Allowed

Sri U T Khader v. Sri a Raju

Karnataka HC12 Sept 2024WP/24832/2024

Case brief

AI extract

What is this about?

A writ petition sought quashing of a private complaint and cognizance order under Sections 188 and 290 IPC and Section 103 Karnataka Police Act. Following coordinate-bench decisions holding such complaints incompetent absent complaint by the promulgating officer, the High Court quashed the proceedings qua the petitioner.

What did the court decide?

Proceedings in C.C.No.25189/2024 and private complaint PCR No.9858/2022 dated 22.06.2022 quashed qua the petitioner.

Sri U T Khader Vs Sri a Raju — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:37431 WP No. 24832 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 24832 OF 2024 (GM-RES)

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BETWEEN:

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SRI. U.T. KHADER, S/O LATE HAJI UT FARED, AGED ABOUT 54 YEARS, SPEAKER OF LEGISLATIVE ASSEMBLY KARNATAKA MEMBER OF LEGISLATIVE ASSEMBLY, MANGALORE CONSTITUENCY, R/AT DOOR NO.1-2, AMMUNJE HOUSE, BOLIYAR VILLAGE, MANGALORE TALUK - 583 230, AND ALSO OFFICE AT HQX+GF9, QUEENS RD, GOVINDA CHETTY COLONY, SHIVAJI NAGAR, BENGALURU, KARNATAKA - 560 051.

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…PETITIONER

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Digitally signed by KAVYA G Location: High Court of Karnataka

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(BY SRI. BIPIN HEGDE, ADVOCATE FOR

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SMT. LATHA S. SHETTY, ADVOCATE A/W SRI. BANNI KATTI DEEPAK, ADVOCATE AND SRI. GAURAV N, ADVOCATE)

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AND:

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SRI. A. RAJU, POLICE SUB INSPECTOR, WILSON GARDEN POLICE STATION, KARNATAKA - 560 051.

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STATE OF KARNATAKA, BY WILSON GARDEN POLICE STATION,

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NC: 2024:KHC:37431 WP No. 24832 of 2024

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REPRESENTED BY PUBLIC PROSECUTOR, THE HIGH COURT OF KARNATAKA, BENGALURU - 560 001.

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…RESPONDENTS

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

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO A) ORDER, DIRECTION OR APPROPRIATE RELIEF /RELIEFS TO QUASH PRIVATE COMPLAINT DATED 22/06/2022, BEARING PCR NO. 9858/2022 IN CC 25189/24, FOR THE OFFENCES PUNISHABLE UNDER SECTION 188 AND SECTION 290 INDIAN PENAL CODE, 1860, SECTION 103 OF THE KARNATAKA POLICE ACT, 1961 IN SO FAR AS THE PRESENT PETITIONER IS CONCERNED, PENDING ON FILE OF THE 42ND ADDL. CHIEF METROPOLITAN MAGISTRATE (SPECIAL COURT TO TRY CASES AGAINST SITTING AS WELL AS FORMER MPS AND MLA, TRIABLE BY MAGISTRATE IN THE STATE OF KARNATAKA), A COPY OF THE PRIVATE COMPLAINT DATED 22/06/2022, IS ANNEXED HERETO AS ANNX-A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY

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HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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NC: 2024:KHC:37431 WP No. 24832 of 2024

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ORAL ORDER

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The petitioner is before this Court, seeking the following prayers:

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"a) To Issue a Writ in the nature of Certiorari or any other order, direction or Appropriate Relief/Relief's to Quash Private Complaint dated 22.06.2022, bearing P.C.R No.9858/2022 in CC 25189/2024, for the offences punishable under Section 188 and Section 290 Indian Penal Code, 1860, Section 103 of the Karnataka Police Act, 1961 in so far as the present petitioners is concerned, pending on file of the 42nd Additional Chief Metropolitan Magistrate (Special Court to try cases against siting as well as former MP's and MLA, triable by Magistrate in the State of Karnataka). A Copy of the Private Complaint dated 22.06.2022, is annexed hereto as

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ANNEXURE-A.

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b) To Issue a Writ in the nature of Certiorari or any other order, direction or Appropriate Relief/Relief's to Quash order taking cognizance and issuance of summons dated 25.07.2024 in relation to proceedings in P.C.R No.9858/2022 in CC 25189/2024, for the offences punishable under Section 188 and Section 290 Indian Penal Code, 1860 Section 103 of the Karnataka Police Act, 1961 in so far as the present petitioners are concerned, presently pending on file of the 42nd Additional Chief Metropolitan Magistrate (Special Court to try cases against siting as well as former MP's and MLA, triable by Magistrate in the State of Karnataka). ANNEXURE-B.

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c) Grant any such Order, Direction AND/OR any other Relief or Reliefs as this Hon'ble Court deems fit and necessary, in the facts and circumstances of the case in the interest of justice."

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Heard Sri. Bipin Hegde, learned counsel appearing

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for the petitioners, Sri. Jagadeesha B.N., learned Addl.SPP

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4 - NC: 2024:KHC:37431 WP No. 24832 of 2024

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appearing for the respondents and have perused the material on record.

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Learned counsel, Sri. Bipin Hegde, appearing for the petitioners would submit that the issue in the lis stands answered by the judgments rendered by the Co-ordinate Bench of this Court in Crl.P.No.7228/2023 c/w W.P.No.14239/2023 dated 27.02.2024 and that of this Court in Crl.P.No.7376/2022 dated 16.08.2022.

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The Co-ordinate Bench of this Court in the aforesaid judgment has quashed the proceedings on identical offences against the other accused, wherein it has held as follows:

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"2. Learned Sr. Advocate Mr.Aruna Shyam appearing for the petitioners submits that the cognizance of the offence could not have been taken by the court below, the private complaint filed u/s 200 of the Code of Criminal Procedure, 1973, for the subject offence itself being incompetent. In support of this, he banks upon of a Coordinate Bench decision in W.P.No.13328/2018 (GMRES) between SRI. RAJASHEKHARANANDA SWAMIJI AND ANOTHER vs. STATE OF KARNATAKA, disposed off on 18.6.2021. He further submits that the provisions of Section 195 of the Code of Criminal Procedure, 1973 having been held mandatory by the Apex Court in SALONI ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the quashment has to be granted by this court.

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3. Learned Addl. SPP appearing for the respondent opposes the petitions contending that there can be delegation of power to lodge the complaint and therefore, in such an event, the author who promulgated the order in question need not go before the court to

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5 - NC: 2024:KHC:37431 WP No. 24832 of 2024

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complain. Even otherwise, according to him, the arguable infirmity not going to root of the matter, no relief can be granted to the petitioners, as prayed for. So contending, he seeks dismissal of the petitions.

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4. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is inclined to grant relief to the petitioners, broadly agreeing with the submission made on their behalf. Similar question had cropped up before the Coordinate Bench in Rajashekharananda Swamiji supra. A paragraphs 8 & 10 of the judgement, it is observed as under:

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“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.

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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. Hemareddy1, the Hon'ble Supreme Court held as follows:

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“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 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.”

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(Emphasis supplied)”

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The above observations come to the aid of petitioners.

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5. The vehement submission of learned Addl. SPP that there can be delegation of “power to complain”

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in terms of promulgated order in question, is bit difficult to countenance in the absence of such delegation being demonstrated from the text of the said order itself. It has been a settled position of law vide In Re Delhi Laws Act, 1951 SCC OnLine SC 45 that a delegate cannot further delegate: delegatus non potesta potestas delegare. Contra having not been shown, the contention of the kind cannot be countenanced.

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In view of the above, these petitions being meritorious are allowed to meet the ends of justice and to prevent the abuse of process of the court; the impugned proceedings in C.C.No.24636/2022 pending on the file of learned VI Addl. Chief Metropolitan Magistrate, Bengaluru, are quashed."

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In the light of the orders passed by the Co-ordinate Bench and that of this Court and for the reasons aforementioned, the following:

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ORDER

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(i) The petition is allowed.

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(ii) Proceedings pending in C.C.No.25189/2024 and Private Complaint bearing No.9858/2022 dated 22.6.2022 before the 29^th Additional Chief Metropolitan Magistrate and which was subsequently transferred to 42^nd Additional (Spl. Court Trial Cases filed against sitting a well as former MP's and MLA,

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NC: 2024:KHC:37431 WP No. 24832 of 2024

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triable by Magistrate in the State of Karnataka) stand quashed qua the petitioner.

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Sd/(M.NAGAPRASANNA) JUDGE

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SJK List No.: 1 Sl No.: 5 CT: BHK

Sri U T Khader v. Sri a Raju

Case brief

What is this about?

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Sri U T Khader v. Sri a Raju

Case brief

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