Allowed

M/S. Bambino Associates v. the State of Karnataka

Karnataka HC2 Jun 2022WP/58086/2017

Case brief

AI extract

What is this about?

High Court Bench quashed FIR and subsequent charge sheet registered for playing games of chance under Karnataka Police Act. Bench held investigation invalid as Magistrate endorsed requisition 'permitted' instead of passing reasoned order under Section 155(2) Cr.P.C., rendering entire proceeding without legal authority.

What did the court decide?

Writ petitions allowed; proceedings in Crime No.225/2017 and FIR in Crime No.188/2017 quashed.

M/S. Bambino Associates Vs the State of… — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION No.58086/2017 (GM-RES)

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C/W

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WRIT PETITION No.58085/2017 (GM-RES)

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IN W.P.NO.58086/2017:

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BETWEEN :

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M/S.BAMBINO ASSOCIATES SHOP NO.10 AND 11, 5^TH AVENUE GROUND FLOOR, BRIGADE ROAD BENGALURU – 560 001 REPRESENTED BY ITS PRESIDENT RAJI ABRAHAM S/O ABRAHAM AGED ABOUT 45 YEARS

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...PETITIONER

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(BY SRI.V.LAKSHMINARAYAN, SENIOR COUNSEL FOR SRI.VIKRAM BALAJI B.L., ADVOCATE)

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IN W.P.NO.58085/2017:

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BETWEEN :

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SRI.REJI MANKUZHIYIL @ RAJI ABRAHAM S/O ABRAHAM AGED ABOUT 45 YEARS OWNER OF M/S BAMBINO ASSOCIATES SHOP NO.10 AND 11 5^TH AVENU GROUND FLOOR

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BRIGADE ROAD

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BENGALURU – 560 001 ...PETITIONER

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(BY SRI.V.LAKSHMINARAYAN, SENIOR COUNSEL FOR SRI.VIKRAM BALAJI B.L., ADVOCATE)

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AND :

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY HOME DEPARTMENT VIDHANA SOUDHA, BENGALURU – 560 001

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THE DIRECTOR GENERAL AND INSPECTOR OF POLICE POLICE HEAD QUARTERS NRUPATHUNGA ROAD BANGALORE – 560 001

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THE COMMISSIONER OF POLICE INFANTRY ROAD, BENGALURU – 560 001

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THE DEPUTY COMMISSIONER OF POLICE CENTRAL DIVISION, BENGALURU – 560 102

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THE INSPECTOR OF POLICE CUBBON PARK POLICE STATION BENGALURU – 560 001

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SMT.SHOBHA N AGED ABOUT 35 YEARS SUB INSPECTOR OF POLICE CUBBON PARK POLICE STATION K.B.ROAD

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BANGALORE – 560 001

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...RESPONDENTS (COMMON)

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(BY SRI ROHITH B.J., HCGP)

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THIS WRIT PETITION NO.58086/2017 IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIRST INFORMATION REPORT CRIME NO.0225/2017 DATED 14.11.2017 (ANNEXURE-A) AND DECLARE FURTHER PROCEEDINGS AS AB INITIO VOID AND CONTRARY TO THE DIRECTIONS ISSUED BY THIS COURT AND HON’BLE APEX COURT ETC.

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THIS WRIT PETITION NO.58085/2017 IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS FIRST INFORMATION REPORT CRIME NO.188/2017 DATED 30.08.2017 OF CUBBON PARK POLICE STATION REGISTERED FOR OFFENCES UNDER SECTION 79 AND 80 OF THE KARNATAKA POLICE ACT 1963 (ANNEXURE –A) AND DECLARE FURTHER PROCEEDINGS AS AB INITIO VOID AND CONTRARY TO THE DIRECTIONS ISSUED BY THIS COURT AND HON’BLE APEX COURT.

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The issue involved in these petitions are similar, therefore, they are taken up together for final order.

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Police having received a credible information

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that the petitioners were involved in playing game of chance conducted a raid on the premises in question and seized the cash and cards. Police registered the First Information Report for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (for short ‘K.P Act’).

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Sri V.Lakshminarayan, learned Senior Counsel appearing for the petitioners submits that the offences alleged against the petitioners are non-cognizable and in the absence of an order passed under Section 155(2) of the Code of Criminal Procedure (for short ‘Cr.PC’) the registration of the FIR culminating in filing of a charge sheet is one without authority of law. In support of his submission, he places reliance on the order passed by this Court in Hariraj Shetty V/s State of Karnataka (W.P.No.14076/2021(GM-RES) disposed on 08^th March 2022 ).

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Learned High Court Government Pleader

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submits that during the pendency of the petitions, charge sheet has been filed and in the absence of challenge to the same, the present petition is not maintainable. He further submits that the petitioners were found playing the game of chance which is an offence under Sections 79, 80 of the K.P Act and as such the filing of the charge sheet against the petitioner cannot be faulted with.

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The offence punishable under Sections 79 and 80 of the K.P Act are non-cognizable. On the requisition sent by the police seeking permission for registering the FIR against the petitioner/accused, the learned Magistrate has made an endorsement ‘permitted’. Based on the said endorsement the police registered the FIR against the petitioners for the aforesaid offences and after conducting the investigation, submitted the charge sheet during the pendency of this petition.

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The Coordinate Bench of this Court in the case

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of Vaggeppa Gurulinga Jangaligi v. State of Karnataka

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reported in 2019 SCC OnLine Kar 2708 has held that Section 155(2) of Cr.P.C., provides that no police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such a case or commit the case for trial. Therefore, passing of the order by the learned magistrate permitting the officer to investigate the non-cognizable offence is an important factor. The words ‘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. The endorsement made ‘permitted’ on the requisition submitted by the police does not satisfy the requirement of section 155(2) of Cr.P.C., and such an endorsement cannot be equated with the word ‘order’. Hence, the registration of the first information report culminating in filing of the charge sheet without obtaining an order as specified under section 155(2) of Cr.P.C., stands vitiated.

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I do not see any merit in the submission made by HCGP that present petition has become untenable after submission of charge sheet with the jurisdictional Magistrate during pendency of this petition. The Hon’ble Apex Court in the decision of Anand Kumar Mohatta v. State (NCT of Delhi) reported in (2019) 11 SCC 706 has held that during the pendency of the petition under section 482, if the police after investigation submits the charge sheet, this court exercising its inherent power can entertain the petition to quash FIR which is read as:

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“14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] , this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16)

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“16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.” ”

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The registration of the FIR having been held as

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one without authority of law, the subsequent filing of the charge sheet is also held to be without authority of law. Hence, the filing of the FIR and the charge sheet against the petitioners is not maintainable. Accordingly, I proceed to pass the following:

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ORDER

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The Writ Petitions are allowed.

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The proceedings in Crime No.225/2017

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(C.C.No.3375/2018) pending on the file of Metropolitan Magistrate (Traffic Court-1), Bangalore and the impugned First Information Report in Crime No.188/2017 registered

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by the Cubbon Park Police Station, Bengaluru are hereby quashed.

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Sd/JUDGE

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PKN

M/S. Bambino Associates v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

M/S. Bambino Associates v. the State of Karnataka

Case brief

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