Allowed

Ganesh Shetty v. the State of Karnataka

Karnataka HC27 Jun 2022CRL.P/227/2022

Case brief

AI extract

What is this about?

Proceedings for non-cognizable offences under Sections 79 and 80 of the Karnataka Police Act were challenged for defective permission to investigate. The Court held that the Magistrate’s signed endorsement did not satisfy Section 155(2) Cr.P.C., allowed the petition and quashed the proceedings.

What did the court decide?

Proceedings in C.C.No.6236/2018 pending before the J.M.F.C., III Court at Mangaluru City quashed.

Ganesh Shetty Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 27^TH DAY OF JUNE, 2022

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

¶6

CRIMINAL PETITION No.227 OF 2022

¶7

BETWEEN

¶8

GANESH SHETTY

¶9

S/O B THYAMPANNA AGED ABOUT 37 YEARS

¶10

R/AT LAXMI NIVASA D.NO.7-10-1050

¶11

BOLURU

¶12

MANGALURU CITY-575 003

¶13

RAVI

¶14

S/O APPU AGED ABOUT 40 YEARS R/AT DABBELI HOUSE AREKALA POST, KONAJE

¶15

MANGALURU CITY-574199

¶16

KEVIN D SOUZA

¶17

S/O EDWARD D SOUZA AGED ABOUT 33 YEARS

¶18

R/AT EVERSHEN VILLA

¶19

1ST CROSS, SHANTHINAGAR JAPPU, MANGALURU-575002

¶20

4. CHENNAKESHAV

¶21

S/O DEVENDRA AGED ABOUT 35 YEARS R/AT NEAR MALARAYA TEMPLE URWA CHUILIMBI MANGALORE CITY-575006

¶22

¶23

SUMAN SHETTY

¶24

S/O SATHISH SHETTY AGED ABOUT 21 YEARS R/AT NADIBETTU HOUSE HIRGANA KARKALA UDUPI-576117

¶25

NAVEEN DCUNHA S/O SILVESTER DCUNHA AGED ABOUT 47 YEARS SILVERTER VILLA R/AT KOTTARA CROSS KAPIKAD, BEJAI MANGALORE CITY-575004

¶26

ASHWATH POOJARY

¶27

S/O NARAYANA AGED ABOUT 30 YEARS R/AT SEETHARAM COMPOUND YAYYADI, GUNDALIKE, BEJAI MANGALORE CITY-575016

¶28

BALAKRISHNA KULAI S/O KUNHAPPA BANGER AGED ABOUT 34 YEARS

¶29

R/AT NEAR MUDUSHEDDE SCHOOL VAMANJURU MANGALORE CITY-575028

¶30

ANIL RAJ S/O MAROLI KRISHNA BHANDARY AGED ABOUT 32 YEARS R/AT SUGANDHI COMPOUND SHALEPADAVU VAMANJURU MANGALORE CITY-575028

¶31

¶32

PUSHPARAJ BALLAL S/O RAGHURAM BALLAL AGED ABOUT 45 YEARS R/AT D.NO.1-116 HOLEBADI HOUSE, ADYAR

¶33

MANGALORE CITY-575029

¶34

ABDUL RAVOOF AGED ABOUT 39 YEARS S/O ABDUL HAKEEM R/AT CHEMBUDGUDDE AMRINA MARZIL ULLALA

¶35

MANGALORE CITY-575017

¶36

PRADEEP SHETTY AGED ABOUT 44 YEARS S/O LATE NARAYANA SHETTY R/AT B S RAI COMPOUND ALAKE

¶37

MANGALORE CITY

¶38

HARISH SHETTY AGED ABOUT 33 YEARS S/O SANJEEV SHETTY R/AT SUBHASH NAGARA 1ST CROSS, PANDESHWAR MANGALORE CITY-575001

¶39

VIJAY

¶40

S/O ANANDA AGED ABOUT 36 YEARS R/AT SUJEER PUDU VILLAGE BANTWALA DAKSHINA KANNADA-574143

¶41

¶42

BHASKARA SHETTY S/O VITTAL SHETTY AGED ABOUT 32 YEARS R/AT IRAVTTHURU VILLAGE MATA MANE BANTWALA DAKSHINA KANNADA-574253

¶43

DINESH KUNDAR S/O SHESHA KUNDA AGED ABOUT 51 YEARS R/AT KELAGINAKERE MANE ADYA,

¶44

MANGALORE CITY-575029

¶45

MOHANDAS SHETTY S/O DAYANANDA AGED ABOUT 27 YEARS

¶46

R/AT SOMPA SHETTY COMPOUND HOIGEBAIL, ASHOKNAGARA

¶47

MANGALORE CITY-575006

¶48

MOHAMMED ANEEF

¶49

S/O HASANABBA AGED ABOUT 29 YEARS R/AT SHAKTHINAGRA HOUSE KUVVETTU VILLAGE BELTHANGADY-574224

¶50

SHIVAPRASAD

¶51

S/O LAKSHMANA ANCHAN AGED ABOUT 34 YEARS, R/AT KANKANADY PAKKALADKA, BAJAL

¶52

MANGALORE CITY-575001

¶53

¶54

20. YOGISH

¶55

S/O PARAMESHWARA AGED ABOUT 45 YEARS R/AT SANTHOSH NILAYA KALBAVI ROAD, ASHOKANAGARA KOTTAA, MANGALORE CITY-575006

¶56

MANEESH

¶57

S/O THUKARAM AGED ABOUT 22 YEARS R/AT NEAR DOSTH CLUB BOKKAPATNA,

¶58

MANGALORE CITY-575003

¶59

RAMANA POOJARY S/O SANKAPPA POOJARY AGED ABOUT 34 YEARS

¶60

R/AT NEAR KADESHIWALAYA TEMPLE KADESHIVALAYA POST BANTWAL

¶61

DK-574325

¶62

NIKHIL DEVADIGA

¶63

S/O PRABHAKAR AGED ABOUT 22 YEARS R/AT SHIVANNA COMPOUND MATTADA KHINI

¶64

BOLURU, MANGALORE CITY

¶65

24. HARISH ANCHAN

¶66

S/O BABU POOJARY AGED ABOUT 29 YEARS R/AT SUBHASH NAGARA SAJIPA MOODA, BANTWAL D.K-574211

¶67

¶68

25. PRAKASH

¶69

S/O SHRINIVAS AGED ABOUT 31 YEARS R/AT SIDDAKATTE BANTWALA

¶70

D.K-574237

¶71

26. PRAVAN

¶72

S/O SEETHARAM

¶73

AGED ABOUT 26 YEARS

¶74

R/AT BESIDE MUDUSHEDDE SCHOOL VAMANJURU MANGALORE CITY-575028

¶75

27. VISHAL SHETTY

¶76

S/O VISHWANATH SHETTY AGED ABOUT 30 YEARS R/AT SHRI SATHYA NILAYA NEAR RAILWAY STATION THOKKOTTU

¶77

MANGALORE CITY-575017

¶78

28. NAGARAJ

¶79

S/O PAKEERAPPA AGED ABOUT 28 YEARS

¶80

R/AT NEAR NATIONAL FURNITURE

¶81

KANKANADY

¶82

MANGALORE CITY-575002

¶83

PRASHANTH KUMAR

¶84

S/O CHANDRASHEKAR

¶85

AGED ABOUT 29 YEARS

¶86

NO.5-III/1, SANJIVA PAI COMPOUND R/AT NEAR MAHAGANAPATHI BHAJANA MANDIRA

¶87

KODIKAL

¶88

ASHOKANAGARA

¶89

MANGALORE CITY-575006

¶90

¶91

SATHEESH S/O PADMANABHA AGED ABOUT 28 YEARS R/AT PACCHANADY PADANGADY MANGALORE CITY-575008

¶92

31. RAJESH SHETTY

¶93

S/O MAHABALA SHETTY AGED ABOUT 48 YEAS R/AT ANUGRAHA NIVASA B.L COMPOUND

¶94

JEPPU

¶95

MANGALOE CITY-575002

¶96

32. NOUFAL

¶97

S/O ILYAS AGED ABOUT 43 YEARS R/AT ILTAF HOUSE SAAG, HALEYANGADY MULKY

¶98

MANGALORE CITY-574154

¶99

33. FAROOQ

¶100

S/O ABDUL KHADER AGED ABOUT 43 YEARS R/AT SEVANTHIGUDDE PERMANNURU MANGALORE CITY-575017

¶101

34. SATHEESH

¶102

S/O NARAYANA SHETTY AGED ABOUT 34 YEARS R/AT RAM BHAG HOUSE PAJEER POST BANTWAL-574199

¶103

¶104

FIROJ ABDUL KHADER S/O ISMAIL AGED ABOUT 36 YEARS R/AT LOWER CAR STREET BHATKALA BAZAAR BUNDER, MANGALORE CITY-575001

¶105

36. ARIF

¶106

S/O HASANABBA AGED ABOUT 29 YEARS R/AT PANCHAYATH GUDDE HOUSE JOKATTE, MANGALORE CITY-575 030

¶107

ASHRAF S/O ISMAIL AGED ABOUT 48 YEARS R/AT ARAKEE HOUSE JOKATTE, MANGALORE CITY-575030

¶108

JAGADEESH NAYAK S/O NEELAYYA NAYAK AGED ABUT 51 YEARS R/AT PINTO COMPOUND BOLARA, MANGALORE CITY-575008

¶109

MOHAMMED IQBAL S/O SHEKABBA AGED ABOUT 42 YEARS R/AT 1-169, MARGATHE ULIYA THOKKOTTU ULLALA MANGALORE CITY-575017

¶110

¶111

40. CHIDANANDA

¶112

S/O ANANDA SHETTY AGED ABOUT 30 YEARS R/AT NANDANAPURA AKASHABAVANA

¶113

MANGALORE CITY-575015

¶114

41. RITHESH

¶115

S/O KRISHNA POOJARY AGED ABOUT 28 YEARS R/AT SHRI DEVI NILAYA KANGURI HOUSE, MULKY MANGALORE CITY-574154

¶116

SUBRAMANYA

¶117

S/O GOVINDARAJ AGED ABOUT 43 YEARS R/AT PERINJA BAJAL

¶118

MANGALORE CITY-575007

¶119

43. SULEMAN

¶120

S/O ABBAS AGED ABOUT 43 YEARS

¶121

R/AT NEAR KUNIL SCHOOL DERALAKATTE

¶122

MANGALORE CITY-575022

¶123

44. AKSHAY SHETTY

¶124

S/O GANESH SHETTY AGED ABOUT 21 YEARS R/AT PADAVU VILLAGE BIKERNAKATTE KULSHEKAR MANGALORE CITY-575005

¶125

¶126

SARFARAJ S/O BASHEER AGED ABOUT 29 YEARS R/AT MAALIKDINAR MASJID TALANGA KASARGOD KERALA-671122

¶127

46. SHAREEF

¶128

S/O EMNURUSAB AGED ABOUT 27 YEARS R/AT ARAGAPPA VILLAGE BADAM

¶129

VIJAYAPUR-586101

¶130

SHIVANANDA S/O BHAGAPPA AGED ABOUT 42 YEARS R/AT KANAVALLI SINDHAGI

¶131

BAGALKOT-587102

¶132

VIJITH FERNANDIES S/O MARSHAL FERNANDIES AGED ABOUT 22 YEARS R/AT UPPALLI VILLAGE CHIKKAMANGALORE-577101

¶133

VASANTH KUMAR S/O NANJAPPA AGED ABOUT 33 YEARS R/AT ADARSHANAGARA 3RD BLOCK JAYALAKSHMI NILAYA CHANNARAYAPATTANA HASSAN-573116

¶134

¶135

MOHAMMED SIRAJ S/O IBRAHIM AGED ABOUT 23 YEARS R/AT U K. APARTMENT UPPALA KASARGOD KERALA-671322 51. PRAVEEN S/O RAVINDRA AGED ABOUT 44 YEARS R/AT ULITHADKA NEAR MADOOR KOODLU, KASARGOD KERALA-671121 52. PRAVEEN KUMAR S/O KRISHNA AGED ABOUT 47 YEARS R/AT NEAR KALAKUNJA KODIALBAIL MANGALORE CITY-575003 ... PETITIONERS

¶136

[BY SRI. ASIF BAIKADY, ADV.]

¶137

AND

¶138

THE STATE OF KARNATAKA BY URVA POLICE STATION DAKSHINA KANNADA REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU

¶139

... RESPONDENT

¶140

[BY SMT. K.P YASHODHA, HCGP]

¶141

¶142

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE FIR AND CHARGE SHEET REGISTERED BY THE RESPONDENT POLICE AGAINST THE PETITIONER HEREIN IN CR.NO.103/2018 (C.C.NO.6236/2018) FOR THE OFFENCE P/U/S 79 AND 80 OF KARNATAKA POLICE ACT, WHICH IS PENDING ON THE FILE OF THE HONBLE III J.M.F.C. COURT AT MANGALURU CITY D.K.

¶143

THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

¶144

ORDER

¶145

The petitioners are before this Court calling in question the proceedings in C.C.No.6236/2018 arising out of Crime No.103/2018 registered for offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963.

¶146

The Police after investigation claim to have filed the charge sheet as well. The offences so alleged against the petitioners are the ones punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (for short ‘the Act’). Sections 79 and 80 of the Act are admittedly non-cognizable offences. For a

¶147

¶148

non-cognizable offence, under Section 155(2) of the Cr.P.C., it is mandatory on the part of the informant to approach the learned Magistrate take his nod and then register FIR and conduct investigation.

¶149

In the case at hand, the requisition is

¶150

furnished by the informant to the learned Magistrate and the learned Magistrate on the said requisition, affixes a signature, which according to the learned HCGP is that it is permission that is granted under Section 155(2) of the Cr.P.C., which reads as follows:

¶151

" ¤ªÉÃzÀ£É,

¶152

ªÀiÁ£Àå eÉ.JA.J¥sï.¹ 3 £ÉÃ £ÁåAiÀiÁ®AiÀÄ, ªÀÄAUÀ¼ÀÆgÀÄ «µÀAiÀÄ: PÁ£ÀÆ£ÀÄ ¨Á»gÀ ZÀlÄªÀnPÉAiÀÄ°è vÉÆqÀVzÀ ±ÁA¨sÀ« PÀè¨ïUÉ zÁ½ £ÀqÉ¸À®Ä ¥ÀÆªÁð£ÀÄªÀÄw ¤ÃqÀÄªÀAvÉ PÉÆÃjPÉ

¶153

¶154

¤ªÉÃ¢¹PÉÆ¼ÀÄîªÀÅzÉÃ£ÉAzÀgÉ GªÀð ¥ÉÆ°Ã¸ï oÁuÁ ªÁå¦ÛAiÀÄ ©eÉÊ PÉ.J¸ï.Dgï.n.¹ §¸ÀÄì ¤¯ÁÝtzÀ JzÀÄgÀÄUÀqÉ EgÀÄªÀ

¶155

¶156

PÀªÀÄ¶ðAiÀÄ¯ï PÀlÖqÀzÀ ªÀÄºÀrAiÀÄ°è ±ÁA¨sÀ« jQæAiÉÄÃµÀ£ï PÀè¨ï PÁAiÀÄðZÀj¸ÀÄwÛzÀÄÝ F PÀè¨ï£À°è PÁ£ÀÆ£ÀÄ ¨Á»gÀ ZÀlÄªÀnPÉ £ÀqÉAiÀÄÄwÛgÀÄªÀÅzÁV RavÀ ªÀiÁ»w zÉÆgÉwÛzÀÄÝ F ¸ÀA§AzsÀ PÀè¨ïUÉ zÁ½ £ÀqÉ¸À¨ÉÃPÁV EgÀÄvÀÛzÉ. F PÀlÖqÀªÀÅ oÁuÁ ªÁå¦ÛAiÀÄ ©eÉÊ PÉ.J¸ï.Dgï.n.¹ §¸ÀÄì ¤¯ÁÝtzÀ JzÀÄgÀÄUÀqÉ EzÀÄ ¥ÀÆªÀðPÉÌ ºÁUÀÆ ¥À²ÑªÀÄ ¢QÌUÉ, CAvÉAiÉÄÃ zÀQëtPÉÌ ¸ÁªÀðd¤PÀ gÀ¸ÉÛ ºÁzÀÄ ºÉÆÃUÀÄwÛzÀÄÝ GvÀÛgÀPÉÌ ªÁtÂdå PÀlÖqÀ EgÀÄvÀÛzÉ.

¶157

DzÀÄzÀjAzÀ F PÁ£ÀÆ£ÀÄ ¨Á»gÀ ZÀlÄªÀnPÉ £ÀqÉAiÀÄÄwÛªÉ J£Àß¯ÁzÀ ±ÁA¨sÀ« jQæAiÉÄÃµÀ£ï PÀè¨ïUÉ zÁ½ £ÀqÉ¹ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆ¼Àî®Ä ¥ÀÆªÁð£ÀÄªÀÄw ¤ÃqÀ®Ä WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ°è PÉÆÃjPÉ.

¶158

GªÀð ¥ÉÆ°Ã¸ï oÁuÉ ¢£ÁAPÀ:24-06-2018

¶159

¥ÉÆ°Ã¸ï ¤jÃPÀëPÀgÀÄ GªÀð ¥ÉÆ°Ã¸ï oÁuÉ ªÀÄAUÀ¼ÀÆgÀÄ £ÀUÀgÀ

¶160

Received on 24/6/18 at 6 A.M and permissoin is accorded.

¶161

Sd/24/6/18 "

¶162

This would not suffice, is the law laid down by the co-ordinate Bench of this Court in the case of

¶163

¶164

Vaggeppa Gurulinga Jangaligi. (Jangaligi) vs. The State of Karnataka reported in ILR 2020 KAR. 630 has held as follows:

¶165

A co-ordinate Bench of this Court in the case of Vaggeppa Gurulinga Jangaligi. (Jangaligi) vs. The State Of Karnataka reported in ILR 2020 KAR. 630 , while considering the entire spectrum of identical issues, has held as follows:

¶166

“ 3. The petitioner has stated that the complaint is misconceived, and the alleged offence is non-cognizable as per the Code of Criminal Procedure, 1973. Therefore, the Police have no authority to investigate the crime. It is further submitted that the Police have not complied with mandatory requirement of Section 155 of Cr. P.C. When the officer-in-charge of the Police Station received information regarding commission of non-cognizable offence, he shall enter the same in a book to be maintained by the said officer and refer the informant to he Magistrate. Further, sub-Section (2) of Section 155 of Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case or commit such case for trial. The petitioner has further stated that there is no iota of evidence that the above said mandatory requirement are complied with. There is no speaking order by the

¶167

¶168

jurisdictional Magistrate permitting the Police to take up investigation. Therefore, the proceedings initiated against the petitioner who is arrayed as accused No. 4 in the charge sheet are liable to be quashed.

¶169

5. The Learned Counsel for the petitioner submitted that the offence punishable under Section 87 of the K.P. Act is non-cognizable one and therefore, as per Section 155(1) of Cr. P.C., the informant PSI ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed the order, permitting the concerned Police to take up investigation of the case and these are the mandatory requirements of the provisions under Section 155(1) and 155(2) of Cr. P.C. which are not followed in the present case. Therefore, the proceedings initiated against the petitioner are vitiated and are liable to be quashed.

¶170

8. It is not in dispute that the alleged offence punishable under Section 87 of the K.P. Act is a non-cognizable offence. When the report is received by the SHO of Police Station in respect of commission of non-cognizable offence, the SHO has to follow the mandatory procedure prescribed under Section 155(1) and 155(2) of Cr. P.C. Therefore, it is necessary to refer the said provision. Section 155 of Cr. P.C., which deal with the procedure for investigation and for taking cognizance of non-cognizable offence reads as follows:—

¶171

“155. Information as to noncognizable cases and investigation of such cases.

¶172

¶173

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

¶174

(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.

¶175

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

¶176

(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 noncognizable.”

¶177

9. Therefore, when the SHO of the Police Station receives a report regarding commission of non-cognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr. P.C. Thereafter, the jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of Section 155(2) of Cr. P.C., stated

¶178

¶179

supra. Unless, the Police Officer is permitted by an order of the jurisdictional Magistrate to investigate the non-cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.

¶180

10. This Court in the case of Praveen Basavanneppa Shivalli v. State of Karnataka [(2017) 1 AIR Kant R 461] , considered the requirement of Section 155(1) and (2) of Cr. P.C., where case relates to a non-cognizable offence, in para 10 of the judgment this Court has observed as follows:

¶181

“10. S. 155 of Cr. P.C. deals with the procedure to be adopted in respect of the information received by the Officer in charge of a Police Station relating to commission of non-cognizable offence. As per sub-section (I) of S. 155 Cr. P.C. when an Officer in charge of Police Station receives the information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be maintained by such Officer in the prescribed form ‘and refer the informant to the Magistrate’. Sub-section (2) of S. 155 Cr. P.C. makes it clear, that no Police Officer shall investigate a non-cognizable case without the order of a Magistrate having power to tty such case or commit case for trial. Sub-section(1) of S. 155 Cr. P.C., which casts a duty on the station house officer who receives information as to the commission of non-cognizable offence to enter or cause to be entered the information in the prescribed book and

¶182

¶183

refer the informant to the Magistrate, does not enable the SHO himself to approach the Magistrate and seek orders. The provision makes it clear, that the SHO shall refer the informant to the Magistrate, thereby, making clear that it is for the informant to seek the orders of jurisdictional Magistrate for issue of direction to the police for investigation of the case. The Magistrate, on being approached by the informant, if orders investigation, the SHO concerned would get jurisdiction to register the crime, investigate the matter and not otherwise.”

¶184

11. This Court in the case of Mukkatira Anitha Machaiah v. State of Karnataka [ Crl.P. 5934/2009 decided on 20/8/2013] , considered the scope of Section 155(1) and (2) of Cr. P.C., has observed in para 5 as follows:—

¶185

“5. Section 155 of Cr. P.C. deals with the procedure to be adopted in respect of an information received by the officer in charge of a police station relating to commission of a non-cognizable offence. According to sub-section (1) of Section 155 of Cr. P.C., when an officer in charge of the Police Station receives an information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. According to sub-section (2) of Section 155 of Cr. P.C., no police officer shall investigate a non-cognizable case without a order of a Magistrate having power to

¶186

¶187

try such case or commit the case for trial. Thus reading of sub-section (1) of Section 155 of Cr. P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is only to enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter.”

¶188

12. This Court in paragraph 6 has further has observed as follows:—

¶189

“In the case on hand, as noticed supra, upon receipt of the report submitted by the 2^nd respondent, the SHO of Virajpet Police Station registered the same as NCR and submitted a requisition to the jurisdictional Magistrate seeking permission to investigate the matter, based on which, the Magistrate granted permission. Thus, the procedure adopted by the SHO is without the authority of law and the same is not contemplated under Section 155 of Cr. P.C. Therefore, the permission granted by the Magistrate on such requisition is also without any basis, as such, the investigation carried on by the police and the charge sheet filed thereon are without the authority of law. Therefore, the prosecution launched

¶190

¶191

against the petitioner is liable to be quashed. However, it is open to Respondent No. 2, who is the informant before the police to approach the jurisdictional Magistrate and seek necessary orders as contemplated under Section 155 of Cr. P.C.”

¶192

13. Therefore, the SHO of the Police Station has no authority of law unless the jurisdictional magistrate permits the Police Officer for investigation of the non-cognizable offence.

¶193

14. This Court in the case of Padubidri Members Lounge v. Director General and Inspector General of Police [W.P. Nos. 4207375/2018 DD : 3/10/2012] , considered the mandatory provision of Section 155(1) and (2) of CrP.C., where the charge sheet was filed for the offence under Section 87 of the K.P. Act. In paragraphs 6 and 7, this Court has held as follows:—

¶194

“6. As per the above provisions, when an Officer-in-charge of the police station receives an information with regard to commission of non-cognizable offence/s, i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribedform and ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.

¶195

¶196

7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr. P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr. P.C., or obtained necessary order as envisaged under Section 155(2) of Cr. P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr. P.C.”

¶197

15. Again this Court, in the case of Veeranagouda v. The State of Karnataka [ Crl.P. No. 102021/2018 decided on 11/1/2019] , considered the requirements of Section 155(1) and (2) of Cr. P.C., and has held in para 9 as follows:—

¶198

“The Counsel appearing for the petitioner' also brought to the notice of this Court that when a requisition was given to the Magistrate, only an endorsement is made as permitted to investigate as per section 155 of Cr. P.C. on the very request letter itself and the same is not in accordance with law. The concerned Magistrate did not apply his mind and passed any considered order. On the requisition only an endorsement is made and the same is not the permission in the eye of law. Therefore in reality it is not permission at all and the prosecution has not satisfied the Court that mandatory requirements are complied before proceeding with the investigation

¶199

¶200

in the matter. Legal aspect has not been complied and the same has been over looked by the Court below while ordering for registering the criminal case against the petitioners' herein. Looking to these materials it goes to show that it is the abuse of process of Court to continue the proceedings. Not only it is wasting of valuable time and energy of the Court. Even if the trial is proceeded with, it is a futile exercise in the matter.”

¶201

16. Therefore, this Court time and again has quashed the proceedings initiated against the accused persons in respect of non-cognizable offence on the ground that the mandatory provisions of Section 155(1) and (2) of Cr. P.C., are not complied with. However, this Court has not laid down any guidelines for the Learned Magistrates as to how and in what manner they have to pass the Order under Section 155(2) of Cr. P.C., when a requisition is submitted to the Learned Magistrate seeking permission to investigate the non-cognizable offence.

¶202

17. In the cases referred above, invariably the Learned Magistrates have passed the orders on the requisition submitted by the SHO of the Police Station by writing a word “permitted” or “permitted to investigate”. This Court has held that making such an endorsement on the requisition submitted by the Police is not passing orders and there is no application of judicious mind in permitting the Police Officer to take up the investigation for noncognizable offence.

¶203

¶204

18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our Judicial Magistrates as to how they have to approach and pass orders when requisition is submitted by the SHO of Police Station seeking permission to investigate into the non-cognizable offence. The provision of Section 155(1) and (2) of Cr. P.C., referred above make it very much clear that the SHO of the Police Station on receiving the information regarding the commission of non-cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155(1) of Cr. P.C. Once the requisition is submitted to the Magistrate, it is for the Jurisdictional Magistrate to consider the requisition submitted by the SHO of Police Station and pass necessary order either permitting the Police Officer to take up the investigation or reject the requisition. Section 155(2) of Cr. P.C., specifically provides that no Police Officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an “order” by the Magistrate permitting the Police Officer to investigate the non-cognizable offence is an important factor. The word without the order of the Magistrate appearing in subSection (2) of Section 155 of Cr. P.C., makes it clear that the Magistrate has to pass an ‘order’ which means supported by reasons.

¶205

¶206

On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word ‘permitted’ on the requisition submitted by the Police itself which does not satisfy the requirement of Section 155(2) of Cr. P.C., Such an endorsement cannot be equated with the word ‘Order’.

¶207

19. Chapter V Rule 1 of Karnataka Criminal Rules of Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:—

¶208

“INVESTIGATION AND PROSECUTION

¶209

*1. Report under Section 154.—(1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.

¶210

2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted.”

¶211

20. Therefore, under Rule 1, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the Police Officer or the Police

¶212

¶213

Officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr. P.C., and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.

¶214

i) The Jurisdictional Magistrates shall stop hereafter making endorsement as ‘permitted ’ on the police requisition itself Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr. P.C.

¶215

ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.

¶216

iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.

¶217

iv) The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.

¶218

¶219

v) In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than informant or the complainant.

¶220

21. Coming to the case on hand, the SHO of Kagwad Police Station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P. Act which is a noncognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:—

¶221

“Perused materials. Permitted

¶222

Sd/-”

¶223

22. Therefore, absolutely there is no application of judicious mind by the Learned Magistrate before permitting the Police to investigate the non-cognizable offence much less an order passed by the Learned Magistrate.

¶224

23. Under these circumstances, the proceedings initiated against the petitioner in CC No. 3397/2019 pending on the file of the IV Additional Civil Judge and JMFC, Athani, are liable to be quashed so far as the petitioner is concerned. Accordingly, the petition filed under Section 482 of Cr. P.C., is allowed and the said proceedings are hereby quashed as against the petitioner is concerned.”

¶225

(Emphasis supplied)

¶226

¶227

In the light of the undisputed fact of the nod of the learned Magistrate and the law laid down by the Co-ordinate Bench of this Court (supra), the petition deserves to succeed.

¶228

For the aforesaid reasons, the following:

¶229

ORDER

¶230

i. Criminal Petition is allowed.

¶231

ii. Proceedings in C.C.No.6236/2018 pending on the file of the J.M.F.C., III Court at Mangaluru City, stand quashed.

¶232

In view of the disposal of the main petition,

¶233

I.A.No.1/2022 also stands disposed.

¶234

Sd/JUDGE

¶235

Ganesh Shetty v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Ganesh Shetty v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri N Nagaraju Vs the State by Sub Inspector of Police

Arjun Horakeri K Vs the State of Karnataka

Dr Zulfikar Ali Ahmed Vs State of Karnataka

Sri.T.L.Ramachandra Reddy Vs M.Srinivasreddy

Sri Prakash R Kota Vs State of Karnataka

Sri. Kalpakumar Jain Vs State by Madanayakanahally Police Station