Allowed

Girish v. the State of Karnataka

Karnataka HC9 Feb 2023CRL.P/1023/2023

Case brief

AI extract

What is this about?

Criminal Petitioners challenged proceedings in C.C. No. 329/2022 for offences under the Karnataka Police Act. The High Court quashed the proceedings after an accused coordinate bench held that investigating non-cognizable offences without prior Magistrate permission under Cr.P.C. Section 155(2) is an incurable illegality.

What did the court decide?

The proceedings in C.C. No. 329/2022 pending before the Principal Civil Judge and JMFC Court at Channarayapatna, Hassan District, qua the petitioners are quashed.

Girish Vs the State of Karnataka — Constitutional and Fundamental Rights | Karnataka HC (2023)

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1 - CRL.P No. 1023 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9^TH DAY OF FEBRUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 1023 OF 2023

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BETWEEN:

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GIRISH S/O. RAJANNA, AGED ABOUT 42 YEARS, R/O N. BINDENAHALLI VILLAGE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573 116.

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PUTTEGOWDA B.B., S/O BOREGOWDA, AGED ABOUT 42 YEARS, R/O N. BINDENAHALLI VILLAGE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT -573 116.

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SHIVARAJ,

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

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S/O LATE NANJEGOWDA, AGED ABOUT 38 YEARS, R/O N. BINDENAHALLI VILLAGE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT- 573 116.

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RANGASWAMY K.S., S/O SHIVARAMEGOWDA, AGED ABOUT 47 YEARS, R/O KUMBENAHALLI VILLAGE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT -573 116.

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2 - CRL.P No. 1023 of 2023

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BABU S.P., S/O PUTTASWAMYGOWDA @ JAVAREGOWDA, AGED ABOUT 37 YEARS, R/O GAYITHRI EXTENSION, RAGHAVENDRA SAW MILL ROAD, CHANNARAYAPATNA TOWN- 573 116.

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MALLESH I.M., S/O MANJAPPA, AGED ABOUT 46 YEARS, R/O. IYANORAHALLI VILLAGE, KIKKERI HOBLI, K.R.PETE TALUK, MANDYA DISTRICT -577 133.

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GOPAL T.R @ LOKI, S/O RANGEGOWDA, AGED ABOUT 39 YEARS, R/O CHOWLAGALA VILLAGE, DANDIGANAHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT -573 116.

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GANGADHARA, S/O RAMEGOWDA, AGED ABOUT 47 YEARS, R/O NETTEKERE VILLAGE, NUGGEHALLI HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT -573 116.

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ABHISHEKA T.M @ ABHI, S/O LATE MAYIGOWDA, DIVISION KEB QUATRSS BEHIND, CHANNARAYAPATNA TOWN -573 116.

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…PETITIONERS

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(BY SRI. GIRISH B.BALADARE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY CHANNARAYAPATNA

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3 - CRL.P No. 1023 of 2023

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TOWN POLICE STATION, CHANNARAYAPATNA, HASSAN DISTRICT,

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REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE -560 001.

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…RESPONDENT

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(BY SRI. K. NAGESHWARAPPA, HCGP)

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THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE CHARGE SHEET FILED AGAINST PETITIONERS IN CR.NO.26/2022 BY THE CHANNARAYAPATNA CITY POLICE, FOR THE OFFENCE P/U/S 79, 80 OF THE KARNATAKA POLICE ACT, PENDING ON THE FILE OF PRL.CIVIL JUDGE AND J.M.F.C COURT AT CHAANNARAAPATNA, HASSAN DISTRICT IN C.C.NO.329/2022.

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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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Heard Sri. Girish B. Baladare, learned counsel appearing for the petitioners and Sri. K. Nageshwarappa, learned counsel appearing for the respondent.

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The petitioners are before this Court calling in question the proceedings in C.C.No.329/2022, pending on the

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4 - CRL.P No. 1023 of 2023

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file of the Principal Civil Judge and JMFC Court, Channarayapatna, Hassan District, registered for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 ('Act' for short), which are non-cognizable offences.

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This Court concerning accused Nos.10 to 16 in the very same crime, crime No.26/2022 for the offences punishable under Section 79 and 80 of the Act had passed the following order:

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" 2. The petitioners are before this Court calling in question the proceedings in C.C.No.329/2022, pending on the file of the Principal Civil Judge and JMFC Court, Channarayapatna, Hassan District, registered for the offences punishable under Sections 79 and 80 of the Karnataka Police Act, 1963, which are non-cognizable offences.

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3. In the light of the fact that the said offences were non-cognizable, FIR could not have been registered against the petitioners on such offences, without at the outset seeking permission from the hands of the learned Magistrate under Section 155(2) of the Cr.P.C.

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4. It is an admitted fact that in the case at hand, no such permission is sought from the Magistrate to register the FIR or conduct investigation. The issue stands covered by the judgment rendered by the Coordinate Bench of this Court in Crl.P.No.101632/2021 and connected cases , disposed of on 21.9.2021 , wherein this Court has held as follows:

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CRL.P No. 1023 of 2023

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“4. The main ground of attack by the petitioner in respective petitions is that the offence alleged is under Section 78(3) of K.P. Act. 1963 and it is a non cognizable offence. Before proceeding to investigate the offence the Police ought to have taken prior permission from the concerned court as required under Section 155(2) of Cr.P.C. Therefore, there is no compliance of Section 155(2) of Cr.P.C. It is further contended that even if the permission from the Magistrate was obtained, it is not in accordance with the guidelines issued in Vaggeppa Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in ILR 2020 KAR 630 . Learned HCGP has contended that in some of the cases, the Police have obtained permission of the concerned court and then investigated the matter and filed the charge sheet. He further contended that the Police have taken the care to comply mandatory requirements and then only they have proceeded with the matter and ultimately filed the charge sheet.

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5. Co-ordinate Bench of this court in the case of Moin Basha Kurnooli V/s. The State of Karnataka, By Cowl Bazaar Police Station , reported in 2014 (4) KCCR 3355 elaborately considered the provisions of Section 155 (2) and 155(3) of Karnataka Police Act and held that offence under Section 78(3) of K.P. Act is a non cognizable offence. Investigation of cases under Section 78(3) of K.P. Act and all further proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate under section 155(2) of Cr.P.C.

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6. In view of the law laid down in the aforesaid decisions, the Police have taken prior permission from the jurisdictional Magistrate to

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CRL.P No. 1023 of 2023

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investigate a non cognizable offence as required under Section 155(2) of Cr.P.C.

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7. In crime No.151/2020 of Ranebennur Rural Police station, the FIR came to be registered for the offence under Sections 78(3) of K.P. Act and Section 420 of IPC and charge sheet has been filed only for the offence under Section 78(3) of K.P. Act. Section 420 of IPC is invoked only to get over requirement of prior permission of the Magistrate as contemplated under Section 155(2) of Cr.P.C. The complaint does not contain any allegation to attract ingredients of Section 420 of IPC. There is nothing in the FIR to indicate that any member of the public had complained of cheating by the petitioner or other accused persons named in the FIR. In the said crime No.151/2020 the Police have not obtained permission of the jurisdictional Magistrate as contemplated under Section 155(2) of Cr.P.C. Therefore, the prosecution of the petitioner for the alleged offence is an abuse of process of court.

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8. The coordinate Bench of this court in the case of Vaggeppa Gurulinga Jangaligi (supra) after elaborately considering Section 155(1) and (2) of Cr.P.C. and Chapter V Rule 1 of Karnataka Criminal Rules Practice, 1968 has issued guidelines to be followed by judicial Magistrate. The said guidelines are as under:

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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

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CRL.P No. 1023 of 2023

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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 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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9. In Crime No.93/2020 of Guttal Police Station the Police gave requisition seeking permission to investigate a non cognizable offence and the learned Magistrate on the same day has issued intimation as granted permission to investigate a non cognizable offence.

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10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave

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8 - CRL.P No. 1023 of 2023

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requisition and on the same requisition, the learned Magistrate has made endorsement as “permitted to register the case”.

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11. On looking to the said aspects, it is clear that the learned Magistrate has not followed the guidelines laid down in Vaggeppa case (supra). By looking to the said endorsement, there is no application of judicious mind by the learned Magistrate. Under the circumstances, the proceedings initiated against the petitioner in the following cases cannot sustain in law and accordingly, they are quashed.”

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5. In the light of the order passed by the Co-

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ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:

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ORDER

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i) The Criminal Petition is allowed.

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ii) The proceedings in C.C.No.329/2022, pending on the file of the Principal Civil Judge and JMFC Court at Channarayapatna, Hassan District qua the petitioners."

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In the light of the order passed qua accused Nos.10

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to 16 and the present petitioners - accused Nos.1 to 9 would be entitled to the same relief that is granted in the aforesaid case.

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For the aforesaid reasons, the following:

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ORDER

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i) The Criminal Petition is allowed.

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CRL.P No. 1023 of 2023

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ii) The proceedings in C.C.No.329/2022, pending on the file of the Principal Civil Judge and JMFC Court at Channarayapatna, Hassan District qua the petitioners."

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In view of the disposal of petition, IA does not survive for

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consideration.

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Sd/JUDGE

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Girish v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Girish v. the State of Karnataka

Case brief

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