Dismissed

Mr. Uday K.M. v. the State of Karnataka

Karnataka HC16 Aug 2021WP/5601/2020

Case brief

AI extract

What is this about?

Writ petition seeking to quash FIR and complaint under Sections 79, 80 of K.P. Act and Section 34 of Excise Act for gambling and liquor supply defects. Court dismissed petition, holding mixed cognizable/non-cognizable offences constituting a cognizable case under Section 155(4) Cr.P.C., validating FIR registration.

What did the court decide?

Writ petition for quashing Figure of Complaint and FIR is dismissed.

Mr. Uday K.M. Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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WRIT PETITION NO.5601 OF 2020 (GM-RES)

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BETWEEN:

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MR. UDAY K.M. S/O. SHRI. MADAIAH, AGED ABOUT 46 YEARS, NO.4/204, 2^ND FLOOR, VISHAL PALACE, 1^ST CROSS, MALLESHWARAM, BENGALURU – 560 003.

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... PETITIONER

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(BY SRI M.S. SHYAMSUNDAR, ADV.)

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AND:

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THE STATE OF KARNATAKA BY ASHOKNAGAR POLICE STATION, REPRESENTED BY H.C.G.P., HIGH COURT OF KARNATAKA, BENGALURU CITY, BENGALURU – 560 001.

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SHRI NIRANJAN KUMAR AGED ABOUT 45 YEARS, POLICE INSPECTOR, CCB POLICE STATION, BENGALURU CITY, BENGALURU – 560 025.

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... RESPONDENTS

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(BY SRI B.J. ROHITH, H.C.G.P.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C. PRAYING TO QUASH THE COMPLAINT AND F.I.R. IN CRIME NO.79 OF 2020 DATED 3-3-2020 OF ASHOKNAGAR POLICE STATION ARRAIGNING THE PRESENT PETITIONER AS ACCUSED NO.1, PENDING ON THE FILE OF METROPOLITAN MAGISTRATE (TRAFFIC COURT-1) MAYOHALL AT BENGALURU, VIDE ANNEXURES - A AND B.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10-8-2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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This petition is filed by the petitioner-accused No.1 under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, (for short, ‘Cr.P.C.’) for quashing the complaint and F.I.R. in Crime No.79 of 2020 registered by Ashoknagar Police Station, Bengaluru, pending on the file of the Metropolitan Magistrate (Traffic Court-I), Mayohall, Bengaluru.

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Heard the arguments of the learned counsel for

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the petitioner and the learned High Court Government Pleader for respondent Nos.1 and 2.

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The case of the prosecution is that, respondent No.2, Police Inspector, working at C.C.B. Bengaluru received credible information on 3-3-2020 that within the limits of Ashoknagar Police, some of them have engaged in a luck-game called andhar-bahar and gambling illegally at Master’s Association Club situate at No.57, 2^nd Cross, Residency Road, Bengaluru, in 3^rd and 4^th Floor. After obtaining permission of the higher official, respondent No.2 raid the premises, seized cash of Rs.22,34,960/-, two bundles of cards, money counting machine, 45 tokens, 31 liquor bottles of various brands and apprehended 19 persons. Respondent No.2, after seizure of the articles, informed the same to Ashoknagar Police Station and in turn, Ashoknagar Police registered the F.I.R. in Crime No.79 of 2020 for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (for short,

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‘K.P. Act’) and under Section 34 of the Karnataka Excise Act, 1965 (for short, ‘Excise Act’). The petitioner approached this Court challenging the registration of F.I.R. against him.

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Learned counsel for the petitioner has seriously contended that the case was registered against the petitioner for the offences committed at Master’s Association Club situate at No.57, 2^nd Cross, Residency Road, Bengaluru, in 3^rd and 4^th Floor. However, the permission of the Magistrate is obtained by Ashoknagar Police for playing matka near Fathima Lane, Chicken Center and therefore, the information in the F.I.R. is different. He further contended that the offences under Sections 79 and 80 of the K.P. Act are non-cognizable offences and therefore, F.I.R. cannot be registered without obtaining permission of the Magistrate under Section 155(2) of the Cr.P.C. Therefore, search and

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seizure is vitiated. Hence, he prayed for quashing the F.I.R.

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Per contra , the learned High Court Government Pleader for respondent Nos.1 and 2 has contended that respondent No.2 has obtained permission from the I Additional Chief Metropolitan Magistrate on 3-3-2020, which is the jurisdictional Magistrate for C.C.B Police, and after obtaining permission, he has also obtained warrant of search and seizure under Section 81 of the K.P. Act from the Assistant Commissioner of Police, C.C.B., Bengaluru. Hence, respondent No.2 raid the premises and seized the incriminating articles i.e. liquor bottles, cards, cash, etc. and prepared the detail panchanama and forwarded the same to Ashoknagar Police Station to register F.I.R. for both under the K.P. Act as well as under the Excise Act. Further, Section 34 of the Excise Act is cognizable offence. Therefore, the

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Investigating Officer need not take any permission for registering the F.I.R., even though the Police registered the case against the petitioner under the K.P. Act. In support of his contention, he has produced the Case Diary before the Court.

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In reply, the learned counsel for the petitioner has contended that Section 34 of the Excise Act is punishable with four years with fine which may extend to Rs.50,000/-. The offences mentioned in the F.I.R. are cognizable one. In the complaint, the Police have not mentioned the varieties of liquor. Therefore, Section 34 of the Excise Act will not attract.

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Upon hearing the arguments and on perusal of the record, the petitioner is said to be owner of the Master’s Association Club situate at Residency Road, Bengaluru. Though the learned counsel for the petitioner argued that the case is registered against the

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petitioner for the offences committed at Master’s Association Club situate at No.57, 2^nd Cross, Residency Road, Bengaluru, in 3^rd and 4^th Floor, but the permission of the Magistrate is obtained by Ashoknagar Police for playing matka near Fathima Lane, Chicken Center. To this, the learned High Court Government Pleader produced the permission obtained by respondent No.2 from the jurisdictional I Additional Chief Metropolitan Magistrate on 3-3-2020 and after obtaining permission, he has also obtained warrant of search and seizure under Section 81 of the K.P. Act from the Assistant Commissioner of Police, C.C.B., Bengaluru. Assistant Commissioner of Police is also one of the authorised persons for granting permission for search and seizure.

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Respondent No.2 after raiding the premises, conducted panchanama and prepared report and

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forwarded the same to Ashoknagar Police to register the F.I.R. and in turn, Ashoknagar Police registered the complaint, which is in accordance with law. It is pertinent to note that respondent No.2 has seized various liquor brands of 31 bottles, which is more than permissible limit and these liquor bottles shall not be supplied in Club without licence or permission. They have supplied the liquor bottles in the Club, which attracts Section 34 of the Excise Act, which is punishable with four years and fine. Proviso to Section 34 of the Excise Act refers only first offence shall be not less than one year imprisonment and the second and subsequent offences shall be not less than imprisonment for two years and fine. Offence under Section 34 of the Excise Act is cognizable one as per Schedule-II of the Cr.P.C. Since respondent No.2 raid the Club after obtaining permission from the jurisdictional Magistrate and after obtaining warrant of

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search and seizure under Section 81 of the K.P. Act from the Assistant Commissioner of Police, a direction was issued to file Report. Hence, F.I.R. was registered against the petitioner and it was taken up for further investigation. Therefore, once both the cognizable and non-cognizable offences are made out, the question of obtaining permission under Section 155(2) of the Cr.P.C. does not arise in view of Section 155(4) of the Cr.P.C., which is as under:

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“155(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.”

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In view of Section 155(4) of the Cr.P.C., since

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the offence under Section 34 of the Excise Act is cognizable one and the offences under Sections 79 and 80 of the K.P. Act are non-cognizable have no

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consequences. Therefore, the contention raised by the learned counsel for the petitioner for quashing the F.I.R. is not sustainable in law. There is no violation of provisions of Section 155(2) of the Cr.P.C. by the Police Officer, while registering the F.I.R. For the reasons stated above, the petition is liable to be dismissed.

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Accordingly, the petition is dismissed .

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Sd/JUDGE

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kvk

Mr. Uday K.M. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr. Uday K.M. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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