Allowed

Rahid Pasha v. State by Srirangapatna Ps

Karnataka HC1 Jun 2023WP/4762/2023

Case brief

AI extract

What is this about?

High Court allowed a writ petition seeking quashing of criminal proceedings under Sections 143, 144, 147, 188 and 149 IPC and u/s 108 of Karnataka Police Act 1963. Relying on a coordinate bench judgment, the Court dismissed the gazette

What did the court decide?

Allowed Writ Petition No. 4762 of 2023. Quashed the FIR, Charge Sheet, Cognizance Order and all pending criminal proceedings.

Rahid Pasha Vs State by Srirangapatna Ps — Quashing and FIR | Karnataka HC (2023)

¶1

¶2

WP No. 4762 of 2023

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 1^ST DAY OF JUNE, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 4762 OF 2023 (GM-RES)

¶7

BETWEEN:

¶8

RAHID PASHA,

¶9

S/O MAKUBULA PASHA, AGED ABOUT 30 YEARS, R/AT NO.2911/ABN STREET, MANDI MOHALLA, MYSORE – 570 001.

¶10

JAVED PASHA, S/O MUNAVAR PASHA, AGED ABOUT 31 YEARS, R/AT NO.3211/4, 9^th CROSS CV RASTE, MYSORE - 570 015.

¶11

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

¶12

NASIRODDINA @ NASIRUDDIN, S/O JASIMUDDIN, AGED ABOUT 29 YEARS, R/AT NO.453/1, 11^th CROSS, UDAYAGIRI, MYSORE CITY, MYSORE – 570 007.

¶13

SIDDIK,

¶14

S/O RIYAZ AHAMADA, AGED ABOUT 26 YEARS, R/AT MASIDE BEEDI HULLAHALLI, NANJANAGOOD ROAD, MYSORE – 571 301.

¶15

¶16

WP No. 4762 of 2023

¶17

KADIM,

¶18

S/O SHIBEER AHAMAD, AGED ABOUT 32 YEARS, R/AT MASIDE BEEDI HULLAHALLI, NANJANGOOD ROAD, MYSORE – 571 301.

¶19

MUBAARAKA KHANA @ MUBARAK KHAN, S/ BABU H K., AGED ABOUT 34 YEARS, R/AT NO.2613, 2^nd CROSS, KUMARAGERI PULLAKESI ROAD, MANDI MOHALLA, MYSORE – 570 001.

¶20

FARUK KHAN, S/O PAYAZA KHANA @ FAYAZA KHAN, AGED ABOUT 38 YEARS, R/AT NO.37, 7^th CROSS, HAJIJA SET NAGARA, MYSORE – 570 001.

¶21

MAHAMADA ASALM @ MOHAMMED ASLAM, S/O EKABALA AHAMADA, AGED ABOUT 41 YEARS, R/AT NO.846, AJIJA SET NAGAR, I CROSS, MYSORE – 570 001.

¶22

SIKHANDARA H.P. @ SIKHANDER H.P., S/O PACHACHARA, AGED ABOUT 38 YEARS, R/AT NO.416, 5^th CROSS,

¶23

¶24

WP No. 4762 of 2023

¶25

2^nd MAIN RAJEENAGAR, MYSORE – 560 010.

¶26

…PETITIONERS

¶27

(BY SRI. MOHAMMED TAHIR, ADVOCATE)

¶28

AND:

¶29

STATE BY SRIRANGAPATNA PS., REPRESENTED BY PUBLIC PROSECUTOR, OFFICE AT ADVOCATE GENERAL OFFICE, HIGH COURT COMPLEX, OPP. VIDHANA SOUDHA, BANGALORE – 560 001.

¶30

SATHISH, AGED ABOUT 44 YEARS, RPI, DAR, MANDYA - 571 426.

¶31

…RESPONDENTS

¶32

(BY SMT.K.P.YASHODA, HCGP FOR R1)

¶33

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE COGNIZANCE ORDER DATED 31.01.2019, IN CC NO.657/2018 UNDER SECTION 143, 144, 147, 188 AND 149 OF IPC AND U/S 108 OF KARNATAKA POLICE ACT 1963, PASSED BY THE HONBLE ADDL. CIVIL JUDGE AND JMFC SRIRANGAPATTANA PRESENT AT ANNX-D. WHEREIN THE PETITIONERS ARE ARRAYED AS ACCUSED NO. 3, 4, 10, 17, 22, 24, 30, 36 AND 39 RESPECTIVELY AND ETC.,

¶34

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

¶35

¶36

WP No. 4762 of 2023

¶37

ORDER

¶38

Heard Sri. Mohammed Tahir, learned counsel appearing for the petitioners and Smt. MK.P. Yashoda, the learned HCGP appearing for the respondents.

¶39

The petitioners are before this Court, seeking for the following prayers:

¶40

"1. To set aside the Cognizance order dated 31.01.2019 NO.657/2018 in CC No.657/2018 under section 143, 144, 147, 188 and 149of IPC and u/s 108 of Karnataka Police Act 1963, passed by the HON'BLE ADDL CIVIL JUDGE AND JMFC SRIRANGAPATTANA, present at Annexure-D . Wherein the petitioners are arrayed as accused No.3,4,10,17,22,24,30,36 and 39 respectively.

¶41

2. Consequently, quash the charge sheet dated 08.10.2018 filed by the respondent police for the offences under section 143, 144, 147, 188, 149 of IPC and u/s 108 of Karnataka Police Act 1963, present at Annexure-C arising out of the Crime NO.333/2017 registered by the Srirangapatna PS same is pending as CC NO.657/2018 in the files of HON'BLE ADDL CIVIL JUDGE AND JMFC SRIRANGAPATTANA wherein the petitioners are arrayed as accused No.3, 4, 10, 17, 22, 24, 30, 36 and 39 and respectively.

¶42

3. Pass any other order which this Hon'ble Court deems fit by considering the facts of this court, in the interest of justice and equity."

¶43

The learned counsel appearing for the petitioners

¶44

would submit that the issue in the lis stands covered by the judgment rendered by this Court in the case of FAIROZ ULLA

¶45

¶46

WP No. 4762 of 2023

¶47

SHARIFF @ SHARIFF AND OTHERS Vs. STATE BY AND

¶48

OTHER.¹ , this Court has held as follows:

¶49

"Heard Sri.Mohammed Tahir, learned counsel appearing for the petitioners and Sri. K.S.Abhijith, the learned High Court Government Pleader appearing for respondent No.1.

¶50

2. The petitioners are before this Court calling in question the proceedings in Crime No.103/2019, registered for offences punishable under Sections 188, 141, 143, 145 and 147 read with Section 149 of IPC.

¶51

3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.2896/2022 , disposed of on 20.06.2022 , wherein this Court has held as follows:

¶52

“ 2. Learned counsel appearing for the petitioners submits that the issue in this petition stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, which submission is accepted by the learned HCGP appearing for the respondent.

¶53

3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Coordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Co-ordinate Bench of this Court. The Co-ordinate Bench has held as follows:

¶54

4. The case of the prosecution in brief is as follows:

¶55

The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore

¶56

1 W.P.No.5415/2022 disposed on 25.07.2022

¶57

¶58

WP No. 4762 of 2023

¶59

city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

¶60

5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

¶61

6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

¶62

7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

¶63

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence

¶64

(1) No Court shall take cognizance-

¶65

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

¶66

¶67

WP No. 4762 of 2023

¶68

(ii) of any abetment of, or attempt to commit, such offence; or

¶69

(iii) of any criminal conspiracy to commit such offence,

¶70

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

¶71

8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.

¶72

9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

¶73

10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy , the Hon'ble Supreme Court held as follows:

¶74

"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal

¶75

¶76

WP No. 4762 of 2023

¶77

Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

¶78

(Emphasis supplied)

¶79

11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.

¶80

The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."

¶81

4. For the aforesaid reasons, the following:

¶82

ORDER

¶83

i. Criminal Petition is allowed.

¶84

ii. Proceedings in C.C.No.388/2014 on the file of the II Additional Civil Judge and J.M.F.C., Nanjangud, Mysore, stand quashed.”

¶85

4. The learned HCGP would not dispute the aforesaid order and the fact that it covers the case at hand on all its fours.

¶86

5. In the light of the order passed by the Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:

¶87

ORDER

¶88

(i) The Writ Petition is allowed. (ii) The FIR dated 19.12.2019 i.e., Crime No.103/2019, the charge sheet dated 06.08.2020 and the proceeding in C.C.No.688/2020 pending on the file of the

¶89

¶90

WP No. 4762 of 2023

¶91

Hon'ble J.M.F.C. (II Court), Mysore, stand quashed."

¶92

In the light of the issue standing covered by the judgment rendered by this Court and the facts being undisputed, the petition stands disposed on the same terms.

¶93

Ordered accordingly.

¶94

Sd/JUDGE

¶95

JY CT:SN List No.: 1 Sl No.: 21

Rahid Pasha v. State by Srirangapatna Ps

Case brief

What is this about?

What did the court decide?

Rahid Pasha v. State by Srirangapatna Ps

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Jayant Srikumar Gauri Vs the State of Karnataka

Gopikrishna J Vs the State of Karnataka

Sri. Lal Sab @ Maroof Khan Vs the State of Karnataka

Shri B S Yeddyurappa Vs the State of Karnataka

M/S Krishna E Campus Private Limited Vs State of Karnataka

Naveen Rawat Vs State of Karnataka