IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1687/2019 BETWEEN:
Mr. Vinod Raj @ Raja S/o Bhaskara Shetty Aged 29 years R/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 Rep. by the State Public Prosecutor High Court of Karnataka Bengaluru – 560 001 (Since the First Informant himself is the ASI 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.790/2018 on the file of the Principal Civil Judge and Judicial Magistrate First Class, Sagar (arising out of Court.No.396/2018 of Sagar Town Police Station) for the offence P/U/S 78(3) of the Karnataka Police Act, 1963 as far as the petitioner is concerned and etc.
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.790/2018 (Crime No.396/2018), registered by Sagar Town police station, Shivamogga District for the offence punishable under Sections 78(3) of the Karnataka Police Act, 1963 which proceedings are pending on the file of Principal Civil Judge & JMFC, Sagar.
2. The gist of the prosecution case is;
The Sub Inspector of Police received credible information on 16.11.2018 at about 11.00 a.m., that a person by name Sri Bhaskar was playing matka game near RMC Bypass Road Cross, Sagara Pete, Soraba Road and as such, raided said place along with staff on the same day, that is, on 16.11.2018 at about 12.25 p.m., and seized cash of Rs.460/- along with other materials. After investigation, seized amount of Rs.460/- came to be handed over to one Vinodraj, petitioner herein. For quashing of 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 and 154 of Cr.P.C, investigation has been conducted and FIR came to be registered and later charge sheet has also been filed. Said proceedings cannot be continued as it is illegal and contrary to Section 155(2) of Cr.P.C. He prays for quashing of said proceedings.
5. However, the 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 the submissions of learned counsel appearing for the petitioner inasmuch as material on record does not disclose that permission as prescribed under 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 offence punishable under Section 78(3) of the Karnataka Police Act, 1963 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 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 there from 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 permission so granted would not be a permission in the eye of law and in view of prohibition contained in sub-section (2) of Section 155 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 mandate of Section 155 (2) 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.790/2018 registered by Sagar Town Police Station for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 pending on the file of Principal Civil Judge & JMFC, Sagar, stands quashed and petitioner is acquitted of above said offence.
In view of petition having been allowed, I.A.No.1/19 for stay does not survive for consideration. Hence, it is rejected.
SD/- JUDGE SN