Allowed

Annappa S/O Yallappa Kagi v. State of Karnataka

Karnataka HC4 Feb 2021CRL.RP/2162/2012

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision petition, setting aside the conviction and acquitting the petitioner. The Court held that investigation into a non-cognizable offence under the Karnataka Police Act conducted without Magistrate permission under Section 155(2) Cr.P.C. was illegal, vitiating the entire trial and preventing it from being cured under Section 465 Cr.P.C.

What did the court decide?

Criminal Revision Petition allowed; impugned judgment and sentence set aside; petitioner acquitted; bail bond cancelled; order regarding material objects confirmed.

Annappa S/O Yallappa Kagi Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 4^th DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2162/2012

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BETWEEN:

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ANNAPPA, S/O YALLAPPA KAGI AGE 39 YRS., OCC: AUTO RICKSHAW DRIVER R/O BAGALKOT, DIST.BAGALKOT.

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.. PETITIONER

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(BY SRI. P.N. HOSAMANE, ADVOCATE)

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AND:

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STATE OF KARNATAKA, THROUGH ASI BAGALKOT TOWN POLICE STATION BAGALKOT, REPTD. BY SPP HIGH COURT, DHARWAD. .. RESPONDENT (BY SRI.RAMESH B. CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED IN CRL.A. NO.12/2011 DATED 22.5.2012 BY COURT OF SESSIONS JUDGE

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BAGALKOT, AND PRL.CIVIL JUDGE AND JMFC BAGALKOT IN C.C.548/2010 DATED 31.12.2010 AND ACQUIT THE PETITIONER FOR THE OFFENCE U/S 78(III) OF KP ACT IN THE INTEREST OF JUSTICE. THIS PETITION COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner/accused No.1 has filed this revision petition under Section 397 of the Code Of Criminal Procedure, 1973, challenging the judgment of conviction and sentence dated 31.12.2010 passed by the learned Principal Civil Judge and JMFC, Bagalkot, in C.C No.548/2010(hereinafter referred to as the ‘trial Court’, for brevity) confirmed by the learned Sessions Judge, Bagalkot, in Criminal Appeal No.12/2011 dated 22.5.2012(hereinafter referred to as the ‘first appellate Court’, for brevity) whereby the trial court has convicted the accused for the offence punishable under section 78(iii)of Karnataka Police Act (hereinafter referred to as the ‘KP Act’, for brevity) and sentenced to undergo simple imprisonment for 3 months and to pay fine of

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Rs.300/- in default of payment of fine to undergo simple imprisonment for 15 days.

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Heard the learned counsel for the petitioner and the learned Government Pleader for the respondent-State.

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The rank of the parties before the trial court is retained for convenience.

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The case of the prosecution in nut shell is that on 21.4.2010 at about 11:30 am, PW.2-PSI attached to the Bagalkot Town Police Station received a credible information that the accused was playing Mataka O.C. gambling by collecting money from the public on the assurance that he will pay Rs.80/- for the bet of Rs.1/- for the game. Immediately PW.2 along with PW.1 by securing panch witnesses PWs.3and 4 visited the spot near the Sharada Lodge and apprehended the accused, seized O.C chit, cash of Rs.520/- and a ball pen which are marked as M.Os.1 to 3. FIR was lodged and charge sheet came to be filed.

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The trial court after securing the presence of the accused, accusation was read out to the accused. The accused pleaded not

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guilty and claimed to be tried. The prosecution in order to prove its case, examined 5 witnesses and got marked 3 documents and 3 material objects. The statement of the accused under section 313 of Cr.P.C. was recorded. The case of the accused is one of total denial. He has not entered any defense evidence. The trial Court after hearing the counsel for the parties convicted and sentenced the accused as stated supra.

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Being aggrieved by the judgment of conviction and sentence passed by the trial court, accused preferred an appeal before the first appellate Court in Criminal Appeal No.12/2011. On re-appreciation of the evidence and documents on record, the first appellate Court dismissed the appeal confirming the judgment of conviction and sentence passed by the trial court. Being aggrieved by the judgment and orders of the courts below, the accused has preferred this revision petition

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Learned counsel for the petitioner strenuously contended that the judgment of the trial Court upheld by the first appellate Court is not sustainable in law for the reason that the offence under Section 78 of KP Act is non-cognizable which requires

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permission of the Court or the Magistrate under Section 155(2) of Cr.P.C for conducting investigation and filing charge sheet. But PW.2-PSI has not at all obtained any permission from the Magistrate under Section 155(2) of Cr.P.C. Therefore, the trial itself vitiates as the mandatory provision is not followed by the Investigating Officer. He further contented that PWs.3 and 4 have turned hostile and not supported the case of prosecution. In spite of the same, the trial Court convicted the accused-petitioner only based upon the evidence of PWs.1, 3 and 5 who are the official witnesses. Hence, prayed for allowing the revision petition.

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Per contra, learned High Court Government Pleader supported the judgment of both the Courts below and contended that the accused has not at all raised any objection at the earliest point of time i.e. during the trial regarding the violation of the mandatory provision and non obtaining permission of the Magistrate under Section 155(2) of Cr.P.C for registering the case and conducting the raid. Therefore, once the accused waives the right of taking an objection, now, he cannot take such a contention at this stage. If any error or omission committed by the trial Court

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can be cured under Section 465 Cr.P.C. Therefore, the impugned judgments of the both the Courts below is sustainable. He further contended that the evidence of PWs.1, 2 and 5 cannot be discarded as they are they are the official witnesses. They have done their duty while discharging their official duty. Merely, the independent witnesses have turned hostile, itself is not a ground to reject the entire evidence of the prosecution. Hence, prayed for dismissal of the revision petition.

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Having heard the learned counsel for the petitioner and

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the learned Government Pleader, the only point that arises for consideration is:

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Whether the judgment of conviction and sentence passed by the trial Court and upheld by the first appellate Court call for interference?

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On perusal of the record, it goes to show that the police have filed charge sheet against the accused for the offence under Section 78(iii) of the KP Act. Admittedly, Section 78 of the KP Act is non-cognizable offence. Therefore, it is necessary for the police

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to obtain permission of the Magistrate for conducting raid or conducting investigation.

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For convenience, provision of Section 155(2) of Cr.P.C. is extracted as under:

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“ 155. Information as to non-cognizable cases and investigation of such cases.-

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(1) xxx

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(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.”

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A bare reading of sub-section (2) of Section 155 of

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Cr.P.C. clearly mandates on the part of the police that for the purpose of investigation in a non-cognizable offence, they cannot proceed without an order of the Magistrate, who is having power to try such case or commit the case for trial. On perusal of Ex.P-1panchanama, Ex.P-2 complaint, Ex.P-3-FIR, nowhere it is seen that the police have obtained any permission by the Magistrate from conducting investigation or before raiding and arresting the accused. Ex.P-2-is the suo motu complaint filed by PW-2. In Ex.P1, nowhere he has mentioned that he has obtained permission of

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the Magistrate for conducting investigation. The evidence of PW-5who is ASI also reveals, after registering the case, he has recorded the statement of CWs.4 and 6 and also recorded the statement of PW-1-Police Constable but nowhere he has stated he has obtained permission of the Magistrate for investigating the offence which is non-cognizable. Of course, the learned counsel appearing for the accused has not raised any question that the mandatory provision was not followed by PW-5 before conducting investigation.

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The evidence of PWs.1 and 2 goes to show that they went to the place of occurrence, raided and arrested the accused and seized cash of Rs.520/- and a ball pen O.C. chit which are marked as M.Os.2 and 3. PWs.1 and 2 are the police officials they have given the evidence before the Court. PWs.3 and 4 are the independent witnesses, who have acted as panchas for Ex.P-1, but they have turned hostile and not supported the case of the prosecution. Though the evidence of the official witnesses cannot be thrown out as tainted or interested one, their evidence can be acceptable, if their evidence is reliable and credit worthy. However, in view of non-obtaining permission of the Magistrate for conducting

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investigation, the entire trial vitiates. In this regard, the Coordinate Bench of this Court in Criminal Petition No.100319/2014 and connected matters dated 25.07.2014, quashed the proceedings in almost 43 matters by relying upon the judgment of the Hon’ble Supreme Court in the case of Keshav Lal thakur v. State of Bihar , reported in (1996) 11 SCC 557 wherein the Hon’ble Apex Court reiterated the principle as under:

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“ Representation of the People Act 1950: Sec 31Investigation into, and taking cognizance of, offence under – Legality-being a non-cognizable offence, investigation into offence u/s.31 without an order of a competent Magistrate under Section 155(2) of Cr.P.C. held to be illegal. Hence, the Magistrate could not take cognizance thereof upon the report submitted on completion of such investigation.”

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In the same judgment, the co-ordinate Bench of this Court relying upon the judgment of the Hon’ble Supreme Court reported in H.N. Rishbud and another vs. State of Delhi reported in AIR

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1955 SC 196 has held as under:

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“ In which case, the investigation into the offence was u/s.5 of the Prevention of Corruption Act, was discussed. In that cases the investigation was conducted by a Police Officer without obtaining an order of the Magistrate as required by Sec.5(4) of the said act. The supreme Court held that the provision of requiring an order of the Magistrate to a Police Officer not otherwise authorized to investigate is mandatory

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provision of law, and therefore, the investigation conducted in violation thereof bears the stamp of illegality.”

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Thus, the Co-0rdinate Bench of this Court has categorically held

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that violation of mandatory provision vitiates the entire trial and it cannot be cured under Section 465 of Cr.P.C. Further, this Court relied on the decision of the Hon’ble Supreme Court in the case of

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State of Haryana and others v. Bajanlal and Others reported in AIR

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1992 SC 604 , wherein it was held as under:

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“ The Hon’ble Supreme Court laid down certain principles and guidelines under what circumstances the High Court and the Hon’ble Supreme Court can exercise the power u/s.482 of Cr.P.C. in order to quash the proceedings. Though the Hon’ble Supreme Court has not exhaustively given the guidelines, but at paragraph 108(2) and (4), they clearly indicate that the court can quash the proceedings, the relevant guidelines are enumerated below:

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Where allegations in the FIR and other materials if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by Police Officers justifying an investigation by Police Officers u/s. 156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the code.”

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Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s. 155(2) of the Code.”

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12. In view of the principles laid down by the Hon’ble Apex

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Court and the judgment of this Court , the investigation conducted by PW-5 without seeking permission of the Magistrate under

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Section 155(2) of Cr.P.C. vitiates the entire proceedings and trial. Though both the Courts have not considered this aspect and even the counsel for the accused also not brought to the notice of the Court and the police officials have conducted investigation without taking permission as mandated, definitely, it is the duty of the Court to note and verify whether the offence is cognizable or not and if investigation is conducted without permission, the investigation as well as the trial vitiates. Therefore, conviction against the accused is not sustainable in view of the violation of the mandatory provisions of law. Therefore, the impugned judgment and sentence passed by the trial Court and upheld by the first appellate Court both are liable to be set aside.

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Accordingly, I pass the following order:

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The Criminal Revision Petition is allowed. The judgment of conviction and sentence dated 31.12.2010 past by the learned Principal Civil Judge and JMFC, Bagalkot, in C.C No.548 of 2010 confirmed by the learned Sessions Judge, Bagalkot, in Criminal Appeal No.12 of 2011 dated 22.5.2012 convicting the accused for the offence punishable under section 78(iii)of Karnataka Police Act

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is set aside. The petitioner/accused is acquitted of the charges leveled against him. The bail bond stands cancelled.

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The order of the trial court with respect to M.Os.1 to 3 is

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confirmed.

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Sd/JUDGE

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kmv