Allowed

Somalingappa v. the State of Karnataka

Karnataka HC26 May 2023CRL.P/5564/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition to quash proceedings under Section 171H IPC. The quashing was ordered because the Magistrate's permission to register the FIR was invalid as it only bore the endorsement 'permitted' without any application of mind.

What did the court decide?

The entire proceedings in C.C.No.15920/2022 pending before the XLII Addl. Chief Metropolitan Magistrate, Bengaluru, is quashed.

Somalingappa Vs the State of Karnataka — Election Law | Karnataka HC (2023)

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CRL.P No. 5564 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 5564 OF 2022

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BETWEEN:

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SOMALINGAPPA S/O LATE M SIDDAPPA AGED ABOUT 63 YEARS R/AT TEKKALAKOTE VILLAGE BALLARY DISTRICT BALLARY PRESENTLY MLA, NO. 92, SIRUGUPPA ASSEMBLY CONSTITENCY SIRUGUPPA BALLARY DISTRICT 583121

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…PETITIONER

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(BY SRI ANANDEESWARA D R., ADV.)

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

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AND:

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THE STATE OF KARNATAKA THROUGH SIRUGUPPA POLICE STATION, BALLARI, REP BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING BENGALURU 560001

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BASAVARAJAIAH M S/o LATE GANGADHARAIAH FLYING SQUAD AS SPECIAL EXECUTIVE MAGISTRATE,

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NO.92, SIRUGUPPA ASSEMBLY

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CRL.P No. 5564 of 2022

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CONSTITUENCY, BELLARI, KARNATAKA - 583121

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…RESPONDENTS

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(BY SRI MAHESH SHETTY, ADV.)

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THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.15920/2022 PENDING ON THE FILE OF THE XLII A.C.M.M., AT BENGALURU FOR THE OFFENCE P/U/S 171-H OF THE IPC IN SO FAR AS THE PETITIONER IS CONCERNED. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner is before this Court seeking quashment of the proceedings in C.C.No.15920/2022 registered for the offence punishable under Section 171H of the IPC.

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Heard the learned Counsel Sri Anandeeswara appearing for the petitioner and the learned HCGP for respondent no.1.

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Brief facts that leads the petitioner to this Court in subject petition as projected by the prosecution are as follows:

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On 21.04.2018, the petitioner files his nomination in the

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Assembly Constituency of Siraguppa. The allegation is that the petitioner has reached the office where nomination had to filed along with vehicles which were unauthorized. It is on basis a

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CRL.P No. 5564 of 2022

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crime comes to be registered against the petitioner on 23.04.2018 for the offence punishable under Section 171H of the IPC. The police after investigation filed a charge sheet against the petitioner for the said offence. It is filing of the charge sheet that drives the petitioner to this Court in the subject petition.

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Learned Counsel appearing for the petitioner would contend that Section 171H is a non-cognizable offence and on a non-cognizable offence if the crime has to be registered, it has to be with the permission of the learned Magistrate. Though the permission in the case at hand is secured, the grant of permission suffers from want of application of mind as it does not bear any reasons as to why the permission for granted for registration of a crime.

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On the other hand, the learned HCGP would seek to defend the action of registration of the crime and the subsequent filing of the charge sheet notwithstanding the fact that the permission granted by the learned Magistrate does not bear any application of mind.

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CRL.P No. 5564 of 2022

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

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The afore narrated facts are not in dispute. They lie in a narrow compass. The allegation against the petitioner is under Section 171H of the IPC. Section 171H of the IPC reads as follows:

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"171H. Illegal payments in connection with an election.- Whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:

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Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."

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(emphasis supplied)

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CRL.P No. 5564 of 2022

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Section 171H is admittedly a non-cognizable offence and for a non-cognizable offence permission under sub-section (2) of Section 155 of Cr.PC is imperative. The learned Magistrate while according such permission has to apply his mind for permitting of an FIR, is the law that is laid down by this Court in plethora of judgments. Section 155 of Cr.PC reads as follows:

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"155. Information as to non-cognizable cases and investigation of such cases (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 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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CRL.P No. 5564 of 2022

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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 non-cognizable."

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In the case at hand, the Station House Officer communicates to the learned Magistrate seeking permission on 22.04.2018. The learned Magistrate on the said communication endorses "permitted". Such endorsements issued by the learned Magistrates granting permission to register FIR has been held to be illegal in plethora of judgments. The latest of which is in the case of VAGGEPPA GURULINGA JANGALIGI

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VS THE STATE OF KARNATAKA - ILR 2020 KARNATAKA

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630 (Paragraphs 3 to 23). The judgment of the coordinate bench in Vaggeppa's case supra follows the earlier law that is laid down which was the law even prior to the date of registration of the FIR on 22.04.2018.

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Therefore, on this very ground that the permission granted by the learned Magistrate suffered from want of application of mind as there is not even a semblance of such application of mind in the words "permitted". Any further action taken against the petitioner would all tumble down.

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CRL.P No. 5564 of 2022

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For the aforesaid reasons and on the aforesaid ground

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in the light of the law laid down by this Court, I deem it appropriate to pass the following order:

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The criminal petition is allowed. The entire proceedings in C.C.No.15920/2022 pending on the file of XLII Addl. Chief Metropolitan Magistrate, Bengaluru, stands

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quashed.

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Sd/JUDGE

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Somalingappa v. the State of Karnataka

Case brief

What is this about?

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Somalingappa v. the State of Karnataka

Case brief

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