Allowed

Krishnegowda @ Krishna v. State of Karnataka

Karnataka HC2 Sept 2024CRL.P/9008/2024

Case brief

AI extract

What is this about?

Accused No.13 in an Andar Bahar gambling case challenged cognizance and proceedings under Sections 79 and 80 of the Karnataka Police Act. Following a prior order quashing identical proceedings against co-accused, the Court held the Magistrate's bare 'permitted' endorsement did not satisfy Section 155(2) CrPC, and quashed the proceedings.

What did the court decide?

Proceedings in C.C. No.10543/2020 quashed as to petitioner; Magistrate directed to release seized articles including cash under NCR No.1129/2018.

Krishnegowda @ Krishna Vs State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:35459 CRL.P No. 9008 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 9008 OF 2024

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BETWEEN:

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KRISHNEGOWDA @ KRISHNA, S/O BANNINANJEGOWDA, AGED ABOUT 42 YEARS, R/A NO.41, 3^RD CROSS, 2^ND MAIN, BEML LAYOUT, BASAVESHWAR NAGAR, BANGALORE-560 079

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…PETITIONER

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(BY SRI. ADARSHA R., ADVOCATE)

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AND:

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY BANASWADI PS, BENGALURU DISTRICT, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU 560 001.

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H.M. MAHADEVAPPA, FATHER NAME NOT KNOWN MAJOR IN AGE ASSISTANT COMMISSIONER OF POLICE, BANASWADI SUB-DIVISION, BANASWADI, BENGALURU - 560 043

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…RESPONDENTS

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(BY SRI. M.R. PATIL, HIGH COURT GOVT. PLEADER)

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NC: 2024:KHC:35459 CRL.P No. 9008 of 2024

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THIS CRIMINAL PETITION IS FILED U/S.482 (FILED U/S.528 BNNS) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF TAKING COGNIZANCE DATED 04.08.2020 PASSED BY THE HON'BLE METROPOLITAN MAGISTRATE, TRAFFIC COURT, I MAYOHALL, BENGALURU, IN C.C.NO.10543/2020 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 79 AND 80 OF THE KARNATAKA POLICE ACT 1963 BASED ON THE CHARGE SHEET FILED BY THE RESPONDENT NO.1/BANASAWADI P.S.; QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN C.C.NO.10543/2020 PENDING ON THE FILE OF THE METROPOLITAN MAGISTRATE TRAFFIC COURT-1, MAYOHALL, BANGALORE FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 79 AND 80 OF THE KARNATAKA POLICE AT, 1963, REGISTERED BY THE RESPONDENT NO.1/BANASAWADI P.S., ETC.

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

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CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner, accused No. 13, is before this Court challenging the impugned criminal proceedings in which he is sought to be prosecuted for offenses punishable under Sections 79 and 80 of the Karnataka Police Act, 1963.

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The charge against the petitioner is that he was found playing "Andar Bahar" inside a private house along with other accused persons. The other accused had approached this Court in Criminal Petition No. 11681/2023, and this Court, by its order dated 20.11.2023, quashed the proceedings against them. In paragraphs 5 and 6 of that order, the Court observed as follows:

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NC: 2024:KHC:35459 CRL.P No. 9008 of 2024

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"5. The police sent the requisition to the learned Magistrate for granting permission to investigate the offences alleged against the petitioners. The learned Magistrate on the requisition sent by the police has endorsed "Permitted". Whether the endorsement "Permitted" satisfies the requirement of Section 155(2) of Cr.P.C was examined by the Co-ordinate Bench of this Court in the case of VAGGEPPA GURULINGA JANGALIGI Vs. THE STATE OF KARNATAKA reported in 2020 SCC online KAR 2708 wherein it is held as follows:

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" 18. Under these circumstances, this Court felt it necessary to lay down some guidelines for the benefit of our Judicial Magistrates as to how they have to approach and pass orders when requisition is submitted by the SHO of Police Station seeking permission to investigate into the noncognizable offence. The provision of Section 155(1) and (2) of Cr. P.C., referred above make it very much clear that the SHO of thePolice Station on receiving the information regarding the commission of non-cognizable offence, his first duty is to enter or cause to be entered the substance of such commission in a book maintained by such Officer and then refer the informant to the Magistrate. This is the requirement of Section 155(1) of Cr. P.C. Once the requisition is submitted to the Magistrate, it is for the Jurisdictional Magistrate to consider the requisition submitted by the SHO of Police Station and pass necessary order either permitting the Police Officer to take up the investigation or reject the requisition. Section 155(2) of Cr. P.C., specifically provides that no Police Officer shall investigate the non-cognizable case without the order of the Magistrate having power to try such case or commit such case for trial. Therefore, passing an “order” by the Magistrate permitting the Police Officer to investigate the non-cognizable offence is an important factor. The word without the order of the Magistrate appearing in subSection (2) of Section 155 of Cr. P.C., makes it clear that the Magistrate has to pass an ‘order’ which means supported by reasons. On the other hand, in number of cases, the Jurisdictional Magistrates are writing a word

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4 - NC: 2024:KHC:35459 CRL.P No. 9008 of 2024

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‘permitted’ on the requisition submitted by the Police itself which does not satisfy the requirement of Section 155(2) of Cr. P.C., Such an endorsement cannot be equated with the word ‘Order’."

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6. The endorsement "permitted" is not supported by reasons so as to satisfy the requirements of Section 155(2) of Cr.P.C. Hence, the Investigation conducted by the police culminating in taking cognizance of the offences alleged against the petitioners stands vitiated for non compliance of mandatory provisions contained in Section 155(2) of Cr.P.C. Even otherwise, the petitioners were playing 'Andhar Bahar' with stakes in the residential house which does not come under the ambit of definition of gaming house as defined under 2(3) of Karnataka Police Act. In view of the above, the continuation of the criminal proceedings will be an abuse of process of law for non compliance of mandatory provisions contained in Section 155(2) of Cr.P.C."

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Therefore, this petition must also be disposed of in terms of the aforementioned order to maintain parity.

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Accordingly, I pass the following:

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ORDER

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i. Criminal petition is allowed .

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ii. The impugned proceedings in C.C. No.10543/2020 on the file of the Metropolitan Magistrate, Traffic Court-I, Mayohall, M.G.Road, Bangalore, stands quashed insofar as it relates to the petitioner herein/accused No.13.

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NC: 2024:KHC:35459 CRL.P No. 9008 of 2024

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iii. Learned Magistrate to release the articles including cash seized under NCR No.1129/2018 to the petitioner, in accordance with law.

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In view of the disposal of the main matter, pending I.As. if any, do not survive for consideration.

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Sd/(HEMANT CHANDANGOUDAR) JUDGE

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BMV*

Krishnegowda @ Krishna v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Krishnegowda @ Krishna v. State of Karnataka

Case brief

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What did the court decide?

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