Allowed

Prakash v. State of Karnataka

Karnataka HC26 Sept 2022CRL.P/2411/2020

Case brief

AI extract

What is this about?

This Criminal Petition challenged criminal proceedings under the Karnataka Police Act. The High Court held that the investigation was illegal as the police failed to obtain a reasoned order from the Magistrate under Section 155(2) Cr.P.C., rejecting a mere 'permitted' endorsement. The proceedings are quashed.

What did the court decide?

Proceedings in C.C.No.2856/2019 pending before JMFC (VII Court), Mangalore, quashed qua the petitioners.

Prakash Vs State of Karnataka — Constitutional and Fundamental Rights | Karnataka HC (2022)

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CRL.P No. 2411 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 2411 OF 2020

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BETWEEN:

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PRAKASH S/O. LATE. GANAPATHI RAO, AGED ABOUT 57 YEARS, R/AT SREE DEVI FLAT, SANKILOGE, KOTEKKAR VILLAGE, MANGALORE, DK 575016.

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SEETHARAM S/O. LATE. BHOJA POOJARY, AGED ABOUT 50 YEARS R/AT KRISHNA NAGAR, THOKKOTTU OLAPETE, ULLAL, MANGALORE 575020

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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HARISH S/O. LATE. CHINNAPPA NAIK, AGED ABOUT 37 YEARS, R/AT NEAR ARABIAN MEXICO, TUMINADU,KUNJATTUR VILLAGE, MANJESHWAR, KASARAGOD, 671322

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SHIVAPPA MADHAVA SHETTY S/O. MAHDHAVA SHETTY, AGED ABOUT 67 YEARS, R/AT KOTEKARU GUTTU HOUSE,

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SANKOLIGE, KOTEKAR VILLAGE, MANGALORE 575016

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1. MOHAAMMED HASAN S/O. MAHAMMED, AGED ABOUT 45 YEARS, R/AT KONDANA HOUSE, KUSHALANAGARA, KOTEKARU VILLAGE, MANGALORE 575016

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1. P NASIR S/O. MOOSA, AGED ABOUT 53 YEARS, R/AT NEAR YATHIM KHAN MASJID, KUMPALA, SOMESHWAR, DK 575015

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1. MOHAMMED HANEEF @ HANEEF S/O. ABDULLA, AGED ABOUT 40 YEARS, R/AT NEAR NAGABHRAHMA TEMPLE, DHARMANAGARA, ULLAL VILLAGE, MANGALORE 575020

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1. IBRAHIM S/O. LATE ABDUL KHADAR, AGED ABOUT 60 YEARS, R/AT NEAR UCCHILA, SCRAP SHOP, UCCHILA, SOMESHWARA VILLAGE, MANGALORE 575016

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1. ABDUL RAWOOF S/O. SALIA SAHEB, AGED ABOUT 42 YEARS, R/AT NO. 2-101, MODOOR, KOTEKAR VILLAGE, MANGALORE 575016

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…PETITIONERS

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(BY SMT. HALEEMA AMEEN FOR SRI. ASHOK KUMAR SHETTY K., ADVOCATE)

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CRL.P No. 2411 of 2020

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AND:

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STATE OF KARNATAKA BY ULLAL POLICE STATION, REP BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE 560001

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…RESPONDENT

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(BY SMT. K P YASHODHA.,HCGP)

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THIS CRL.P. IS FILED U/S.482 OF THE CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.2856/2019 (CR.NO.114/2019 OF ULLAL POLICE STATION) PENDING ON THE FILE OF J.M.F.C.(VII COURT), MANGALURU FOR THE OFFENCE P/U/S 79 AND 80 OF KARNATAKA POLICE ACT.

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

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ORDER

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The petitioners are before this Court calling in question the proceedings in C.C.No.2856/2019 registered for offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963.

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Heard Smt. Haleema Ameen, learned counsel

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appearing for the petitioners, Smt. K.P. Yashodha, learned HCGP, appearing for the respondent and have perused the material on record.

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Learned counsel appearing for the petitioners would

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submit that the issue in the lis stands covered by the judgment rendered by a Co-ordinate Benches of this Court insofar as the issue with regard to the kind of game that is sought to be alleged i.e., Andhar Bahar, a Co-ordinate Bench of this Court in Crl.P.No.9298/2017 dated 30.01.2018 has held as follows:

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"2. The allegations made in the FIR discloses that, on midnight of 04/05.03.2017 at 3.00 p.m., the RespondentMandya West Police have raided a Hotel-by name Prince Comfort in Mandya, where, in a room they found about 7 to 8 persons were indulged in gambling by playing AndarBahar game with the help of playing cards. The said police collected the panchwitnesses and conducted panchnama, seized certain articles and also arrested the petitioners/accused and thereafter, on completion of investigation, filed a charge sheet.

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3. On perusal of the materials on record, there is no explanation as to how the Andar-Bahar game was4 played and whether it is a pure game of chance or a game of skill. When, with all certainty it is clarified that it is only a game of chance, then only the offence falls under the category of gambling. In this context, this court has taken a view in various decisions that a play of Andar-Bahar without any explanation cannot be categorized as a pure game of chance. In this regard, it is worth to note here a decision of this court reported in 2012 (1) KCCR 203 [K.N. Suresh Vs. State of Karnataka and Another] wherein this court while discussing the provisions under Sections 79, 80 and 2(3) of K.P. Act, has held that,-

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“Police raiding house of petitioner- Found to be playing ‘Andar Bahar’ with others – Plea of prosecution that his residential house cannot be treated as a ‘common gaming house’- Hence, he committed an offence - complaint No other against person making petitioner.-

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any Held registration of case against petitioner by Police is sheer abuse of process of law – Hence, quashed”.

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4. Further, in another decision, during the course of discussion on the same subject, the court has also relied upon the earlier decision of this court in Chickarangappa and others Vs. State of Mysore [1971(2) Mys. L.J. 187] , it also reiterated the same principles.

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5. In another decision reported in Eranna and others Vs. State of Karnataka [1977(1) Kar. L.J. 274] , this court has observed that,-

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“Unless the prosecution proved, how the game of ‘Andar Bahar’ is played and in what manner bettings are recorded, it could not be inferred that it was a pure and simple game of chance and not a game of skill”.

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6. This court also observed in the said case that, though the persons were playing the game called ‘Andar Bahar’ in a private house or at a public house, the court interpreting the provisions of Section 2(3) of K.P. Act referring to the definition of ‘Common Gaming House’, has observed that, though the persons were playing ‘Andar Bahar’ inside their house for that reason only it cannot be called as a common gaming house. When no complaint has been filed by anybody that the said house has been converted into a common gaming house at any point of time. Merely on the ground as an isolated circumstance, if some persons or the inmates of the house were playing ‘Andar Bahar’, at any stretch of imagination, it cannot be said that the said house can be called as ‘Common Gaming House’.

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7. Looking to the facts of this case and also the said decision of this court, this case also stand on the same footing as that of the above referred cases. Therefore, I do not find any strong reason to differ from the view that has already been taken by this court in the above referred cases. Moreover, there is no material to show that the police have registered the said case and investigated the matter with the permission of the jurisdictional Magistrate under Section 155(2) of Cr.PC., and if no permission is taken by the learned Magistrate, the whole investigation becomes illegal."

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Insofar as the issue with regard to seeking permission from the hands of the learned Magistrate under Section 155(2) of the Cr.P.C., the learned HCGP has produced the records, which would demonstrate that it is only 'permitted' . Though a few words precede the word 'permitted' , nothing else has been said. Therefore, it stands covered by the judgment rendered by 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

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630 , considering the very issue has held as follows:

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“ 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 jurisdictional Magistrate permitting the Police to take up investigation. Therefore, the proceedings initiated against the petitioner who is

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arrayed as accused No. 4 in the charge sheet are liable to be quashed.

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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.

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8. It is not in dispute that the alleged offence punishable under Section 87 of the K.P. Act is a noncognizable offence. When the report is received by the SHO of Police Station in respect of commission of noncognizable 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:—

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

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(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 noncognizable 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.

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(2) No police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

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(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.

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(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.”

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9. Therefore, when the SHO of the Police Station receives a report regarding commission of noncognizable 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 supra. Unless, the Police Officer is permitted by an order of the jurisdictional Magistrate to investigate the noncognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.

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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 noncognizable offence, in para 10 of the judgment this Court has observed as follows:

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“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 noncognizable 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

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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. Subsection(1) of S. 155 Cr. P.C., which casts a duty on the station house officer who receives information as to the commission of noncognizable offence to enter or cause to be entered the information in the prescribed book and 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.”

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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:—

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“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 noncognizable 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 noncognizable 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

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order of a Magistrate having power to 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.”

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

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“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 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.”

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13. Therefore, the SHO of the Police Station has no authority of law unless the jurisdictional magistrate

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permits the Police Officer for investigation of the non- cognizable offence.

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14. This Court in the case of Padubidri Members Lounge v. Director General and Inspector General of Police [W.P. Nos. 42073-75/2018 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:—

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“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, SubSection (2) of Section 155 Cr. P.C., mandates that no Police Officer shall investigate a noncognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.

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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.”

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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:—

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“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 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.”

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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.

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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

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is not passing orders and there is no application of judicious mind in permitting the Police Officer to take up the investigation for non-cognizable offence.

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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 sub-Section (2) of Section 155 of Cr. P.C., makes it clear that the Magistrate has to pass an ‘order’ which means supported by reasons. 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’.

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

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“INVESTIGATION AND PROSECUTION

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*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.

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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.”

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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 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.

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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.

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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.

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iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine

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whether the SHO of the police station has referred the informant to him with such requisition.

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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.

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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.

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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 non-cognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:—

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“Perused materials. Permitted

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Sd/-”

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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.

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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

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