the safeguard provided under Section 155(2) of Cr.P.C., the respondent – Police could not have embarked upon investigation into the alleged offence, without the order of a Magistrate having power to try such case. In Support of this contention, the learned counsel has referred to the decision of this Court in the case of Nabisab S/o Shek Imamsab V/s State of Karnataka (Crl.P.3365/2016 and connected matters disposed on 07.04.2017) as well as various other decisions rendered by this Court and submitted that the non-compliance of the mandatory requirements under Section 155(2) of Cr.P.C. would render the proceedings illegal and invalid.
4. Further, the Hon’ble Supreme Court of India has dismissed S.L.P.Nos.8567-8580/2016 arising out of the common order passed by this Court in Crl.P.No.100319/2014, thereby confirming the orders passed by this Court in Crl.P.No.100319/2014.
5. In Crl.P.No.3365/2016 and connected matters, this Court followed the decision rendered by the Co-ordinate Bench of this Court in Moin Basha Kurnooli Vs. The State of Karnataka by Cowl Bazaar Police Station, Bellary, reported in 2014(4) KCCR 3355, wherein on analysing the relevant provisions of the Code of Criminal Procedure and the Karnataka Police Act, 1963, it is held that the offence under Sections 79 and 80 of the KP Act is a non-cognizable offence, the investigation whereof by a Police Officer is prohibited without prior order of the concerned Magistrate. Further this Court has laid down that the provisions of Section 155(2) of Cr.P.C. is mandatory in nature and failure to comply with the said mandatory requirement is an incurable defect amounting to illegality vitiating the entire proceedings.
6. In Praveen Basavanneppa Shivalli Vs.
State of Karnataka and Others reported in 2017(1) AKR 461, this Court has laid down 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. Undisputedly, in the case on hand, the FIR came to be registered against the petitioners on the basis of the complaint lodged by the concerned Inspector of the Periyapatna Police Station alleging that on receipt of credible information that the accused herein were involved in playing a game of chance by name ‘Andar- Bahar’. The PSI of the concerned Police Station made an application to the concerned Magistrate seeking permission to investigate into the matter and thereafter rushed to the spot along with his team and the panchas and found the accused engaged in the alleged activities, and accordingly, panchanama was drawn at the spot and incriminating materials were seized from the spot of occurrence and FIR was registered against the petitioners alleging commission of offence punishable under Sections 79 and 80 of KP Act.
8. Undeniably, the offence alleged in the case on hand is a non-cognizable offence. Section 155 of the Cr.P.C. deals with the procedure of Investigation and cognizance of non-cognizable cases. It reads as under:
“Section 155 Information as to non-cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.”
9. As per the above provision, when an Officer-in-charge of the Police Station received the information as to the commission of non-cognizable offence, (i) he shall enter or cause to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
10. Respondent Police have utterly failed to comply with the requirements laid down in Section 155(1) and 155(2) of Cr.P.C. Reading of the complaint lodged in this case indicates that on receipt of information, the complainant informed the matter to his superior Officer and thereafter made separate application to the concerned Magistrate seeking necessary order for investigation into the allegations. But before securing the necessary “order”, the complainant rushed to the spot and commenced investigation even without registration of the FIR as mandated under Section 154 of Cr.P.C. There is nothing on record to show that the respondent has 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 respondent is seen to have committed blatant violation of the provisions of Sections 155 (1) and 155(2) of Cr.P.C.
11. The learned HCGP appearing for the State, however, has tried to take shelter under the endorsement obtained by the respondent – Police on the application wherein, the learned Magistrate is seen to have made an endorsement as “permitted”. It is argued that this is substantial compliance of the requirements laid down under Section 155 of Cr.P.C.
12. I am unable to accept the contention urged by the learned HCGP. Such a contention has already been considered by this Court in the case of Praveen B. Shivalli (supra). Even in the said case, endorsement was made by the learned Magistrate on the application submitted by the Police as “permitted”. Considering the purport of the above provision and the purpose and object of prescribing such a pre-requisite, this Court in para 15 of the aforesaid judgment 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
13. In view of the above factual and legal defects which amount to incurable illegalities and blatant violation of the mandatory requirements of law, the impugned proceedings is liable to be quashed.
14. Accordingly, the Petition is allowed and the proceedings initiated against the petitioners in Crime No.131/2016 by the Periyapatna Police, Mysuru District, pending on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Periyapatna, Mysore, are quashed.
Np/-
Sd/- JUDGE