IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1202/2019 BETWEEN:
MR. VINOD RAJ @ RAJA S/O BHASKARA SHETTY AGED 39 YEARS RESIDING AT S.N. NAGARA NEAR HOSABADAVANE SAGARA TOWN SHIVAMOGGA – 577 401. ... PETITIONER (BY SRI. P.P. HEGDE., ADVOCATE) AND:
THE STATE OF KARNATAKA THROUGH THE POLICE SUB INSPECTOR, SAGAR TOWN POLCIE STATION, SAGAR SHIVAMOGGA DISTRICT REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR IN CRIME NO.355/2018 OF SAGARA TOWN POLICE STATION AND ALL FURTHER PROCEEDINGS, PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., SAGAR FOR THE OFFENCE P/U/S 78(3) OF KARNATAKA POLICE ACT, AS FAR AS THE PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is accused No.2 in Crime No.355/2018 registered by Sagar Police Station for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 is before this Court for quashing of said proceedings.
2. Jurisdictional police on suo motu complaint, registered a case in the above referred crime number since it was alleged that certain persons were playing gambling/matka and on obtaining permission from the learned Magistrate along with panch witnesses, conducted a raid at a place near Industrial Area, Vinayaka Canteen, Beeda Shop, opposite to Sagar Town and apprehended one Mr.Vinod Raj and seized an amount of Rs.730/- and on interrogation, it was revealed by him that said amount was to be handed over to petitioner (accused No.2) and hence, FIR came to be registered.
3. It is the contention of Sri P.P.Hegde, learned Advocate appearing for petitioner that registration of FIR is violative of mandatory requirement of Section 155 Cr.P.C. and petitioner has been falsely implicated on account of political rivalry. Hence, he has sought for quashing of proceedings.
4. Learned HCGP appearing for respondent submits that Section 78(3) of the Karnataka Police Act is a non-cognizable offence and as such, jurisdictional police have forwarded requisition to the jurisdictional Magistrate for according permission to register the FIR and conduct investigation including conducting of the raid. Learned HCGP who has made available the original records while supporting the prosecution initiated against petitioner and has relied upon the permission granted by the jurisdictional Magistrate on 16.10.2018. A perusal of the same would disclose that in a routine manner, permission has been granted that too by affixture of seal with the expression “permitted”.
5. This Court, adverting to the earlier decisions has held in W.P.Nos..42073-42075/2018 (GM-RES) (THE PADUBIDRI MEMBERS LOUNGE AND OTHERS vs. DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE AND OTHERS) disposed of on 03.10.2018 that endorsement/entry made by the learned Magistrate to the effect “Permitted” does not satisfy the requirement of Section 155(2) Cr.P.C. In the instant case, the additional word as noticed hereinabove namely, ‘Seen’ has been endorsed while according the permission. This would not be the mode and method in which the permission can be granted. In the light of aforestated decisions and granting ‘Permission’ would result in several consequences flowing there from and as such judicious application of mind would be the essential criteria before according such permission. In other words, subjective satisfaction and objective assessment of the material that would be placed by the Police is hallmark for granting permission by learned Magistrate, which is required under Section 155 Cr.P.C as otherwise permission so granted would not be permission in the eye of law and in view of prohibition contained in sub-section (2) of Section 155 of Cr.P.C. In the instant case, such an exercise has not been undertaken and continuation of proceedings against petitioner would not be just and proper as it would be contrary to statutory provision i.e., Section 155(2) of Cr.P.C. and as such, petitioner is entitled to the relief sought for.
6. One another observation which requires to be noticed is initially petitioner was not arraigned as an accused, but on the basis of purported statement made by accused No.1 being recorded while in the custody of the police, petitioner has been implicated as accused No.2. For this reason also, proceedings against petitioner cannot be continued, since the charge sheet material even if unrebutted would not end in conviction of petitioner and as such continuation of proceedings against petitioner would only be abuse of process of law.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioner in Crime No.355/2018 registered by Sagar Town Police Station, for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963, on the file of Principal Civil Judge and JMFC, Sagar, is quashed and petitioner is acquitted of the said offence.
*sp SD/- JUDGE