Quashed

Santosh S/O Gnanadeva v. the State of Karnataka

Karnataka HC16 Nov 2023CRL.P/101481/2023

Case brief

AI extract

What is this about?

Criminal Petition filed by petitioner to quash CC No.18/2022 wherein he was prosecuted under Section 78(iii) of Karnataka Police Act, 2021. The Court allowed the petition, quashing proceedings against the petitioner as the investigation and charge sheet were filed in violation of Section 155 Cr.P.C. without magistrate's permission.

What did the court decide?

Proceedings in CC No.18/2022 are quashed as against the petitioner accused No.2.

Santosh S/O Gnanadeva Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC-D:13323 CRL.P No. 101481 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 101481 OF 2023

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BETWEEN:

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SANTOSH S/O GNANADEVA, AGE. 31 YEARS, OCC. LECTURER, R/O. CHIKKAJANTHKAL, TQ. GANGAVATHI, DIST. KOPPAL.

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… PETITIONER

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(BY SRI. PRAVEEN KUMAR G., ADVOCATE FOR SRI. ANAND R. KOLLI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, R/BY ITS SPP, HIGH COURT OF KARNATAKA, BENCH DHARWAD, (THROUGH RURAL P.S. GANGAVATI).

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… RESPONDENT (BY SRI. P.N. HATTI, HCGP)

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.11.20 11:49:51 +0530

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER DATED 11.01.2022 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC GANGAVATHI IN CC NO.18/2022 FOR AN OFFENCE PUNISHABLE U/S 78(iii) OF KARNATAKA POLICE ACT IN CRIME NO.331/2021 REGISTERED BY THE RURAL POLICE STATION GANGAVATI DISTRICT KOPPAL FOR AN OFFENCE PUNISHABLE U/S 78(iii) OF KARNATAKA POLICE ACT 2021 BY ALLOWING THE CRIMINAL PETITION.

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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 petitioner/accused No.2 has sought for quashing of order dated 11.01.2022 passed by the learned Principal Civil Judge and J.M.F.C, Gangavathi in C.C.No.18/2022 for offence punishable under Section 78(iii) of the Karnataka Police Act,2021 (hereinafter referred to as ‘K.P. Act’, for brevity) in Crime No.331/2021 of Gangavathi Rural Police Station.

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Heard learned counsel for the petitioner and learned High Court Government Pleader.

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The case of prosecution is that the Police Inspector, Gangavathi Rural Police Station has registered suo-moto complaint against this petitioner/accused No.2 and another/accused No.1. On 11.01.2021 at about 3.00 P.M he received credible information that near Basavanna Temple, Vinoba Nagar at public place some persons were indulged in playing ‘Mataka’. Based on the said information he conducted the raid along with staff and panch witness and arrested accused No.1 and seized

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articles which were used for the purpose of playing the mataka and submitted report before the SHO, Gangavathi Rural Police Station. The SHO has registered the case on the said report of the Police Inspector in Gangavathi Rural Police Station in Crime No.331/2021 on 11.01.2022 at 5.00p.m for offence punishable under Section 78(iii) of the K.P. Act. Accused No.1 has been produced before the learned Magistrate, who has been remanded to judicial custody. Thereafter, police has filed charge sheet against the petitioner/accused No.2 and another/accused No.1 for offence punishable under Section 78(iii) of the K.P. Act. Based on the charge sheet the learned Magistrate has taken cognizance against the petitioner/accused No.2 and another/accused No.1 for offence punishable under Section 78(iii) of the K.P. Act and registered case in C.C.No.18/2022 and issued summons to the petitioner/accused No.2 and another/accused No.1 by his order dated 11.01.2022. Thereafter, Accused Nos.1 and 2 appeared the said criminal case and now case is posted for recording of evidence of the prosecution witnesses. The

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NC: 2023:KHC-D:13323 CRL.P No. 101481 of 2023

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petitioner/accused No.2 has sought for quashing the proceedings against him in C.C.No.18/2022.

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Learned counsel for the petitioner would

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contend that the offence alleged against petitioner is under Section 78(iii) of the K.P. Act and it is noncognizable offence. The police have not obtained permission of the learned Magistrate to register case for non-cognizable offence and investigate the matter as required under Section 155 of Cr.P.C. He further contends that if permission of the learned Magistrate as required under Section 155 of Cr.P.C is not obtained, the proceedings against petitioner/accused No.2 is not sustainable. On that point he relied on the decision of this Court in the case of the Vaggeppa Gurulinga Jangaligi, Belagavi Vs State of Karnataka¹ . With this, he prayed to allow the petition.

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The petitioner has been arrayed as accused

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No.2 in FIR of crime No.331/2021 of Gangavathi Police

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1 2020 (2) AKR 177

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Station registered for offence punishable under Section 78(iii) of the K.P. Act. Charge sheet has been filed against this petitioner/accused No.2 for the said offence. The offence punishable under Section 78(iii) of the K.P. Act is non-cognizable offence. When the report is received by the SHO from the Police Inspector for commission of non cognizable offence, the SHO has to follow the mandatory provision prescribed under Section 155 (1) and (2) of Cr.P.C. Section 155 of Cr.P.C which deal with the procedure for investigation and for taking cognizance of non-cognizable offences reads as follows:

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“155. Information as to non-cognizable 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

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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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6. Therefore, when the SHO of the police station

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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

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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)

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of Cr.P.C. Unless, the police officer is permitted by an order of the jurisdictional Magistrate to investigate the

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non-cognizable offence, the police officer does not get jurisdiction to investigate the matter and file a final report or charge sheet.

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The SHO in this case received the report of the

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Police Inspector of Gangavathi Police Station and registered the FIR for offence punishable under Section 78(iii) of the K.P. Act in Ganagavathi Rural Police Station in crime No.331/2021 against this petitioner/accused No.2 and another/accused No.1. The report does not reveal that either the SHO or the Police Inspector having been obtained the permission of the learned Magistrate to register and investigate the case. The Gangavathi Rural Police have filed charge sheet against this petitioner/accused No.2 for offence punishable under Section 78(iii) of the K.P. Act. The learned Magistrate based on the charge sheet taken cognizance for offence punishable under Section 78(iii) of the K.P. Act by his order dated 11.01.2022 and order to register criminal case and accordingly, C.C.No.18/2022 is registered against this

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petitioner/accused No.2 and another/accused No.1. The learned Magistrate has not considered provisions of Section 155 of Cr.P.C. There is nothing on record to show that the SHO of Gangavathi Rural Police Station having referred to informant(Police Inspector) to the concerned Magistrate as required under Section 155(1) of Cr.P.C or obtained necessary order envisaged under Section 155(2) of Cr.P.C before embarking upon investigation. There is violation of the provisions of Section 155(1) and (2) of Cr.P.C.

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Under circumstances, the proceedings initiated against this petitioner/accused No.2 in C.C.No.18/2022 on the file of the Principal Civil Judge and J.M.F.C, Gangavathi are requires to be quashed so far as against this petitioner/accused No.2 is concerned. In the result, the following

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ORDER

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The proceedings in C.C.No.18/2022 on the file of the Principal Civil Judge and J.M.F.C, Gangavathi

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NC: 2023:KHC-D:13323 CRL.P No. 101481 of 2023

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are quashed so far as this petitioner/accused No.2 is

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concerned.

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