IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL WRIT PETITION NOS.20224-20242/2019 (GM-RES) BETWEEN:
1. VACHAN S/O GANESH SHETTY AGED ABOUT 32 YEARS R/AT NETHRAVATHI HOUSE DHARMASTHALA VILLAGE BELTHANGADY TALUK – 574 216 2. MOHANA S/O LATE SHESHAPPA GOWDA AGED ABOUT 46 YEARS R/AT MUKKUDA HOUSE CHIBIDRE VILLAGE, KAKKINJE BELTHANGADY TALUK – 574 228 3. HARISH RAI S/O ANANDA RAI AGED ABOUT 41 YEARS R/AT SULYAGUTTU HOUSE KENYA VILLAGE AND POST SULYA TALUK – 574 232 4. SUJITH P.V.
S/O VISHWANATH AGED ABOUT 42 YEARS RESIDING OPPOSITE TO ST.PHILOMINA COLLEGE PUTTUR KASABA VILLAGE PUTTUR TALUK – 574 202 4. NONAYYA S/O LOKAYYA MOOLYA AGED ABOUT 45 YEARS R/AT ADARSHA NAGARA JANATHA HOUSE KALMANJA VILLAGE BELTHANGADY TALUK – 574 240 6. JOY S/O LATE H.S.MASCARENHAS AGED ABOUT 49 YEARS R/AT JOY’S COMPOUND UJIRE VILLAGE BELTHANGADY TALUK – 574 240 7. RAZAK S/O R.U.IDDINABBA AGED ABOUT 52 YEARS R/AT YERNODI HOUSE UJIRE VILLAGE BELTHANGADY TALUK – 574 240 8. ASHRAF S/O ISMAIL AGED ABOUT 34 YEARS R/AT KUNTINI HOUSE LAILA VILLAGE BELTHANGADY TALUK – 574 214 9. RAJESH S/O MUTTHAPPA KUMBARA AGED ABOUT 35 YEARS R/AT VIVEKANANDA NAGARA LAILA VILLAGE BELTHANGADY TALUK – 574 214 10. JAYANANDA S/O MAHABALA AGED ABOUT 41 YEARS R/AT YENIRU HOUSE BARAYA KANYADI VILLAGE BELTHANGADY TALUK – 574 240 11. GANESH S/O RADHAKRISHNA NAIK AGED ABOUT 31 YEARS R/AT KALLAKERE HOUSE MELANTHABETTU VILLAGE BELTHANGADY TALUK – 574 214 12. KESHAVA S/O SOMANNA AGED ABOUT 39 YEARS R/AT VIVEKANANDA NAGARA LAILA VILLAGE BELTHANGADY TALUK – 574 214 13. RAJU MESTRI S/O THAMBA MESTRI AGED ABOUT 61 YEARS R/AT NEAR LAILA RAGHAVENDRA MATA LAILA VILLAGE BELTHANGADY TALUK – 574 214 14. RAVI S/O SHEKARA AGED ABOUT 34 YEARS R/AT DAYLATTA HOUSE NIDLE VILLAGE BELTHANGADY TALUK – 574 216 15. KRISHNA PRAKASH S/O LATE VENKATRAMANA BHAT AGED ABOUT 45 YEARS R/AT KILINGAARU HOUSE UJIRE VILLAGE BELTHANGADY TALUK – 574 240 16. RONALD S/O LATE JOSEPH AGED ABOUT 45 YEARS R/AT MATADA GUDDA HOUSE ODILNALA VILLAGE BELTHANGADY TALUK – 574 214 17. APPU S/O LATE MONAPPA NAIK AGED ABOUT 45 YEARS R/AT JOOJI ARALI HOUSE UJIRE VILLAGE BELTHANGADY TALUK – 574 240 18. ASHOKA S/O BABU AGED ABOUT 30 YEARS R/AT PADDANADADKA HOUSE VENUR VILLAGE BELTHANGADY TALUK – 574 242 19. PRASHANTH S/O RAJU AGED ABOUT 30 YEARS MANJIBETTU HOUSE, PADANGADY VILLAGE BELTHANGADY TALUK – 574 217 ...PETITIONERS (BY SRI RAKSHITH KUMAR, ADVOCATE) AND:
1. THE GOVERNMENT OF KARNATAKA HOME DEPARTMENT VIDHANASOUDHA BENGALURU – 560 001 BY IS SECRETARY 2. THE COMMISSIONER OF POLICE PANDESHWAR ROAD MANGALORE D.K.DISTRICT – 575 001 3. THE COMMISSIONER OF POLICE D.C.I.B. BUNDER MANGALORE – 575 001 4. THE CIRCLE INSPECTOR OF POLICE BELTHANGADY CIRCLE BELTHANGADY – 574 214 5. STATION HOUSE OFFICER BELTHANGADY POLICE STATION BELTHANGADY TALUK D.K.DISTRICT – 574 214 ...RESPONDENTS (BY SRI S.RACHAIAH, HCGP) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.3230/2018 PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND JMFC, BELTHANGADY ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Whether continuation of the proceedings in C.C.No.3230/2018 on the file of Principal Civil Judge and J.M.F.C., Belthangady amounts to abuse of process of Court is the question involved in these cases.
2. Belthangady police charge sheeted the petitioners as per Annexure –D in Crime No.182/2018 of their police station for the offences punishable under Sections 78 and 80 of the Karnataka Police Act, 1963 on the basis of complaint/report of CW.1-Nagesh Kadri, Circle Inspector of Police, Belthangady police station as per Annexure-C.
3. CW.1 purportedly submitted requisition Annexure-C dated 28.07.2018 reporting that on 28.07.2018 at 4.00 p.m. Sunil Naik, Police Inspector, DCIB received information that accused are conducting gambling and indulging in gambling in Golden Recreational Club situated in S.R.Bar and Restaurant in Ujirepet, Ujire Village, Belthangady Taluk. In requisition, it is further stated that himself and his staff accompanied Sunil Naik and his staff conducted raid on the said building found the accused indulging in gambling, apprehended them with incriminating material and drew Mahazar for that.
4. It is not forthcoming in the First Information Report Annexure-C whether Station House Officer registered the said complaint and referred the complainant to the Magistrate or after receiving orders from the Magistrate, Station House Officer, registered First Information Report Annexure-C.
5. Offence under Sections 78 and 80 of the Karnataka Police Act, 1963 are punishable with imprisonment upto one year or fine. Therefore, they are non-cognizable offence. Investigation is purportedly conducted by CW.15-Dhanapal Head Constable 2271 of Belthangady police station. Offences being non-cognizable offence, police cannot conduct investigation without following the procedure prescribed under Section 155 of Cr.P.C.
Section 155 of Cr.P.C. reads as follows:
“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.
6. As per charge sheet records, at the relevant time, CW.15 was Station House Officer of respondent police Station. Section 155(1) mandates that on receipt of information of commission of non cognizable offence, in-charge of such police station shall enter the substance of the information in a prescribed book and refer the informant to the Magistrate.
7. Sub section (2) of Section 155 states that no police officer shall investigate non-cognizable cases without the order of the jurisdictional Magistrate.
8. First of all, charge sheet does not indicate that CW.15 referred the informant to the Magistrate. What is required to be referred to the Magistrate under Section 155 of Cr.P.C. is the informant and not the information.
9. As per the requisition Annexure-C filed along with First Information Report, informant was one Sunil Naik, Police Inspector of DCIB. CW.1 Nagesh Kadri, Circle Inspector of Police of Belthangady police station was not the informant. Requisition dated 28.07.2018 was purportedly submitted by CW.1 under Section 155 of Cr.P.C., Magistrate purportedly passed the order on 29.07.2018 as follows:
“Permitted Sd/- 29.07.2018”
Endorsement of Magistrate on FIR states that FIR and complaint were received through HC 2271 of Belthangady Police Station.
10. On the basis of the charge sheet, Magistrate has taken cognizance for the offences punishable under Section 78 and 80 of the Karnataka Police Act, 1963 and issued process to the petitioners to take up trial.
11. Firstly, the requirement to refer the informant to the Magistrate is not complied. Secondly, the order of the Magistrate is not speaking order. This Court in Praveen Basavanneppa Shivalli v. State of Karnataka [2017(1) AKR 461] in paras 15 and 18 as held as follows:
“15. In the present case, 2nd respondent having acted contrary to sub-section (1) of S.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.
18. In the present case, as is clear from Annexure-J itself, the alleged offences being non- cognizable, in view of the safeguard provided under S.155(2), Cr.P.C. the police should have referred the respondent No.3 to the Magistrate.
In the result, the writ petition is allowed and the impugned endorsement, the charge-sheet and the order taking cognizance of the offences vide Annexures-H, J and K respectively are quashed ”
(emphasis supplied) 12. In this case also records do not show that the informant was referred to the Magistrate. Further Magistrate without applying mind instead of passing order made an entry to the effect “permitted”. Therefore, the very origin of initiation of proceedings is unsustainable in law.
13. Under such circumstances, continuation of the proceedings against the petitioners amount to abuse of process of Court. Therefore, the petitions are allowed. The charge sheet Annexure-D and the proceedings in CC No.3230/2018 on the file of Principal Civil Judge & JMFC, Belthangady are hereby quashed. Liberty is reserved to the respondent police to proceed in accordance with law.
Sd/- JUDGE KSR/-