High Court allowed revision petition against convictions under Karnataka Police Act, quashing proceedings due to illegal police raid, failure to obtain magistrate permission under Cr.P.C. Section 155(2), and lack of search warrant.
Judgment and order of conviction set aside; petitioners acquitted; copies of order sent to concerned courts.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 991 OF 2014
BETWEEN:
Digitally signed by SANDHYA S Location: High Court of Karnataka
S/O THYAMPANNA SHETTY, AGED ABOUT 50 YEARS, R/O VALENCIA, MANGALORE - 575 002.
…PETITIONERS
(PETITIONER 1 TO 8 CALLED OUT AND ABSENT)
AND:
THE STATE OF KARNATAKA, REPRESETED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE - 560 001.
…RESPONDENT
(BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP IS FILED U/S.397(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION DATED 06.02.2013 MADE IN C.C.NO.2886/2011 BY THE COURT OF & JMFC, (IV-COURT) MANGALORE AND THE JUDGMENT AND ORDER DATED 05.11.2014 MADE IN CRL.A.NO.65/2013 BY THE COURT OF IV/VI-ADDL.DIST. & SESSIONS JUDGE, D.K., MANGALORE AND ACQUIT THEM OF THE OFFENCES WITH WHICH THEY WERE CONVICTED BY THE COURTS BELOW.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner Nos.1 to 8/accused have preferred this revision petition against the judgment of conviction and order of sentence dated 06.02.2013 passed in C.C.No.2886/2011 by the Court of the JMFC (IV Court), Mangalore (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment dated 05.11.2014 passed in Crl.Appeal No.65/2013 by the Court of the IV Addl. District & Sessions Judge, D.K.Mangalore (hereinafter referred to as 'Appellate Court' for short).
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of panch witness. Thereafter, PW.7 Chikkaswamy, PSI conducted further investigation and recorded the statement of witnesses and submitted the charge sheet against the accused Nos.1 to 8 for the offence punishable under Sections 79 and 80 of the Karnataka Police Act, 1963.
prosecution side evidence, statement under Section 313 of Cr.P.C. was recorded and recorded and the accused have
totally denied the evidence of prosecution witnesses and they have not adduced any evidence on their behalf. Having heard on both sides, the Trial Court has convicted the accused Nos.1 to 8 for the commission of offence punishable under Sections 79 and 80 of Karnataka Police Act, 1963 and sentenced them to undergo simple imprisonment for a period of three months, and also shall pay a fine of Rs.500/- each for the offence punishable under Section 79 of Karnataka Police Act and in default of
payment of fine, they shall undergo further simple imprisonment for a period of twenty days. Further, the accused Nos.1 to 8 are sentenced to undergo simple imprisonment for a period of one month for the offence punishable under Section 80 of the Karnataka Police Act, 1963 and shall pay a fine of Rs.200/- each and in default of payment of fine, they shall further undergo simple imprisonment for a period of ten days.
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and order of sentence, the accused Nos.1 to 8 have preferred appeal before the IV Addl. District and Sessions Judge, D.K.Mangalore in Criminal Appeal No.65/2013 and the same came to be dismissed the appeal on 05.11.2014. Being aggrieved by the judgment of the Courts below, the revision petitioner/accused Nos.1 to 8 have preferred this revision petition.
unreasonable and opposed to law and facts. Both the Courts have committed serious irregularities and illegalities while appreciating the evidence on record. The prosecution has also not examined the owner of the lodge and so also the investigating officer also failed to make any of the staff or room boy as witnesses. Further, it is submitted that PWs.2 to 7 are interested witness and their evidence cannot be believed unless there is corroboration from the eye witnesses and the eye witness has not supported the case of prosecution. The Trial Court ought to have held that the prosecution has failed to place, cogent, reliable and acceptable evidence before the Court. The evidence of prosecution witnesses are full of contradictions and omissions and also improvements and there is no trust worthy in the evidence of PWs.1,2 to 7. On all these grounds, he sought to allow the revision petition.
Pleader submits that the Trial Court has passed the
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judgment of conviction and order of sentence in
accordance with law and facts and that there are no grounds to interfere with the impugned judgment of conviction and order of sentence.
on perusal of entire evidence on record, the following points would arise for my consideration:
ii. What order?
Point No.1: in the affirmative
Point No.2: as per final order
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before this Court.
vs. State of Karnataka , wherein, it is held as under:
"Petitioners are before this Court for quashing the proceedings pending in C.C. No.516 of 2014 (Crime No.186 of 2013), registered by the Mangaluru East police station for the offences punishable under Sections 79 & 80 of the Karnataka Police Act which proceedings are pending on the file JMFC(IV Court),Mangaluru.
2. The gist of the prosecution case is as follows:-
The Assistant Commissioner of Police, Mangaluru South Sub-Division, CCB had received a credible information on 10-12-2013 at about 1.00 p.m., that in the first floor of Royal Rejency Hotel, Mangaluru some persons were playing cards game of “Andhar Bahar” by indulging in gambling. Police have raided said place along with staff on the same day, that is, on 10-12-2013 at about 1.50 p.m., and found that petitioners were playing the game “Andhar
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Bahar” and alleging it is a game of chance, they seized cash of Rs.7,300/- and other materials and apprehended petitioners 1 to 19.
3. I have heard the arguments of Sri Nishit Kumar Shetty, learned counsel appearing for the petitioners and Sri Sandesh J. Chouta, learned State Public Prosecutor appearing for the State. Perused records.
4. The contention of Sri Nishit Kumar Shetty,learned counsel appearing for the petitioners, is that offences alleged against petitioners are non-cognizable and without obtaining permission from the jurisdictional Magistrate as contemplated under Sub Section (2) of Section 155 of Cr.P.C. had been obtained from the jurisdictional Magistrate by the respondent before registering the FIR in question against the petitioners for the offence punishable under Sections 79 & 80 of the Karnataka Police Act which undisputedly it is a non-cognizable offence. Thus, illegality in not obtaining permission as required under Section 155(2) of Cr.P.C. continues and as such the continuation of proceedings would be abuse of process of law as it cannot stand the test of law. On this short ground itself, petitioners have to succeed.
Hence, the following:-
ORDER
(i) Criminal Petition is hereby allowed.
(ii) Proceedings in C.C.No.516 of 2014 (Crime No.186 of 2013), pending on the file of JMFC(IV
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Court), Mangaluru, stands quashed and petitioners are acquitted of the offence alleged."
wherein, it is observed as under:
"Petitioners are accused Nos.1 to 11 in C.C. No.247/2017 (Crime No.226/2016), registered by Sakaleshpura Town Police Station for the offence punishable under Sections 79 and 80 of the Karnataka Police Act, 1963 (hereinafter referred to as ‘the Act’ for short).
2. Petitioners are before this Court for quashing of the proceedings initiated by the respondentPolice for the above said offences under the Act.
3. Facts in brief which has lead to filing of this petition are as under:
It is the case of the prosecution that on 09.10.2016, respondent had received credible information about certain persons having indulged in playing cards game of ‘AndharBahar’ at Hemavathi Recreation Club, Sakaleshpura Town and as such, police raided the said place and seized the articles used for illegal activities and filed a charge-sheet against petitioners for the offence punishable under Sections 79 and 80 of the Act. The jurisdictional Magistrate has taken cognizance of the offences
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and ordered to register a criminal case against petitioners/accused and as such, being aggrieved by the initiation of proceedings, petitioners have approached this court for quashing of said proceedings.
4. When a non-cognizable offence is reported to the police, they are not empowered to raid the place, investigate the matter and register an First Information Report without compliance of Section 155(2) of Cr.P.C. namely, without obtaining prior permission of Magistrate. It is only after referring the complaint to the jurisdictional Magistrate and taking permission, they can investigate the matter.
5. In the instant case, undisputedly there is no such permission having been obtained by the jurisdictional police as required under Section 155 (2) of Cr.P.C on receiving credible information with regard to petitioners having committed a non-cognizable offence. This Court in the case of MOIN BASHA KURNOOLI vs. THE STATE OF KARNATAKA reported in 2015 CRIMINAL LAW JOURNAL 982 while dealing with scope and power of Section 155 (2) of Cr.P.C. has held that in respect of non-cognizable offence, particularly under the Karnataka Police Act, where Investigation Officer had conducted the investigation without obtaining prior permission of the jurisdictional Magistrate and without referring compliant to the Magistrate as required under Section 155(2) of Cr.P.C. had registered an FIR, then such proceedings would suffer from illegality. It is also held that compliance of Section 155 (2) is mandatory and not directory and therefore, investigation and
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report filed by the police officer in such case would not be legally sustainable.
6. In the light of the aforesaid position of law, when facts on hand are examined, it would disclose that jurisdictional Police Officer on receiving credible information with regard to certain persons indulging in playing cards game, which attracts offence under Sections 79 and 80 of the Act, which is a non-cognizable offence and without taking permission of the Magistrate, having directly proceeded to the spot with panch witnesses, seized the incriminating articles and had also arrested the petitioners and after returning back to police station, had registered an FIR and submitted a Report to the jurisdictional Magistrate. Such procedure adopted by the jurisdictional Police is hit by Section 155(1) of Cr.P.C. In the absence of prosecution placing any material to establish such permission as required under Section 155 (2) of Cr.P.C. had been obtained from jurisdictional Magistrate, contention of the learned counsel appearing for petitioner deserves to be accepted.
7. In the light of the aforesaid discussion, this Court is of considered view that proceedings initiated by 1st respondent is in contravention of Section 155(2) of Cr.P.C. and being illegal, same cannot be sustained. As such, proceedings against petitioners is hereby quashed.
Hence, I proceed to pass the following:
ORDER
(i) Criminal Petition is hereby allowed.
(ii) Proceedings against petitioners pending in C.C.No.247/2017 (Crime No.226/2016) on the file of Civil Judge and JMFC, Sakaleshpura,Hassan District for the offence punishable under Sections 79 and 80 of the Act is hereby quashed.
(iii) Petitioners are acquitted for the offences alleged against them."
rendered by the Co-ordinate Bench of this Court in Criminal Petition No.398/2021 dated 24.05.2023 in the case of
Latha vs. State of Karnataka and Another , wherein at paragraph Nos.3 to 5, it is observed as under:
"3. The learned counsel for the petitioner submits that the issue in the case at hand stands covered by the judgments rendered by the Coordinate Benches of this Court in Crl.P.No.100877/2014, disposed on 13.06.2014, which read as follows:
"5. On analysing the above said provision of law, this Court has rendered a decision reported in 1971(2) Mys. L.J. 187 in the case of Chickarangappa & Others Vs. State of Mysore and another decision reported in 1977 (1) K.L.J. 274 in the case of Eranna Vs. State of Karnataka, which decisions declare that, “playing ‘Andar Bahar’ is a game of skill and not mere a game of
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chance and therefore, the offence punishable under Section 79 and 80 of the Act are not attracted”.
6. In the ruling reported in 1977 (1) K.L.J. 274 (supra), this Court has categorically held that, game of ‘Andar Bahar’ is not a game of chance. The facts are also little bit relevant as quoted in the said case. At paragraph 7 of the said judgment, it is stated that;
“In this view of the matter, the essential ingredient of the offence was not proved. It could not be established that the petitioner – accused were playing a game of chance and one does not know how the game ‘Andar Bahar’ is actually played with the assistance of cards. Even if any betting was resorted to and even if any pledge of moveables was made in support of that betting, that by itself did not convert a game of a skill into a game of chance. At any rate it was not categorically proved that ‘Andar Bahar’ is a game of chance and that these accused were playing that game. They were not covered under the definition of gaming in a common house. Since the institution where the accused were found playing the game with cards is a club, it is not unusual that cards are played in a club, and it may even be that some betting was also being done. These facts by themselves never proved that a game of chance was being played or that no skill was involved in that game so that it could be considered to be a mere game of chance. It is manifest that a game of skill would not be held to be
gambling for the purpose of the Act. In this view of the matter, no offence under Sections 79 and 80 of the Karnataka Police Act, 1963 was made out against the petitioners. Hence the conviction of sentence was set aside”. And in criminal revision petition No.100031/2014, disposed on 03.03.2015, it is held as follows:
"This revision petition is filed under Section 397 read with Section 401 of Cr.P.C. by the State, aggrieved by the order passed by the learned Magistrate in releasing the interim custody of the cash amount in favour of accused No.2/ respondent No.2.
2. Succinctly stated, the P.S.I. of Honnavar Police Station charge sheeted the respondents for the offence punishable under Section 87 of K.P. Act. The accused were on bail. During the raid the Investigating Officer had seized cash of Rs.34,468/-, which is alleged to be the gaming money. Respondent No.2 moved an application under Section 457 of Cr.P.C. for release of the said amount. The application was contested by the prosecution. The court below allowed the application and released the interim custody of cash amount in favour of the applicant / respondent No.2 on executing an indemnity bond for Rs.50,000/- with one surety for the likesum. However, care was taken by the court below by directing accused No.1 to assist the C.M.O. of the Court to take the photographs of the currency notes at his cost.
3. Learned counsel for the petitioner – State submits that the trial Court has lost sight of the fact that the amount was seized while the accused were indulged in playing Andar Bahar. In the event prosecution successfully proves its case, said money is liable to be confiscated to the State Government. The court had acted on the fabricated documents produced by the accused No.2 projecting that the money belong to Srikumar Roadlines, under whom he was employed. Though the prosecution had disputed the said document without probing about the veracity of CRL.P No. 398 of 2021 the document, the trial Court has hurriedly released the interim custody of the cash amount. In fact the said cash amount is required to be marked in evidence during the trial. The currency notes are not perishable in nature and there was no dire necessity to release the interim custody of the cash amount in favour of second applicant. The accused No.5 has pleaded guilty and was imposed fine, that strengthens the case of prosecution. In the judgment of this Court reported in 1993 CRL.L.J. 3109 in the case of T. Narayanaswamy vs. State and Others, it has been held that release of money seized for the interim custody is bad in law. Hence, the impugned order is liable to be set aside.
4. In reply, Sri Anoop G. Deshpande, learned counsel for R1 to R4 and R6 to R7 submits that the impugned order being in the nature of interlocutory order is not amenable to the revision jurisdiction.
Hence, the very petition itself is not maintainable. In fact, the money seized was not the gaming money, but it belongs to his employer Srikumar Roadlines and the court below having satisfied about his contention was pleased to release the interim custody to his possession. However, the interest of State is protected by directing him to execute the indemnity bond for Rs.50,000/- with one surety for the likesum. Even the interest of the prosecution about the identification of the currency notes is also taken care by directing him to assist the C.M.O. of the Court at his cost in taking photographs of the currency notes.
5. Respondent No.5 is served and not represented.
6. As regards the first contention about the maintainability of the revision petition, by a catena of judicial pronouncements of this Court and other High Courts, it is held that the release of interim custody of the seized property is the nature of adjudication of the rights of the parties in reference to the said property. The said order is amenable for revision jurisdiction under Section 397 of Cr.P.C. Hence, there is no merit in the contention that this petition is not maintainable.
7. As regards the merit of the impugned order is concerned, the court below being convinced with a certificate produced by the second applicant issued by his employer Srikumar Roadlines and also daily enquiry
report dated 14.11.2012 has inferred that he is an employee of the said Roadlines. Keeping open the question of the ownership of the seized property/ cash amount in question the court below has ordered interim custody by taking the photographs of currency notes and also by calling upon the applicant to execute the indemnity bond of Rs.50,000/- with one surety for the likesum.
8. Under the circumstances, I hold that the impugned has not prejudiced the case of the State and it is not illegal. The grounds urged by the State lacks merits and does not call for interference of this Court. Accordingly, petition is rejected".
4. In the light of the afore-extracted judgments rendered by the co-ordinate Benches of this Court and in the facts obtaining in the case at hand, which covers the issue on all its fours, I deem it appropriate to quash the proceedings, qua the petitioner.
5. For the reasons aforementioned, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings in C.C.No.627/2020 pending on the file of the IV Additional Civil Judge & JMFC, Bhadravathi, stand quashed."
and PW.7-Sri. Chikkaswamy who have deposed as to their
respective investigation, they have not deposed anything as to the compliance of the provisions of Section 155 (2) of Code of Criminal Procedure. The alleged commission of offence under Sections 79 and 80 of the Karnataka Police Act, 1963 are non-cognizable in nature. The investigating officer has not obtained the prior permission from the jurisdictional magistrate before registering the First Information Report in question against the petitioner for the commission of offence under Sections 79 and 80 of the Karnataka Police Act, 1963. Without taking prior permission from the jurisdictional magistrate as required under Section 155 (2) of Code of Criminal Procedure, the investigating officer has conducted mahazar and thereafter he has received the report from the Station House Officer and registered the case against the petitioners for the commission of offence under Sections 79 and 80 of the Karnataka Police Act, 1963 which is not sustainable under law.
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proceed to pass the following:
ORDER
Sd/JUDGE
SSD
List No.: 1 Sl No.: 1
3 issues framed by the court
Whether the judgment of conviction and sentence is illegal due to non-compliance with Section 155(2) and Section 94 of Cr.P.C?
Whether proceedings under Sections 79 and 80 of the Karnataka Police Act are sustainable without magistrates permission for non cognizable offence?
Whether the conviction should be set aside due to illegal search without warrant and lack of prior magistrates permission?
Colour shows how this judgement treated each authority
Abdul Lathif and Ors. vs. State of KarnatakaReferred¶67
Criminal Petition No.8529/2017 in the case of Abdul Lathif and Ors., vs. State of Karnataka
MOIN BASHA KURNOOLI vs. THE STATE OF KARNATAKAReferred¶93
MOIN BASHA KURNOOLI vs. THE STATE OF KARNATAKA reported in 2015 CRIMINAL LAW JOURNAL 982
Girisha and Ors. vs. State of KarnatakaReferred¶84
Criminal petition No.8188/2017 (reported in AIR KAR 848) in the case of Girisha and Ors., vs. State of Karnataka · Who else cites this
Latha vs. State of Karnataka and AnotherReferred¶107
Latha vs. State of Karnataka and Another
Chickarangappa & Others Vs. State of MysoreReferred¶109
Chickarangappa & Others Vs. State of Mysore reported in 1971(2) Mys. L.J. 187
Eranna Vs. State of KarnatakaReferred¶110
Eranna Vs. State of Karnataka reported in 1977 (1) K.L.J. 274
3 provisions across 2 enactments
SRI. PRAVEEN KUMAR
SRI. KRISHNA KUMAR
SRI SUNIL KUMAR
SRI. MAHESH
SRI. CHANDRASHEKAR SHETTY
SRI. PRASAD
G BASAVARAJA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
