Allowed

Leo Carnelio v. State of Karnataka

Karnataka HC21 Oct 2024CRL.P/1306/2024

Case brief

AI extract

What is this about?

Petition to quash proceedings in C.C.No.2564/2017 for offences punishable under Section 78 of the Karnataka Police Act. The offence was non-cognizable and no Magistrate's order under Section 155(2) Cr.P.C. permitted investigation. Relying on a coordinate Bench decision, the Court allowed the petition and quashed the proceedings qua the petitioner.

What did the court decide?

Proceedings in C.C.No.2564/2017 quashed qua the petitioner; I.A.No.1/2024 disposed.

Leo Carnelio Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:42177 CRL.P No. 1306 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 1306 OF 2024

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BETWEEN:

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LEO CARNELIO S/O LATE F.X. CAMELIO, AGED ABOUT 46 YEARS, R/O AMBAGILU, UDUPI TALUK, UDUPI DISTRICT-576 232. (ADDRESS OBTAINED FROM THE CHARGE SHEET IN CC NO. 4929/2019, WHICH IS QUASHED ALREADY. ALSO CONFIRMED BY THE PETITIONER HIMSELF, AS THE CHARGE SHEET DOES NOT DISCLOSE ADDRESS)

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…PETITIONER

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(BY SRI. HALEEMA AMEEN, ADVOCATE)

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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AND:

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STATE OF KARNATAKA SHIRVA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560 001.

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…RESPONDENT

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(BY SRI. B.N. JAGADEESHA, ADDL.SPP)

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THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO QUASH ORDER TAKING COGNIZANCE DATED 06.09.2017 IN C.C.NO.2564/2017 PENDING ON THE FILE OF III ADDITIONAL

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NC: 2024:KHC:42177 CRL.P No. 1306 of 2024

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CIVIL JUDGE AND JMFC COURT, UDUPI, REGISTERED BY THE POLICE OF SHIRVA POLICE STATION IN CR.NO.110/2017, FOR THE OFFENCE P/U/S 78(i)(iii) OF K.P. ACT, AGAINST THE PETITIONER.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner is before this Court calling in question proceedings in C.C.No.2564/2017, pending before the III Additional Civil Judge and JMFC Court, Udupi, registered for offences punishable under Sections 78(1) and (3) of the Karnataka Police Act, 1963 (for short ‘the Act’).

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Heard Smt. Haleema Ameen, learned counsel for petitioner and Sri B.N.Jagadeesha, learned Additional State Public Prosecutor for the respondent.

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It is an admitted fact that in the case at hand, the alleged offence is the one punishable under Section 78(3) of the Act is a non-cognizable offence and for a non-cognizable offence, a nod of the learned Magistrate under Section 155(2) of the Cr.P.C. is mandatory. The issue that has arisen for

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consideration need not detain this Court for long as the coordinate Bench of this Court in the case of VAGGEPPA GURULINGA JANGALIGI V. STATE OF KARNATAKA

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reported in ILR 2020 KAR 630 , considering the fact whether the endorsement ‘permitted’ would be in compliance of Section 155 (2) of the Cr.P.C., has held as follows:

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“ 3. The petitioner has stated that the complaint is misconceived, and the alleged offence is non-cognizable as per the Code of Criminal Procedure, 1973. Therefore, the Police have no authority to investigate the crime. It is further submitted that the Police have not complied with mandatory requirement of Section 155 of Cr. P.C. When the officer-in-charge of the Police Station received 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 he Magistrate. Further, sub-Section (2) of Section 155 of Cr. P.C., mandates that no Police Officer shall investigate a non-cognizable case without order of a Magistrate having power to try such case or commit such case for trial. The petitioner has further stated that there is no iota of evidence that the above said mandatory requirement are complied with. There is no speaking order by the jurisdictional Magistrate permitting the Police to take up investigation. Therefore, the proceedings initiated against the petitioner who is arrayed as accused No. 4 in the charge sheet are liable to be quashed.

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5. The Learned Counsel for the petitioner submitted that the offence punishable under Section 87 of the K.P. Act is non-cognizable one and therefore, as per Section 155(1) of Cr. P.C., the informant PSI ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed

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the order, permitting the concerned Police to take up investigation of the case and these are the mandatory requirements of the provisions under Section 155(1) and 155(2) of Cr. P.C. which are not followed in the present case. Therefore, the proceedings initiated against the petitioner are vitiated and are liable to be quashed.

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8. It is not in dispute that the alleged offence punishable under Section 87 of the K.P. Act is a noncognizable offence. When the report is received by the SHO of Police Station in respect of commission of noncognizable offence, the SHO has to follow the mandatory procedure prescribed under Section 155(1) and 155(2) of Cr. P.C. Therefore, it is necessary to refer the said provision. Section 155 of Cr. P.C., which deal with the procedure for investigation and for taking cognizance of non-cognizable offence reads as follows:—

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“155. Information as to noncognizable 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 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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(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 noncognizable.”

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9. Therefore, when the SHO of the Police Station receives a report regarding commission of noncognizable offence, it is his duty to enter the substance of the information in the prescribed book and refer the informant to the Magistrate as required under Section 155(1) of Cr. P.C. Thereafter, the jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as mandated by the provisions of Section 155(2) of Cr. P.C., stated supra. Unless, the Police Officer is permitted by an order of the jurisdictional Magistrate to investigate the noncognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or the charge sheet.

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10. This Court in the case of Praveen Basavanneppa Shivalli v. State of Karnataka [(2017) 1 AIR Kant R 461] , considered the requirement of Section 155(1) and (2) of Cr. P.C., where case relates to a noncognizable offence, in para 10 of the judgment this Court has observed as follows:

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“10. S. 155 of Cr. P.C. deals with the procedure to be adopted in respect of the information received by the Officer in charge of a Police Station relating to commission of noncognizable offence. As per sub-section (I) of S. 155 Cr. P.C. when an Officer in charge of Police Station receives the information as to the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be maintained by such Officer in the prescribed form ‘and refer the informant to the Magistrate’. Sub-section (2) of S. 155 Cr. P.C. makes it clear, that no Police Officer shall investigate a non-cognizable case

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without the order of a Magistrate having power to tty such case or commit case for trial. Subsection(1) of S. 155 Cr. P.C., which casts a duty on the station house officer who receives information as to the commission of noncognizable offence to enter or cause to be entered the information in the prescribed book and refer the informant to the Magistrate, does not enable the SHO himself to approach the Magistrate and seek orders. The provision makes it clear, that the SHO shall refer the informant to the Magistrate, thereby, making clear that it is for the informant to seek the orders of jurisdictional Magistrate for issue of direction to the police for investigation of the case. The Magistrate, on being approached by the informant, if orders investigation, the SHO concerned would get jurisdiction to register the crime, investigate the matter and not otherwise.”

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11. This Court in the case of Mukkatira Anitha Machaiah v. State of Karnataka [ Crl.P. 5934/2009 decided on 20/8/2013] , considered the scope of Section 155(1) and (2) of Cr. P.C., has observed in para 5 as follows:—

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“5. Section 155 of Cr. P.C. deals with the procedure to be adopted in respect of an information received by the officer in charge of a police station relating to commission of a noncognizable offence. According to sub-section (1) of Section 155 of Cr. P.C., when an officer in charge of the Police Station receives an information as to the commission of a noncognizable offence, he shall enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. According to sub-section (2) of Section 155 of Cr. P.C., no police officer shall investigate a non-cognizable case without a

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order of a Magistrate having power to try such case or commit the case for trial. Thus reading of sub-section (1) of Section 155 of Cr. P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is only to enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter.”

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12. This Court in paragraph 6 has further has observed as follows:—

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“In the case on hand, as noticed supra, upon receipt of the report submitted by the 2^nd respondent, the SHO of Virajpet Police Station registered the same as NCR and submitted a requisition to the jurisdictional Magistrate seeking permission to investigate the matter, based on which, the Magistrate granted permission. Thus, the procedure adopted by the SHO is without the authority of law and the same is not contemplated under Section 155 of Cr. P.C. Therefore, the permission granted by the Magistrate on such requisition is also without any basis, as such, the investigation carried on by the police and the charge sheet filed thereon are without the authority of law. Therefore, the prosecution launched against the petitioner is liable to be quashed. However, it is open to Respondent No. 2, who is the informant before the police to approach the jurisdictional Magistrate and seek necessary orders as contemplated under Section 155 of Cr. P.C.”

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13. Therefore, the SHO of the Police Station has no authority of law unless the jurisdictional magistrate permits the Police Officer for investigation of the non- cognizable offence.

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14. This Court in the case of Padubidri Members Lounge v. Director General and Inspector General of Police [W.P. Nos. 42073-75/2018 DD : 3/10/2012] , considered the mandatory provision of Section 155(1) and (2) of CrP.C., where the charge sheet was filed for the offence under Section 87 of the K.P. Act. In paragraphs 6 and 7, this Court has held as follows:—

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“6. As per the above provisions, when an Officer-in-charge of the police station receives an information with regard to commission of non-cognizable offence/s, i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribedform and ii) refer the informant to the Magistrate. Further, SubSection (2) of Section 155 Cr. P.C., mandates that no Police Officer shall investigate a noncognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.

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7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of Cr. P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr. P.C., or obtained necessary order as envisaged under Section 155(2) of Cr. P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr. P.C.”

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15. Again this Court, in the case of Veeranagouda v. The State of Karnataka [ Crl.P. No.

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NC: 2024:KHC:42177 CRL.P No. 1306 of 2024

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102021/2018 decided on 11/1/2019] , considered the requirements of Section 155(1) and (2) of Cr. P.C., and has held in para 9 as follows:—

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“The Counsel appearing for the petitioner' also brought to the notice of this Court that when a requisition was given to the Magistrate, only an endorsement is made as permitted to investigate as per section 155 of Cr. P.C. on the very request letter itself and the same is not in accordance with law. The concerned Magistrate did not apply his mind and passed any considered order. On the requisition only an endorsement is made and the same is not the permission in the eye of law. Therefore in reality it is not permission at all and the prosecution has not satisfied the Court that mandatory requirements are complied before proceeding with the investigation in the matter. Legal aspect has not been complied and the same has been over looked by the Court below while ordering for registering the criminal case against the petitioners' herein. Looking to these materials it goes to show that it is the abuse of process of Court to continue the proceedings. Not only it is wasting of valuable time and energy of the Court. Even if the trial is proceeded with, it is a futile exercise in the matter.”

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16. Therefore, this Court time and again has quashed the proceedings initiated against the accused persons in respect of non-cognizable offence on the ground that the mandatory provisions of Section 155(1) and (2) of Cr. P.C., are not complied with. However, this Court has not laid down any guidelines for the Learned Magistrates as to how and in what manner they have to pass the Order under Section 155(2) of Cr. P.C., when a requisition is submitted to the Learned Magistrate seeking permission to investigate the non-cognizable offence.”

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10 -

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NC: 2024:KHC:42177 CRL.P No. 1306 of 2024

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In the light of the afore-quoted order passed by the Co-

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ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:

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ORDER

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i) The Criminal Petition is allowed.

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ii) The proceedings in C.C.No.2564/2017, pending on the file of the III Additional Civil Judge and JMFC Court, Udupi, stand quashed qua the petitioner.

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I.A.No.1/2024 stands disposed, as a consequence.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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nvj List No.: 1 Sl No.: 63

Leo Carnelio v. State of Karnataka

Case brief

What is this about?

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Leo Carnelio v. State of Karnataka

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