This bench allowed the criminal petition and quashed proceedings in CC No.530/2022, holding they were vitiated as non-cognizable offences under the Explosives Act were investigated without mandatory Magistrate permission.
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NC: 2023:KHC-D:12334 CRL.P No. 102733 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2023 BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 102733 OF 2023
BETWEEN:
SATISH MUNARA S/O KAILASH MUNARA, AGE. 49 YEARS, OCC. BUSINESS, R/O. AKSHYA ENCLAVE, KESHWAPUR, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580001.
… PETITIONER
(BY SRI. AVINASH M. ANGADI, ADVOCATE)
AND:
STATE OF KARNATAKA, THROUGH SHIRAHATTI POLICE STATION, SHIRAHATTI, R/BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580011.
… RESPONDENT
VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPIDate:2023.11.0413:40:08 +0530
(BY SRI. V.S. KALASURMATH, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.PC., SEEKING TO ALLOW THIS PETITION AND QUASH THE ENTIRE PROCEEDINGS IN CC NO.530/2022 REGISTERED BY THE SHIRAHATTI P S, SHIRAHATTI, FOR THE OFFENCE P/U/S 9B(1)(b) R/W 5 OF EXPLOSIVES ACT, PENDING THE FILE OF CIVIL JUDGE AND JMFC, LAXMESHWAR (SITTING AT SHIRAHATTI).
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in CC.No.530/2022 registered for offence punishable under Section 9B(1)(b) R/W 5 of the Explosives Act.
ORDER
Heard Shri Mohana Chandra.P., learned counsel appearing for the petitioners. The learned High Court Government Pleader is directed to accept notice for the respondent No.1-State and is heard in the matter.
2. The petitioners are before this Court calling in question the proceedings in C.C.No.511/2021, pending on the file of learned Civil Judge and JMFC Court,
NC: 2023:KHC-D:12334 CRL.P No. 102733 of 2023
Gudibande registered for the offences punishable under Section 9B of Explosives Act, 1884, which is a non-cognizable at the time when the offence was committed on 24.02.2021, in terms of what is seen in the first information report.
3. In the light of the fact that the said offence was non- cognizable, FIR could not have been registered against the petitioners on such offence, without at the outset seeking permission from the hands of the Magistrate.
4. It is an admitted fact, in the case at hand, that 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 Co-ordinate 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:
“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.
6. In view of the law laid down in the aforesaid decisions, the Police have taken prior permission from the jurisdictional Magistrate to investigate a non cognizable offence as required under Section 155(2) of
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Cr.P.C.
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.
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:
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.
ii) When the requisition is submitted by the informant to the
NC: 2023:KHC-D:12334 CRL.P No. 102733 of 2023
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.
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.
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 noncognizable offence.
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.
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
NC: 2023:KHC-D:12334 CRL.P No. 102733 of 2023
intimation as granted permission to investigate a non cognizable offence.
10. In Crime No.25/2020 of Halavagilu police station, Harapanahalli District, Ballari, the Police gave requisition and on the same requisition, the learned Magistrate has made endorsement as “permitted to register the case”.
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.”
5. In the light of the order passed by the Coordinate Bench of this Court (supra) and for the reasons aforementioned, the following:
ORDER
i) The Criminal Petition is allowed. ii) The proceedings in C.C.No.511/2021, pending on the file of learned Civil Judge and JMFC Court, Gudibande stand quashed qua the petitioners.
In view of disposal of the petition,
I.A.No.1/2021 does not survive for consideration. Accordingly, stands disposed.
I deem it appropriate to terminate the proceedings against the petitioner.
ORDER
(ii) The impugned proceedings in CC.NO.530/2022 pending on the file of Civil Judge and JMFC., Laxmeshwar (Sitting at Shirhatti) stands quashed.
Sd/JUDGE
VB
List No.: 1 Sl No.: 46
1 issue framed by the court
Whether criminal proceedings under charges involving non-cognizable offences without prior Magistrate permission are valid
Colour shows how this judgement treated each authority
Vaggeppa Gurulinga Jangaligi V/s. The State of KarnatakaRelied on¶32
Vaggeppa Gurulinga Jangaligi (Jangalagi) V/s. The State of Karnataka, reported in ILR 2020 KAR 630 · Who else cites this
Moin Basha Kurnooli V/s. The State of KarnatakaRelied on¶33
Moin Basha Kurnooli V/s. The State of Karnataka, reported in 2014 (4) KCCR 3355
Satish Munara
State of Karnataka
M. Nagaprasanna
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
