Allowed

Lakshmikant Shankaregowda Goudar v. the State of Karnataka Dharwad

Karnataka HC5 Jul 2024CRL.P/100847/2024

Case brief

AI extract

What is this about?

Criminal petition filed under Section 482 Cr.P.C. to quash proceedings initiated against the petitioner for a non-cognizable offence under Section 78(iii) of Karnataka Police Act. The High Court quashed the proceedings as the police conducted an investigation without a proper order from the Magistrate permitting investigation of a non-cognizable offence.

What did the court decide?

Criminal Petition allowed and proceedings initiated in C.C.No.148/2024 for the offence punishable under Section 78(iii) of K.P.Act are quashed.

Lakshmikant Shankaregowda Goudar Vs the… — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9284 CRL.P No. 100847 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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CRIMINAL PETITION NO.100847 OF 2024

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BETWEEN:

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LAKSHMIKANT SHANKAREGOWDA GOUDAR AGE: 52 YEARS, OCC: LABOURER, R/O: SALAPET, ILKAL, BAGALKOTE.

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…PETITIONER

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(BY SRI SANTOSH B.MALLIGAWAD., ADV.)

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AND:

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THE STATE OF KARNATAKA DHARWAD BAGALKOTE TOWN POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD

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Digitally signed by MANJANNA E Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI JAIRAM SIDDI, HCGP)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE ORDER DATED 12.02.2024 PASSED BY THE PRL.CIVIL JUDGE AND JMFC, BAGALKOTE IN C.C.NO.148/2024 WHEREIN, LEARNED MAGISTRATE HAS TAKEN COGNIZANCE WITH RESPECT TO OFFENCE PUNISHABLE U/S 78(iii) OF KARNATAKA POLICE ACT WITH RESPECT TO BAGALKOTE TOWN P.S. CRIME NO.09/2024, WITH RESPECT TO ACCUSED.

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

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2 - NC: 2024:KHC-D:9284 CRL.P No. 100847 of 2024

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ORDER

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This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) seeking to quash the entire proceedings in C.C.No.148/2024 on the file of Principal Civil Judge and JMFC Court at Bagalakote for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 (“K.P.Act” for short).

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Brief facts of the case are that, on 30.01.2024 at about 4.30 p.m., the Police Inspector, Bagalakote Town Police Station received a credible information that, the petitioner was engaged in mataka, that was played at public place near Bagalakote City Bus-Stand and hence, the respondent and his sub-staff conducted raid and seized an amount of Rs.1710/-, Ball-Pen and a white sheet,. Thus, the respondent prepared seizure panchanama and filed a complaint.

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On the basis of the complaint, respondent registered a case in Crime No.9/2024 of Bagalakote Town Police Station, for the offence punishable under Section

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3 - NC: 2024:KHC-D:9284 CRL.P No. 100847 of 2024

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78(iii) of the K.P.Act. Taking exception to the same, the petitioner has filed the present petition.

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Learned counsel for the petitioner contended that the complaint filed against the petitioner is misconceived and the alleged offence is a non-cognizable one under the provisions of the Cr.P.C., the police have no authority to investigate the crime and the police have not complied with the mandatory requirements of Section 155(1) of Cr.P.C. It is contended that, when an officer in-charge of a police station received an information regarding commission of non-cognizable offence, he shall enter the same in a book to be maintained by the said officer and refer the informant to the Magistrate. It is contended that as per Section 155(2) of Cr.P.C., no police officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or to commit such case for trial, but, there is no iota of evidence to show that, the above requirements are complied with in the present case and there is no speaking order by the jurisdictional Magistrate for permitting the police to take up the investigation, the proceedings initiated

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4 - NC: 2024:KHC-D:9284 CRL.P No. 100847 of 2024

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against the petitioner in the charge sheet is liable to be quashed.

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Heard learned counsel for the petitioner and

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learned High Court Government Pleader for respondent-

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State.

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Learned counsel for the petitioner submitted that, the offence under Section 78(3) of K.P.Act is non-cognizable one and as per Section 155(1) of Cr.P.C., the informant ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed an order, permitting the concerned police to take up the investigation of the case and these are the mandatory requirements of Section 155(1) and (2) of Cr.P.C., but, these proceedings are not followed by the jurisdictional Magistrate and therefore, the proceedings initiated against the present petitioner requires to be held as vitiated and thus, liable to be quashed.

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It is not in dispute that, the alleged offence under

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Section 78(iii) of the K.P.Act is a non-cognizable one and

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5 - NC: 2024:KHC-D:9284 CRL.P No. 100847 of 2024

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when the report is received by the SHO of a police station in respect of commission of a non- cognizable offence, the SHO has to follow the mandatory requirements of Section 155(1) and (2) of Cr.P.C.

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Section 155 (1) and (2) of Cr.P.C. reads as

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follows:

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"S. 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 non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."

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Therefore, in view of the aforesaid proposition of

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law, it is the duty of the police officer to enter the substance

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of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr.P.C. and thereafter, the jurisdictional Magistrate is required to pass an order permitting the police officer to investigate the case as required under Section 155(2) of Cr.P.C. Therefore, unless the police officer is permitted by the Magistrate in a written order to investigate a noncognizable offence, the police officer does not get the jurisdiction to investigate the matter and file a final report or a charge sheet.

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The Co-ordinate Bench of this Court in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka¹ , considering noncompliance of mandatory provisions of Section 155(1) and (2) of Cr.P.C., has held as under :

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"20. Therefore, under Rule 1, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the police officer or the police officer

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1 ILR 2020 KAR 630

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by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr.P.C. and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.

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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 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

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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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In view of the mandatory requirements stated in Section 155(1) and (2) of Cr.P.C and ratio laid down in the case stated supra, the SHO of a police station has no authority, unless, the jurisdictional Magistrate permits him for investigation of a non cognizable offence. Whereas, in the

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instant case, the learned Magistrate has passed an order in

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the order sheet, which reads as follows:

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“The SHO Town P.S. has submitted the charge sheet against the accused for the offence punishable U/Sec.78(iii) K.P Act, in Town P.S.Cr.No.9/2024. Perused the final report and documents. There are sufficient grounds for proceeding against the accused for the alleged offence.

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IFR and Complaint are merged in this case.

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Hence, acting under U/s. 190(1)(b) of Cr.P.C, cognizance is taken for the offence punishable U/Sec.78(iii) K.P. act is taken against accused.

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Office is directed to register as Criminal Case against accused in Register No.III.

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Issue summons to the accused.

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R/by 28.03.2024.”

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But this Court in catena of decisions held that the

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said order made in the order sheet on the requisition submitted by the police Officer is not a judicious order having applied its mind and there is no application of judicious mind in permitting the police office to take up the investigation for a non-cognizable offence. Therefore, the SHO of a police station if received a complaint from the PSI

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and in turm, the SHO has to submit a requisition to the jurisdictional Magistrate seeking permission to investigate an

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offence punishable under Section 78(iii) of the K.P.Act., which is a non-cognizable offence.

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Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the police officer to investigate a non-cognizable offence, muchless, an order passed by the learned Magistrate. Under these circumstances, the proceedings initiated against the petitioner by the Magistrate, requires to be quashed. Accordingly, this Court pass the following;

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: ORDER :

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i. The Criminal Petition filed under Section 482 of Cr.P.C. is allowed .

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ii. The proceedings initiated in C.C.No.148/2024 on the file of learned Principal Civil Judge and JMFC, Court, Bagalakote for the offence punishable under Section 78(iii) of K.P.Act is hereby quashed .

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List No.: 1 Sl No.: 29

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Sd/JUDGE

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Lakshmikant Shankaregowda Goudar v. the State of Karnataka Dharwad

Case brief

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Lakshmikant Shankaregowda Goudar v. the State of Karnataka Dharwad

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