Allowed

Shrenikkumar N Baldota v. the State of Karnataka

Karnataka HC15 Sept 2023CRL.P/100270/2022

Case brief

AI extract

What is this about?

Prosecution for non-cognizable forest offences arising from mining was challenged for want of Magistrate's permission and specific allegations against office bearers. The Court allowed the petition and quashed the proceedings, reserving liberty to proceed in accordance with law.

What did the court decide?

Proceedings in C.C.No.267 of 2020 before the Civil Judge and JMFC, Sandur, Ballari quashed, reserving liberty to the respondent to proceed in accordance with law.

Shrenikkumar N Baldota Vs the State of… — Mining and Natural Resources | Karnataka HC (2023)

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NC: 2023:KHC-D:11883 CRL.P No. 100270 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 100270 OF 2022

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BETWEEN:

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SHRENIKKUMAR N. BALDOTA S/O NARENDRAKUMAR A. BALDOTA, AGED ABOUT 50 YEARS, PARTNER,

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P. VENGANNA SETTY & BROS MINING LICENCE NO. 2587, HAVING ITS REGISTERED OFFICE: BALDOTA ENCLAVE, ABJERAJ BALDOTA ROAD, HOSAPETE-583203, DIST. VIJAYANAGAR.

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SRI. P. MURUGAYYA S/O KRISHNAYYA, AGED ABOUT 45 YEARS, OCC. FORMER MANAGER, P. VENGANNA SETTY & BROS MINING LICENCE NO. 2587, BALDOTA ENCLAVE, ABJERAJ BALDOTA ROAD, HOSAPETE-583203, DIST. VIJAYANAGAR.

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Digitally signed by VISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2023.10.16 13:53:22 +0530

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P. VENGANNA SETTY & BROS MINING LICENCE NO. 2587, HAVING ITS REGISTERED OFFICE: BALDOTA ENCLAVE ABHERAJ BALDOTA ROAD, HOSAPETE-583203, DIST. VIJAYANAGAR.

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… PETITIONERS

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(BY SRI. SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, R/BY ITS RANGE FOREST OFFICER, SANDUR, NORTH RANGE SANDUR, BALLARI DISTRICT, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560001.

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… RESPONDENT

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(BY SRI. V.S. KALASURMATH, HCGP)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE FIRST INFORMATION REPORT BEARING NO.331894 DATED 27.02.2015 (ANNEXURE-A) AND THE CHARGE SHEET BEARING NO.09/2019-2020 DATED 05.03.2020 (ANNEXUREB) FOR THE OFFENCES PUNISHABLE U/S 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109 OF THE KARNATAKA FOREST ACT, 1963 AND RULE 144 OF KARNATAKA FOREST RULES, 1969 AND SUBSEQUENTLY ORDER DATED 10.08.2020 PASSED BY THE CIVIL JUDGE AND JMFC AT SNADUR, BALLARI IN FOC NO.23/2014-15 (ANNEXURE-C) TAKING COGNIZANCE OF THE OFFENCES PUNISHABLE U/S 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109 OF THE KARNATAKA FOREST ACT, 1963 AND RULE 144 OF KARNATAKA FOREST RULES, 1969 AND ALL FURTHER PROCEEDINGS IN CC NO.267/2020 PENDING ON THE FILE OF THE CIVIL JUDGE AND JMFC AT SANDUR, BALLARI.

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

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ORDER

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The petitioners, in the subject petition, are before this

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Court seeking the following prayers:

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“I. Quash the first information report bearing No.331894 dated 27.02.2015 (Annexure-A) and the charge sheet bearing No.09/2019-2020 dated 05.03.2020 (Annexure-B) for the offences punishable under Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109 of the Karnataka Forest Act and Rule 144 of Karnataka Forest Rules, 1969; subsequently order dated 10.08.2020 passed by the Hon’ble Civil Judge and JMFC at Sandur, Ballary in FOC No.23/2014-15 (Anneure-C) taking cognizance of the offences punishable under Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109 of the Karnataka Forest Act and Rule 144 of Karnataka Forest Rules, 1969 and all further proceedings in CC No.267/2020 pending on the file of the Hon’ble Civil Judge and JMFC at Sandur, Ballary;

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II. Further this Hon’ble Court may be pleased to grant such other reliefs as deemed fit in the interest of justice and equity. ”

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Heard Sri Shivaprasad Shantanagoudar, learned counsel appearing for petitioners and the learned High Court Government Pleader appearing for respondent.

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Facts in brief, germane, are as follows:

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The Government of Karnataka grants a mining lease in favour of the 3^rd petitioner-P.Venganna Setty & Bros. It transpires that the Apex Court pursuant to a writ petition filed in W.P.No.562 of 2009 and connected cases, grants interim order dated 29-07-2011 suspending mining operations and transportation of iron ore in Ballari District and constituted a Central Empowered Committee (‘CEC’ for short) to inspect and submit a report on the allegations of illegal mining. The CEC submits its report to the Apex Court on 03-02-2012, after which, the Apex Court disposes Writ Petition No.562 of 2009 and SLP Nos.7366-67 of 2010 and other connected matters directing a survey to be conducted by the CEC and boundaries of the lease to be drawn and accepted. The respondent then registers a crime against the petitioners after cancellation of the mining lease and the investigation was conducted and a charge sheet is also filed. The learned Magistrate also takes

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cognizance of the offences in terms of his order dated 10-082020. Calling in question the order of taking cognizance, the petitioners are before this Court in the subject petition.

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Learned counsel appearing for the petitioners would contend that all the offences alleged against the petitioners are non-cognizable and for a non-cognizable offence, permission of the learned Magistrate to even register the crime was imperative. It is an admitted fact, in the case at hand, that the permission of the Magistrate is neither sought nor granted. Therefore, it is in violation of Section 155(2) of the CrPC. He would further contend that the petitioners 1 and 2 being the office bearers are not alleged of any particular role or activity in the complaint. Vague and omnibus allegations form the complaint registered against the petitioners. He would, on this score as well, seeks quashment of the entire proceedings.

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Learned High Court Government Pleader, though at the first blush, would seek to defend the action of registering the crime against the petitioners or filing of the charge sheet, would admit 2 facts, that the permission of the learned

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Magistrate is not obtained and there is no individual overt act attributed to the petitioners 1 and 2 who are the office bearers of the 3^rd petitioner/Company, nonetheless, he would seek dismissal of the petition, on the score that the charge sheet is filed and it is for the petitioners to come out clean in the trial.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute and therefore, require no reiteration. The charge sheet is filed against the petitioners for the offences punishable under Sections 4(1), 4(1A), 4(2), Sections 21, 23, 21(6) of the Mines and Minerals (Development and Regulation) Act 1957 and Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109 of the Karnataka Forest Act, 1963 and Rule 144 of Karnataka Forest Rules, 1969. The learned Magistrate, by order dated 10-08-2020 takes cognizance for the offences punishable under Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82(b), 109

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of the Karnataka Forest Act, 1963 and Rule 144 of Karnataka Forest Rules, 1969.

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It is not in dispute that every one of the offence is non-cognizable and for a non-cognizable offence, permission of the learned Magistrate is imperative. It is an admitted fact as verified and submitted by the learned High Court Government Pleader that permission of the learned Magistrate is not taken before registering the offence under the Karnataka Forest Act and the Karnataka Forest Rules. Therefore, the very registration of the crime, on such cognizable offence, without the permission of the learned Magistrate, would admittedly become illegal and the illegality of which would lead to its obliteration.

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Reference being made to the judgment of the coordinate Bench in the case of VAGGEPPA GURULINGA JANGALIGI v. STATE OF KARNATAKA¹ in the circumstances becomes apposite, wherein it is held as follows:

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“ 3. The petitioner has stated that the complaint is misconceived, and the alleged offence is non-cognizable

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1 ILR 2020 KAR 630

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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 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 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.

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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 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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(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. (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

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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 and Others MANU/KA/1443/2016 [(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:

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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 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

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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 and Another in 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 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

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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 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 in W.P. Nos. 42073-75/2018 Decided on 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

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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 prescribed form 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 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 and others vs. The State of Karnataka in 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,

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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

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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 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,

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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 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 under Section 482 of Cr. P.C., is allowed and the said proceedings are hereby quashed as against the petitioner is concerned.”

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(Emphasis supplied)

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Later, this Court while interpreting the offences which

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are non-cognizable and it being vitiated on account of no permission being granted at the hands of the learned Magistrate in Crl.P.No.6704 of 2020 disposed on 23-03-2022 has held as follows:

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“4. Admittedly, the FIR is registered without the nod of the learned Magistrate as obtaining under Section 155(2) of the Cr.P.C. Since all the offences are noncognizable without the express permission of the learned Magistrate, the crime could not have been registered against the petitioner. The issue with regard to whether the crime could be registered under the offences as aforequoted is no longer res integra as this Court in Criminal Petition No.6488/2009 and connected cases dated 11.06.2010 dealing with the very same offences, has held as follows:

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“4. The respondent after registering the case against the petitioners, investigated the matter and filed charge sheet to the Court for the offence punishable

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under Sections 24 (f), (g), (gg) and (h) and 73 (d) of the Karnataka Forest Act, 1963 (for short ‘the Act’) and Rule 41(2) of the Karnataka Forest Rules, 1969 (for short ‘the Rules).

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5. The short point that arises for consideration in these petitions is:

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Whether the investigation conducted and charge sheet filed by the respondent before the trial Court without obtaining prior permission of the Court is sustainable in law or not?

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After hearing the learned Counsel appearing for the parties and perusing the relevant provisions of law I hold that the investigation held and charge sheets filed by the respondent before the trial Court are bad in law and they are liable to set aside.

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6. As per Section 155(2) of Cr.P.C. no police 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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As per Section 155(3) of Cr.P.C. 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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Unless a special enactment i.e. the Karnataka Forest Act and Rules made thereunder in the instant case, stipulates that a police officer or Forest Authority can investigate the matter notwithstanding the provisions of Sections 155(2) of Cr.P.C. without obtaining prior permission or sanction of the jurisdictional Magistrate.

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As per Section 155(4) of Cr.P.C. 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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7. Section 2(c) of Cr.P.C. defines “cognizable offences” means an offence for which, and “cognizable case” means a case in which a police officer may, in

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accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

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Section 2(I) of Cr.P.C. defines “non-cognizale offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant.

¶133

The First Schedule of Cr.P.C. deals with classification of offences under the Indian Penal Code and Clause II of First Schedule deals with classification of offences against other Laws. As per Clause II of the First Schedule an offence punishable with imprisonment for less than 3 years or with fine only is a non-cognizable offence.

¶134

8. The punishment prescribed for the offences committed under Sections 24 (f), (g), (gg) and (h) of the Karnataka Forest Act, is imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both, and in addition be liable to pay such compensation for the damage done to the forests as the convicting Court may direct to be paid.

¶135

9. The punishment prescribed for the offence committed under Section 73(d) of the Act is imprisonment which may extend to two years, or with fine, or with both. Whereas no punishment is prescribed for the offence committed under Rule 41(2) of the Rules, as per Rules 43, 58 and 165 of the Rules which deal with penalties.

¶136

As the offences punishable under Section 24 (f), (g), (gg) and (h) and 73(d) of the Karnataka Forest Act are non-cognizable in nature and are punishable for less than three years or with fine or with both, no police officer shall investigate the said offence/s without the order of a Magistrate having power to try such case or commit the case for trial.”

¶137

4. Therefore, the following:

¶138

ORDER

¶139

i. The Criminal Petition is allowed.

¶140

20 -

¶141

NC: 2023:KHC-D:11883 CRL.P No. 100270 of 2022

¶142

ii. Proceedings pending in C.C.No.547/2009 before the Principal Civil Judge (Junior Division) & JMFC, Kanakapura stands quashed reserving liberty to the respondents to proceed in accordance with law.”

¶143

Therefore, on this score, the proceedings so initiated against the petitioners are rendered unsustainable. Though the unsustainability of it would lead to its obliteration, what needs consideration is, whether there is any role attributed to petitioners 1 and 2 in the crime so registered or in the charge sheet so filed. A perusal at the charge sheet would clearly indicate no offences alleged individually against the petitioners. General allegations are made against every person in the field of mining. Insofar as the petitioners are concerned what is found is against the Company. Unless petitioners 1 and 2 are alleged of particular overt acts, it cannot be said that they are also to be hauled into the proceedings and proceedings be permitted to be continued against them.

¶144

The learned Magistrate takes cognizance of the offences. The order of taking cognizance though refers to the provisions of the Act it does not bear any application of mind. In the light of no specific overt act alleged against these

¶145

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NC: 2023:KHC-D:11883 CRL.P No. 100270 of 2022

¶147

petitioners, the proceedings on that score as well deserve to be obliterated.

¶148

In the light of the judgments referred to (supra) and

¶149

also for the reasons as afore-quoted, I proceed to pass the following:

¶150

(i) Criminal Petition is allowed.

¶151

(ii) The impugned proceedings in C.C.No.267 of 2020 pending on the file of Civil Judge and JMFC, Sandur, Ballari stands quashed reserving liberty to the respondent to proceed in accordance with law.

¶152

Sd/JUDGE

¶153

bkp ct:bck List No.: 1 Sl No.: 33

Shrenikkumar N Baldota v. the State of Karnataka

Case brief

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Shrenikkumar N Baldota v. the State of Karnataka

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