Shankargowda S/O. Bharamareddy Vs the State of Karnataka

THE STATE OF KARNATAKA, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, POLICE INSPECTOR, KUDUTHINI POLICE STATION, BALLARI-583101.

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…RESPONDENT

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(BY SRI. JAIRAM SIDDI, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (UNDER SECTION 528 OF BNSS), SEEKING TO ALLOW THIS PETITION BY QUASHING THE ENTIRE PROCEEDINGS IN CRIME NO.0049/2022 REGISTERED BY THE KUDUTHINI POLICE STATION, KURUGODU CIRCLE, BALLARI, WHICH IS SUBSEQUENTLY REGISTERED IN C.C. NO.799/2022 PENDING ON THE FILE OF 5^TH ADDL. CIVIL JUDGE AND JMFC, BALLARI, FOR THE OFFENCE PUNISHABLE UNDER SECTION 78(1)(A)(VI) OF KARNATAKA POLICE ACT, 1963, SO FAR AS PRESENT PETITIONERS/ACCUSED NO.1 TO 3 ARE CONCERNED, IN THE INTEREST OF JUSTICE.

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

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HC-KAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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Heard Smt. Soubhagya S. Vakkund, learned counsel for the petitioners and Sri. Jairam Siddi, learned High Court Government Pleader for respondent.

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This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) by the petitioners – accused Nos.1 to 3 praying to quash the entire proceedings in C.C.No.799/2022, pending on the file of learned V Additional Civil Judge and JMFC, for the offence punishable under Section 78(1)(a)(vi) of the Karnataka Police Act, 1963 (“K.P.Act” for short).

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The brief facts of the prosecution case are as under:

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On 07.04.2022, the Police Sub-Inspector of Kuduthini Police Station, Ballari, lodged a complaint with the Station House Officer (SHO), stating that on 06.04.2022, at around 9:30 p.m., he received credible

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HC-KAR

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information regarding cricket betting. Consequently, the complainant, along with sub-staff and panchas, proceeded to a Dabha on the Ballari-Kuduthini road and conducted a raid on the petitioners, who were engaged in direct betting on the outcome of the T-20 cricket match between Mumbai Indians and Kolkata Knight Riders. During the raid, the complainant recovered a sum of Rs.21,740/-, Rs.25,000/-, and Rs.10,000/-, along with mobile phones, a chit, a ball pen, etc. As a result, a case was registered in Crime No.49/2022 leading to the filing of the FIR and commencement of the investigation. Taking exception to this, the petitioners have filed this petition.

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Learned counsel for the petitioners contended

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that complaint is misconceived and the alleged offence is a non cognizable one. Under the provisions of Cr.P.C., the police have no authority to investigate the crime and the police have not complied with mandatory requirements of Section 155(1) of Cr.P.C. It is contended

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that when the officer-in-charge of police station receives an information regarding commission of a 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.

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It is contended that as per Section 155(2) of Cr.P.C., no police officer shall investigate a noncognizable offence without the order of the 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. Therefore, the proceedings initiated against the petitioners in the charge sheet are liable to be quashed.

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Learned High Court Government Pleader submitted that the jurisdictional Magistrate has permitted the concerned police officer to take up the investigation

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HC-KAR

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and therefore, there is compliance of Section 155(2) of Cr.P.C.

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It is not in dispute that the alleged offence

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under Section 78(3) of K.P.Act is a non-cognizable one and when the report is received by the SHO of the police station in respect of commission of non-cognizable offence, the SHO has to follow the mandatory requirement of Sections 155(1) and 155(2) of Cr.P.C. Sections 155(1) and (2) of Cr.P.C. read as under:-

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“155. Information as to non-cognizable

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cases and investigation of such cases.- (1) When information is given to an officer in charge of a policestation of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information 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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8. Therefore, in view of the aforesaid proposition

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

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substance of information in the prescribed book and refer

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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 an order to investigate the non-cognizable 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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This Court in the case of Vaggeppa

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Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka reported in ILR 2020 KAR 630 , considering non- compliance 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 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

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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 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

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complainant."

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In view of the mandatory requirements stated

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in Sections 155(1) and 155(2) of Cr.P.C. and the 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 noncognizable offence. Whereas, in the instant case, the learned Magistrate has passed an detailed order on the requisition submitted by the SHO of the police station. However, the said order was passed on the following day of conducting raid on the petitioners. It is permissible under law. Further, learned Magistrate has not applied his mind judiciously and there is no application of judicious mind in permitting the police officer to take up the investigation for a non-cognizable offence. The jurisdictional Magistrate has granted post permission for conducting the raid, which is contrary to law, the offence punishable under Section 78(1)(a)(vi) of the K.P.Act, which is a non-cognizable offence.

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HC-KAR

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It shows that the respondent - police had no

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authority to investigate the matter. Under these circumstances, the proceedings initiated against the petitioners - accused Nos.1 to 3 by the learned Magistrate requires to be quashed. Under these circumstances, the proceedings initiated against the petitioners by the learned Magistrate require to be quashed. Accordingly, the Court passes the following:

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ORDER

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(i) The criminal petition is hereby allowed.

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(ii) The proceedings initiated against the petitioners/accused No.1 to 3 for the offence punishable under Section 78(1)(a)(vi) of the K.P.Act in C.C.No.799/2022 pending on the file of V Additional Civil Judge and JMFC, Ballari, in so far as petitioners – accused Nos.1 to 3 are concerned are quashed.

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Pending I.As., if any, stand disposed off.

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Sd/(VENKATESH NAIK T) JUDGE

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AC /CT-AN List No.: 1 Sl No.: 6

Shankargowda S/O. Bharamareddy v. the State of Karnataka

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Shankargowda S/O. Bharamareddy v. the State of Karnataka

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