IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1685/2019 BETWEEN:
MR. VINOD RAJ @ RAJA S/O BHASKARA SHETTY AGED 28 YEARS RESIDING AT S.N. NAGARA SAGARA TOWN SHIVAMOGGA - 577 201.
(BY SRI. P.P. HEGDE., ADVOCATE) AND:
THE STATE OF KARNATAKA THROUGH THE POLICE SUB INSPECTOR, SAGAR TOWN POLICE STATION SAGAR, SHIVAMOGGA DISTRICT- REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENGALURU – 560 001 (SINCE THE FIRST INFORMANT HIMSELF IS THE A.S.I. OF SAGAR TOWN PS., HE IS NOT SEPARATELY ARRAYED AS ADDITIONAL RESPONDENT) (BY SRI. S. RACHAIAH., HCGP) ... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION .482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.782/2018 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., SAGAR (ARISING OUT OF CR.NO.342/2018 OF SAGAR TOWN POLICE STATION) FOR THE OFFENCE P/U/S 78(3) OF THE 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 before this Court for quashing of the proceedings pending in C.C. No.782/2018 (Crime No.342/2018), registered by Sagar Town police station, for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 which proceedings are pending on the file of Principal Civil Judge and Judicial Magistrate First Class, Sagar.
2. The gist of the prosecution case is:
The Sub Inspector of Police received credible information on 10.10.2018 at about 5.00 p.m., that some persons were playing matka near Shriniddhi Wine Shop, Soraba Road, Sagar Town and police are said to have conducted a raid at said place along with staff on the same day, that is, on 10.10.2018 at about 6.45 p.m., and found that petitioner was playing Matka and seized cash of Rs.2,700/- and other material and apprehended the petitioner. For quashing of the said proceedings petitioner is before this Court.
3. Heard Sri. P P Hegde, learned Advocate appearing for petitioner and Sri. S. Rachaiah, learned HCGP appearing for respondent. Perused the records.
4. Learned Advocate appearing for petitioner contends that offence alleged against petitioner is non-cognizable and without obtaining permission from the jurisdictional Magistrate as required under Section 155(2) of Cr.P.C, investigation had been taken up and as such proceedings cannot be continued as it is illegal. Hence, he prays for quashing of said proceedings.
5. However, learned High Court Government Pleader appearing for the respondent-State would defend the initiation of prosecution against petitioner and prays for dismissal of the petition contending permission from Magistrate had been obtained.
6. Having heard the learned Advocates appearing for the parties and on perusal of records, it would not detain this Court for too long to accept submission of learned counsel appearing for petitioners, inasmuch as material on record does not disclose that permission as prescribed under Sub- Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent before registering the FIR in question against the petitioner for the offences punishable under Sections 78(3) of the Karnataka Police Act which undisputedly is a non-cognizable offence.
7. This Court after adverting the earlier decisions has held in W.P.No.42073-42075/2018 (GM-RES) (THE PADUBIDRI MEMBERS LOUNGE AND OTHERS V/S DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE AND OTHERS) disposed of on 03.10.2018 held that endorsement made by the learned Magistrate stating “Permitting”, does not satisfy the requirement of Section 155(2) Cr.P.C. In the light of aforestated decision and granting ‘Permission’ would result in several consequences flowing therefrom and as such judicious application of mind would be the essential criteria before according such permission by learned Magistrate. In other words, subjective satisfaction and objective assessment of the material that would be placed by the Police is hall mark for granting permission, which is required under Section 155 Cr.P.C as otherwise it would not be a permission in the eye of law and it would against mandate of Section 155(2) 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 and as such, petitioner is entitled to the relief sought for.
8. Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed.
(2) Proceedings pending against petitioner in CC No.782/2018 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 & JMFC, Sagar stands quashed and petitioner is acquitted of said offence.
In view of petition having been allowed, I.A.No.1/18 for stay does not survive for consideration. Hence, it is rejected.
SD/- JUDGE *sp