Allowed

Shashikumar @ Sashi v. the State of Karnataka

Karnataka HC19 Sept 2023CRL.P/7483/2023

Case brief

AI extract

What is this about?

This court allowed a criminal petition under Section 482 Cr.P.C. to quash FIR and proceedings in C.C.No.797/2019. The court held that investigation into non-cognizable offences without a formal magistrate order under Section 155(2) Cr.P.C., evidenced only by a 'Permitted' stamp, was illegal, and empowered the trial court to drop proceedings under Section 258 Cr.P.C. before evidence recording.

What did the court decide?

The proceedings in C.C. No.797/2019 and the impugned orders by ACMM and Special Judge are quashed insofar as the petitioner/accused No.1 is concerned.

Shashikumar @ Sashi Vs the State of… — Constitutional and Fundamental Rights | Karnataka HC (2023)

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NC: 2023:KHC:33771 CRL.P No. 7483 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^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. 7483 OF 2023

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BETWEEN:

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SHASHIKUMAR @ SASHI S/O KUMAR RAJAN, AGED ABOUT 49 YEARS, R/AT NO.59, SRI ANNUGRAHA RESIDENCY, RAKYA PALAYAM, THIRUPUR, TAMIL NADU-600001.

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DURAI S/O PERUMAL, AGED ABOUT 42 YEARS, R/AT PAGAL PATTI VILLAGE AND POST, HOMALURU TALUK, SALAM, TAMIL NADU-600001.

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… PETITIONERS

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(BY SRI. KARTHIK .N., ADVOCATE)

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AND:

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL

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Date: 2023.09.22 10:49:44 +0530

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THE STATE OF KARNATAKA, BY SADASHIVANAGAR POLICE STATION, R/BY SPP OFFICE, HIGH COURT BUILDING, BANGALORE-560001.

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V. CHANDRAPPA, AGED ABOUT 60 YEARS, S/O UNKNOWN, WORKING AS AEE, PLANNING CENTRAL-2, BANGALORE CITY, KARNATAKA-560100.

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… RESPONDENTS

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(BY SMT. YASHODHA K.P., HCGP)

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THIS CRL.P FILED U/S 482 CR.PC SEEKING TO QUASH THE FIR IN CR.NO.80/2018 DATED 07.05.2018 REGISTERED BY THE 1^ST RESPONDENT-SADASHIVANAGAR POLICE STATION FOR THE OFFENCE P/U/S 171E, 171B R/W 149 OF IPC, AND 123 OF REPRESENTATION OF PEOPLE ACT, PENDING ON THE FILE OF THE

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Ld.LXXXI ACC AND SJ BENGALURU CITY (CCH-22), PURSUANT TO THE COMPLAINT DATED 07.05.2018, CHARGE SHEET DATED 19.12.2018 IN C.C.NO.797/2019 AND ALL FURTHER PROCEEDINGS IN C.C.NO.797/2019, PRODUCED AS ANNEXURE-A, B, C AND E RESPECTIVELY.

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

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ORDER

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The petitioner is before this Court calling in

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question the proceedings in C.C. No.797/2019 for the offence punishable under Section 171E, 171B read with Section 149 of the IPC and Section 123 of the

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Representation of People Act.

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Learned counsel for the petitioner submits

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that the issue in the lis stands covered in a judgment rendered by the Co-ordinate Bench in Criminal Petition No.8219/2019 disposed of on 18.03.2020. The Coordinate Bench has held as follows:

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“Petitioner has sought to quash the FIR and the charge sheet filed against him in C.C.No.797/2019, arising out of Crime No.80/2018, for the alleged offences punishable under sections 171E, 171B read with 149 of IPC and section 123 of the Representation of the People Act (hereinafter referred to as “RP Act”)

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and to quash the order of cognizance dated 05.01.2019 passed by learned VII ACMM, Bengaluru and the order dated 21.11.2019 passed by learned LXXXI A.C.C. & S.J., Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) rejecting the application filed by the petitioner herein (accused No.1) and accused Nos.2 to 7 and 9 under section 258 of Cr.P.C. Petitioner is shown as accused No.1 in the charge sheet.

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2. Heard Sri.Ravi B.Naik, learned Senior Counsel appearing for petitioner and Sri.V.S.Hegde, learned SPP-II.

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3(i) The contention of Sri.Ravi B.Naik, learned Senior Counsel appearing for petitioner is that the offences alleged against the petitioner are noncognizable offences. That by virtue of Section 155(2) Cr.P.C., no police officer was empowered to investigate into these allegations without prior order of the learned Magistrate having power to try such cases. In the instant case, FIR was registered and investigation was commenced without authorization by the competent Magistrate. Provisions of section 155(2) of Cr.P.C., are mandatory in nature and failure to comply with the same entire proceedings get vitiated and therefore, submission of the charge sheet

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and consequent cognizance taken by the learned Magistrate is an incurable illegality which has vitiated the entire proceedings. Under the said circumstances, learned Special Judge ought to have dropped the proceedings in exercise of the powers under section 258 of Cr.P.C.

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3(ii) In support of his submission, learned Senior Counsel has referred to the decision of this court in Criminal Petition No.100630/2018 and connected matters decided on 25.04.2018 wherein following the decision rendered by the Coordinate Bench of this Court in MOIN BASHA KURNOOLI vs. THE STATE OF KARNATAKA by Cowl Bazaar Police Station, Bellary reported in 2014(4) KCCR 3355, it is held that, “the provision of section 155(2) of Cr.P.C. is mandatory in nature and failure to comply with the said mandatory requirement is an incurable defect amounting to illegality vitiating the entire proceedings.” In the said decision, it is also observed that, “failure to refer the informant as required under section 155(1) Cr.P.C. or obtaining a prior order as envisaged under section 155(2) Cr.P.C., before embarking upon investigation into a non-cognizable offence is a blatant violation of the provisions of law warranting quashment of the proceedings.”

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3(iii) Further learned Senior Counsel has referred to another decision of this Court in W.P.No.102248/2016 (PRAVEEN BASAVANNEPPA SHIVALLI vs. THE STATE OF KARNATAKA & Others) wherein it is held that, making an entry “permitted” without passing an order in terms of sub-section (2) of section 155 Cr.P.C., the investigation and the consequential charge sheet filed in respect of the noncognizable offence and taking cognizance of those offences by the learned Magistrate is absolutely illegal entailing quashment of the proceedings.

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3(iv) On the question of power of the Special Court and/or learned Magistrate to drop the proceedings under section 258 of Cr.P.C., even after framing the charge or recording substance of the accusation is concerned, learned Senior Counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of JOHN THOMAS vs. Dr.K.JAGADEESAN (2001) 6 SCC 30.

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4. Per contra, learned SPP-II arguing on behalf of respondent No.1 – State submitted that in the decisions referred to by learned Senior Counsel on the applicability of section 155 Cr.P.C. is concerned, this Court has not taken into consideration the effect of section 460 of Cr.P.C. which prescribes that an order passed under section 155 Cr.P.C., directing the police to investigate the offence by the Magistrate is a mere irregularity and does not vitiate the proceedings

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and hence the decisions relied on by learned Senior Counsel for the petitioner do not furnish a ground to quash the proceedings. Further referring to the endorsement made by learned Magistrate on the requisition submitted by the police, learned SPP-II emphasized that the requisite permission was obtained before registration of the FIR and the said fact has also been taken note of by the Special Court while dismissing the application filed by the petitioner and other accused persons under section 258 of Cr.P.C., and as such there is reason to quash the proceedings. Further defending the impugned order, learned SPP-II pointed out that the Special Court having recorded the plea of petitioner and having set down the matter for recording evidence, the only course open for the Special Court was to proceed with trial and either acquit or convict the accused and it had no power to discharge the accused and therefore, no fault could be found with the impugned order warranting interference by this Court under section 482 Cr.P.C.

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5. In the light of the contentions urged, two questions emerge for consideration namely,

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(1) Whether the failure to comply with the requirements of section 155(2) of Cr.P.C. is an incurable defect amounting to illegality vitiating the entire proceedings?

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(2) Whether the Magistrate has power to drop proceedings under section 258 of Cr.P.C. in a summons case after recording the substance of

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accusations?

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6. In order to answer the above questions, it may be necessary to note the outline facts of the case leading to initiation of criminal action against the petitioner. According to the prosecution, on 06.05.2018, when the complainant was monitoring the election for Malleswaram constituency, he received credible information that a Bharat Benz vehicle bearing registration No.TN.39.CD.7267 was chased from R.R. Nagar and was made to halt at Ashwathnagar, 19 kms. away from R.R.Nagar. The said vehicle was surrounded by public. Complainant took assistance of the police and led the vehicle along with the driver to Sadashivanagar Police Station. The vehicle was found with 5018 T-Shirts printed with photographs of accused No.1 along with Congress Party Symbol and also contained 23,393 half-pants with bills pertaining to the same.

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7. On submission of the charge sheet, learned VII ACMM, Bengaluru took cognizance of the offences under sections 171E, 171B read with 149 of IPC and section 123 of RP Act. Since the petitioner herein was a sitting MLA, in view of notification issued by the High Court of Karnataka, records were transmitted to the Court of Special Judge and the case was numbered as Spl.C.C.No.398 of 2019 and summons were issued to accused Nos.1 to 9. On 21.09.2019, substance of accusations under sections 171B, 171E

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read with 149 of IPC and section 123 of RP Act were framed and read over to the accused. Accused did not plead guilty and case was posted for recording of evidence on 10.10.2019. At that stage, petitioner herein/accused No.1 through his counsel and accused Nos.2 to 7 and 9 filed an application under section 258 of Cr.P.C. seeking to drop the proceedings. The said application was filed mainly on the ground that there was no compliance of section 155 of Cr.P.C. and therefore, very prosecution of the petitioner was illegal and without authority of law. However, by order dated 21.11.2019, the Special Court exclusively dealing with criminal cases related to elected MPs./MLAs in the State of Karnataka rejected the application and proceeded with the matter.

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8. Undeniably, the offences alleged against the petitioner are non-cognizable offences. Section 155 of the Cr.P.C. deals with the procedure for investigation and cognizance of non-cognizable cases. It reads as under:

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“Section 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 non- cognizable 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,

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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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(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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As per the above provision, when an Officer-in-charge of the police station received the information as to the commission of non-cognizable offence, (i) he shall enter or cause to enter 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 non- cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.

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9. A perusal of the records reveal that in the instant case, respondent No.1 – Police have utterly failed to comply with the requirements laid down in Sections 155(1) and 155(2) of Cr.P.C. There is nothing in the FIR or in the requisition submitted to

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the learned Magistrate to indicate that, on receipt of information, respondent No.1 – Police recorded the substance of information as mandated. There is also nothing on record to show that the respondent referred the informant to the concerned Magistrate as required under section 155(1) of Cr.P.C. and obtained necessary order as envisaged under section 155(2) Cr.P.C. before embarking upon investigation. Thus, on the face of it, the respondent No.1 – Police has committed blatant violation of the provisions of sections 155(1) and 155(2) of Cr.P.C.

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10. In STATE OF HARYANA vs. BHAJAN LAL (1992) 1 SCC Supp. 535, the Constitution Bench of the Hon’ble Supreme Court has laid down the circumstance in which proceedings could be quashed under Section 482 Cr.P.C. Sl.No.4 thereof provides that:

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“(4) Where, the allegations in the FIR do not constitute a cognizable offence, but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.”

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11. There is no dispute with regard to the fact that in the instant case, all the material allegations made in the FIR constituted only non-cognizable offence. Under the said circumstances, in the absence of an order of Magistrate as contemplated under section 155(2) of Cr.P.C., no investigation was permissible under law. The contention of the learned SPP-II that prior permission of learned Magistrate was obtained before embarking upon the investigation does not salvage the situation. I have

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gone through the said requisition and the endorsement made therein. By no stretch of imagination, such an endorsement can be construed as an “order” within the meaning of section 155(2) Cr.P.C. It is noticed that in the margin of the requisition a rubber stamp is affixed reading ‘Permitted’, and the Magistrate has subscribed his initial and date underneath the stamped portion. Considering the identical endorsement made in the requisition submitted to the learned Magistrate, this Court in AVINASH PRABHU & Others vs. THE STATE OF KARNATAKA, Criminal Petition No.563/2013 dated 28.05.2019 has held, in para 3, as under:

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“3. Implication of such an endorsement has been considered by this Court in PRAVEEN BASAVANNEPPA SHIVALLI vs. THE STATE OF KARNATAKA and others in W.P.No.102248/2016 dated 11.07.2016 and it has been held that such an endorsement is not ‘an order’ in the eye of law and in view of the prohibition contained in sub-section (2) of Section 155 Cr.P.C., the investigation made and the consequent charge- sheet filed by the investigating agency is illegal and cannot be sustained.”

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These defects, therefore, completely vitiate the proceeding initiated against the petitioner. Nonadherence of the statutory requirements is one of the grounds to quash the proceedings as held in Bhajan Lal’s case referred to supra and therefore, the argument of learned SPP-II that the alleged defect is only a curable defect and is protected under section 460 of Cr.P.C. has no legs to stand.

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12. Section 460 of Cr.P.C. saves the orders

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passed by a Magistrate not empowered by law to do any of the things enumerated in sub-sections (a) to (i) therein. In the instant case, it is not the case of either of the parties that the learned Magistrate who made the endorsement as “permitted” was not empowered by law to pass such an order. On the other hand, the specific case of the petitioner is that the said endorsement does not amount to an “order within the meaning of section 155 of Cr.P.C.” and does not satisfy the mandatory requirements thereof. This endorsement, on the face of it, reflects total nonapplication of mind by the learned Magistrate. Section 460 of Cr.P.C. does not apply to the impugned order.

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13. The other circumstance noted in the records produced by the petitioner go to show that the requisition seeking permission of the Magistrate was submitted only after the commencement of investigation. This is evident from the fact that the complaint was received by the SHO at 5.30 a.m. on 07.05.2018 and it is noted therein that along with the complaint, the properties subjected to PF.No.32/2018 were produced before the SHO. But the averments made in the complaint indicate that the information of the alleged offence was received by the complainant at 11.00 p.m. on 06.05.2018 and immediately, he proceeded to the spot and found the container with the offending material and the said container was

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brought to the Police Station and the articles alleged to have been kept in the container were seized under a panchanama. In the panchanama it is specifically noted that the panchanama was prepared between 00 hours and 5.00 a.m. If this timing is taken into consideration, in all probability, the properties could have been subjected to property form only after 5.00 a.m. and only thereafter, same could have been produced before the learned Magistrate seeking his permission to retain the same. But the FIR is seen to have been registered at 4.00 p.m. on 07.05.2018. These facts therefore indicate that the requisition was made to the learned Magistrate only after 5.00 p.m. whereas investigation had commenced at 11.00 p.m. on 06.05.2018 and the panchanama was prepared between 00.00 hours and 05.00 a.m. on 07.05.2018, much before the submission of the requisition seeking permission of the learned Magistrate. Therefore, both on question of fact as well as on law, the impugned proceedings registered against the petitioner/accused No.1 being illegal and without authority of law, are liable to be quashed.

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14. Coming to the applicability of section 258 of Cr.P.C. to the proceedings in a summons case is concerned, the law is now well settled by the authoritative pronouncement of the Hon’ble Supreme Court in the case of JOHN THOMAS, referred to supra, in para 7 whereof, it is held as under:-

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7. The appellant questioned the aforesaid view of the learned Single Judge on the strength of Section 258 of the Code of Criminal

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Procedure (for short “the Code”). It must be pointed out that the offence under Section 500 IPC is triable as a summons case in accordance with the provisions contained in Chapter XX of the Code. Sections 251 to 257 of that Chapter deal with the steps to be adopted from the commencement up to culmination of the proceedings in summons cases. One of the normal rules in summons cases is that once trial has started, it should reach its normal culmination. But Section 258 is included in that Chapter in the form of an exception to the aforesaid normal progress chart of the trial in summons cases.

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15. Learned Trial Judge has declined to drop the proceedings under section 258 of Cr.P.C. mainly on the ground that by the time application was made by the petitioner/accused under section 258 Cr.P.C., the substance of accusation was already framed against the accused and the matter was set down for trial. Trial Court was of the opinion that, “if stoppage of proceedings is effected after recording of evidence of the principal witnesses, the Magistrate has to pronounce the judgment of acquittal and in any other case, the Magistrate can release the accused, and such a release has the effect of discharging the accused.” Further the trial Judge has observed that, “Chapter 20 does not make any provisions for discharge of the accused but section 258 very clearly specified that at any stage of the trial, the Magistrate may stop the proceedings. In summons case there cannot be an order dropping proceedings and the

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same is dehors the Code.”

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16. This view is contrary to the law laid down by the Hon’ble Supreme Court in the decision referred above wherein considering the scope of section 258 of Cr.P.C., the Hon’ble Supreme Court in para 8 has held that,

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8. … The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of the court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.

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17. Undisputedly, in the instant case, proceedings were instituted against the petitioner otherwise than on complaint. As on the date of making application, no witness was examined before the Trial Court. Under the said circumstances, the ratio laid down in the above decision squarely applied to the facts of the case and the learned trial Judge was empowered to drop the proceedings even at midway stage before commencement of recording the evidence. In any case, the impugned proceedings have been initiated against the petitioner in utter violation of section 155 of Code and the registration of FIR and the subsequent investigation undertaken by the respondent and the submission of charge sheet being without jurisdiction and without authority of law cannot be proceeded with. Resultantly, the

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impugned proceedings are liable to be quashed.

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Accordingly, petition is allowed. The impugned proceedings in C.C.No.797/2019 (arising out of Crime No.80/2018) and the order dated 05.01.2019 passed by learned VII ACMM, Bengaluru and the order dated 21.11.2019 passed by learned LXXXI A.C.C. & S.J., Bengaluru (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) are quashed only insofar as petitioner/accused No.1 – Sri.Munirathna is concerned.”

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