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.8346/2014 BETWEEN:
T.V-9, Karnataka Pvt. Ltd., No.13/1, Rhenius Street, Richmond Town, Rep. by Sri. Prakash V., Manager / Administration, Aged about 34 years, S/o. Late N. Venkoba Rao, Bengaluru – 560 025. ... Petitioner (By Sri. C.V. Nagesh, Senior Counsel a/w Sri. Raghavendra K., Advocate) AND:
1. State of Karnataka, By the Station House Officer, Devarajeevanahalli Police Station, Bengaluru – 560 032.
2. Sri. S.R. Prakash, Aged about 50 years, S/o. S.R. Ramachandra Rao, No.8, 8th Cross, Adarshanagar, R.T.Nagar, Bengaluru – 560 032. ... Respondents (By Sri. Vijaya Kumar Majage, Addl. SPP for R1;
Sri. C.R. Raghavendra Reddy, Adv. for R2 – absent) This Criminal Petition is filed u/s.482 of Cr.P.C. praying to quash the FIR in Crime No.422/2014 dated 19.12.2014 filed by Devarajeevanahalli Police Station pending before Court of the Addl. Sessions Judge (CCH No.51), Bengaluru for an offence punishable under Section 23(2) of the Protection of Children from Sexual Offences Act, 2012 in the case.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned Senior counsel for the petitioner and learned Addl. SPP for respondent No.1-State. Counsel for respondent No.2 is absent.
2. The only contention urged by the learned Senior Counsel for the petitioner is that the offence alleged against the petitioner under Section 23(2) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’, for short), is a non- cognizable offence. The said offence is punishable with imprisonment for 1 year or fine or both. Therefore, the respondent could not have embarked upon investigation without prior authorization under Section 155(2) of Cr.P.C.
and hence, the impugned proceedings are liable to be quashed.
3. The learned Addl. SPP appearing for respondent No.1 argued in support of the impugned action contending that necessary application was made to the learned Magistrate seeking permission, after registration of the FIR, but he fairly conceded that the learned Magistrate has not passed any order granting permission to the Investigating Officer to proceed under Section 155(2) of Cr.P.C.
4. Considered the submissions and perused the records.
5. The POCSO Act does not specify as to whether the offence under Section 23(2) is a cognizable or a non- cognizable offence. However, having regard to the punishment prescribed under the Act for the said offence by applying Schedule – II of Cr.P.C., the offence has to be treated as a non-cognizable offence. Under the said circumstances, in view of the specific bar contained under Section 155(2) of Cr.P.C. no police officer could investigate into the alleged offence without the order of the learned Magistrate having power to try the said case or commit the case for trial. As it is an admitted fact that no such prior permission or authorization was obtained by the Investigating Officer, the registration of the FIR and consequent investigation thereon, is bad in law and consequently the entire proceedings are liable to be quashed.
Accordingly, the petition is allowed. FIR in Crime No.422/2014 and the consequent investigation taken thereon is hereby quashed. Liberty is reserved for the complainant/respondent No.2 to proceed on the same cause of action by complying with the procedure prescribed under Section 155 (2) of Cr.P.C. in accordance with law.
Sd/- JUDGE SV