Allowed

Ashok M v. State of Karnataka

Karnataka HC19 Feb 2025CRL.P/227/2025

Case brief

AI extract

What is this about?

The Court quashed the FIR and charge sheet in a criminal case involving an offence under Section 188 IPC. The judgment held that proceedings are non-maintainable in the absence of a written complaint by a competent public servant as required by Section 195(1)(a)(i) CrPC, rendering the FIR and cognizance without jurisdiction.

What did the court decide?

The petition allowed; the impugned FIR in Crime No.0052/2023 and the charge sheet in C.C.No.14006/2024 qua the petitioner quashed.

Ashok M Vs State of Karnataka — Quashing and FIR | Karnataka HC (2025)

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NC: 2025:KHC:7339 CRL.P No. 227 of 2025

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF FEBRUARY, 2025 BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 227 OF 2025

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BETWEEN:

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ASHOK M S/O MUNISWAMAPPA AGED ABOUT 54 YEARS NO.01, SCB ROAD NEAR SAI BABA TEMPLE CHIKKABETTAHALLI, BENGALURU NORTH VIDYARANYAPURA POST BANGALORE CITY KARNATAKA-560097

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…PETITIONER

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(BY SRI. ANIL SHEKAR K S., ADVOCATE)

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AND:

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Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY YELAHANKA NEW TOWN POLICE STATION BANGALORE CITY REP BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BENGALURU-560001.

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DEPUTY TAHASILDAR AGED MAJOR, SRI BALAKRISHNAMURTHY DODDABETTAHALLI NADAKACHERI YELAHANKA-3 HOBLI, YELAHANKA TALUK BANGALORE CITY KARNATAKA-560046

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…RESPONDENTS

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(BY SRI. .THEJESH P., HCGP)

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THIS CRL.P IS FILED U/S.482 (FILED U/S.528 BNSS) CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO QUASH THE FIR IN CRIME NO.0052/2023 FILE OF YELAHANKA NEW TOWN POLICE, FOR A OFFENCE U/S 188, 447 R/W 34 IPC FILED BY 1^ST RESPONDENT AND CHARGED SHEET IN

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NC: 2025:KHC:7339 CRL.P No. 227 of 2025

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CC.NO.14006/2024 FILED U/S 188, 447 R/W 34 OF IPC WHICH IS PENDING ON THE FILE OF THE VII ADDL. CMM. COURT, BANGALORE CITY.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, the petitioner seeks the following relief:

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" Quash the FIR in Crime No.0052/2023 of Yelahanka New Town Police for a offence under Section 188, 447 R/w 34 of IPC filed by 1^st respondent and charge sheet in C.C.No.14006/24 filed under section 188, 447 R/w 34 of IPC which is pending on the file of the VII Addl. CMM, Court, Bangalore City."

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The issue in controversy between the parties involved

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in the present petition is directly and squarely covered by the judgment of this Court in Alfanse Franko Vs State of Moodabidri PS

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and Another in Crl.P.No.10544/2024 dated 20.01.2025 , wherein it is held as under:

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"In this petition, the petitioner seeks the following reliefs:

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"1. To quash the cognizance order dated 22/07/2023 passed in CC no.527/2023 by the learned Civil Judge and JMFC Moodabidri for the offences under section 188 of IPC at Annexure-D , wherein the petitioner is arrayed as Accused No.1 in the interest of justice and equity.

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2. To quash the charge sheet dated 30/06/2023 filed by the Respondent no.1 Moodabidri PS pending as CC no.527/2023 arising out of crime no. 64/2023 before the learned Civil Judge and JMFC Moodabidri for the offences under section 188 of IPC at Annexure -C , wherein the petitioner is arrayed as Accused No.1 in the interest of justice and equity.

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NC: 2025:KHC:7339 CRL.P No. 227 of 2025

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3. To quash the order dated 09/05/2023 at Annexure-D , passed by the by the learned Civil Judge and JMFC Moodabidri on complaint made by the respondent no.2 under section 200 of CrPC for the alleged offense under section 188 of IPC against the petitioner, in the interest of justice and equity.

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4. Pass any other order which this Hon'ble court deems fit by considering the facts of this court, in the interest of justice and equity."

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Heard learned counsel for the petitioner and learned HCGP for the respondents and perused the material on record.

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Learned counsel for the petitioner would invite my attention to the material on record in order to point out that the impugned proceedings against the petitioner for the offence punishable under Section 188 of the IPC is not maintainable in the absence of the procedure under Section 195(1)(a) (i) of the Cr.P.C. being followed and consequently, the impugned proceedings deserved to be quashed. In support of his submission, he places reliance upon the following judgments of the Co-ordinate Benches of this Court, which are as under:

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(i) Crl.P.No.7868/2022 dated 01.09.2022

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(ii) Crl.P.No.9153/2022 dated 23.01.2024

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Per contra , learned HCGP for the respondents would submit that there is no merit in the petition and the same is liable to be dismissed.

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A perusal of the material on record will indicate that pursuant to the complaint given by respondent No.2 dated 09.05.2023, the learned Magistrate referred the matter for investigation under Section 156(3) of the Cr.P.C. only for the offence punishable under Section 188 of the IPC, which is specifically barred under Section 195 (1)(a) (i) of the Cr.P.C. Despite the same, respondent No.1 filed the impugned FIR, which is contrary to the aforesaid Bar envisaged under Section 195 (1)(a) (i) of the Cr.P.C. as held by the Coordinate Bench of this Court in Crl.P.No.7868/2022 dated 01.09.2022, as under:

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"3. The learned counsel appearing for the petitioners would submit that the issue in the lis stands covered by the judgment rendered by this Court in Crl.P.No.5415/2022, disposed of on 25.07.2022 wherein, this Court held as follows:

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NC: 2025:KHC:7339 CRL.P No. 227 of 2025

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“3. The learned counsel for the petitioners would submit that the issue in the case at hand stands covered by the judgment rendered by the Co-ordinate Bench of this Court in Crl.P.No.2896/2022 , disposed of on 20.06.2022 , wherein this Court has held as follows:

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2. Learned counsel appearing for the petitioners submits that the issue in this petition stands covered by the judgment rendered by the Co-ordinate Bench of this Court in W.P.No.13328/2018, which submission is accepted by the learned HCGP appearing for the respondent.

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3. In the light of there being no dispute with regard to the fact that the issue stands covered by the judgment rendered by the Coordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Coordinate Bench of this Court. The Co-ordinate Bench has held as follows:

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4. The case of the prosecution in brief is as follows:

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The Commissioner of Police, Mangalore City promulgated the prohibitory order from 6.00 a.m. to 6.00 p.m. of 08.12.2014 and prohibited assembling of five or more persons in Mangalore city. The accused persons violating such prohibitory order organized procession consisting 2000 persons belonging to Hindu Organization. When the complainant and his colleagues tried to prevent the accused from proceeding with the procession advising that, that is likely to create communal tensions, the accused obstructed the police from discharging their duties, crashed the barricades erected at the scene of offence, damaged the police vehicles and caused injuries to CWS.5 to 8.

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5. On receipt of charge sheet, the Magistrate by order dated 24.10.2016 took cognizance of the offences punishable under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the KPDLP Act and summoned the accused to face trial for the said offences.

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6. The petitioners seek quashing of Annexures-A to Annexures-D on the ground that the prime offence was under Section 188 of IPC and Section 195 of Cr.P.C. bars taking cognizance of such offences, except upon the complaint as required under Section 200 of Cr.P.C, therefore the whole proceedings are without jurisdiction.

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7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:

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NC: 2025:KHC:7339 CRL.P No. 227 of 2025

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"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence

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(1) No Court shall take cognizance-

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(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860); or

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(ii) of any abetment of, or attempt to commit, such offence; or

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(iii) of any criminal conspiracy to commit such offence,

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except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

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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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9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.

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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. Hemareddy , 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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11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.

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The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No.3660/2016 are hereby quashed."

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4. For the aforesaid reasons, the following:

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ORDER

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i. Criminal Petition is allowed.

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ii. Proceedings in C.C.No.388/2014 on the file of the II Additional Civil Judge and J.M.F.C., Nanjangud, Mysore, stand quashed.”

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4. The learned HCGP would not dispute the aforesaid order and the fact that it covers the case at hand on all its fours.” 4. Learned HCGP, though would refute the submission of the learned counsel for the petitioners, is not in a position to dispute the position of law as is laid down by this Court (supra). 5. Therefore, the petition deserves to be succeed on the afore-quoted reasons rendered by this Court (supra).

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6. For the aforesaid reasons, the following:

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ORDER

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Criminal Petition is allowed.

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ii. Proceedings in C.C.No.1100/2018 on the file of the Principal Senior Civil Judge and JMFC, Hunsur, stand quashed."

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In the said judgment, the Co-ordinate Bench of this Court places reliance upon the earlier judgment of the Co-ordinate Bench of this Court in Crl.P.No.2896/2022 dated 20.06.2022.

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Under identical circumstances, in relation to the offence punishable under Section 188 of the IPC, the Coordinate Bench of this Court in Crl.P.No.9153/2022 dated 23.01.2024, has held as follows:

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"3. The case of the prosecution is that on the complaint of Mahadevaiah, Police Inspector of Chamarajanagar Town Police station registered FIR on 01.11.2017 for the offence punishable

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under Sections 143, 147, 188 read with Section 149 of IPC alleging that on 01.11.2017, Kannada Rajyotsava Celebrations were taking place in Dr.B.R.Ambedkar Stadium and there was promulgation stating not to make unlawfull assembly. On around 10.00 a.m., 15 to 20 people took out Bike Rally from SDPI office Galipura. Upon seeing this, the complainant stopped those persons as they didnot have any legal permission to do so. They agreed the informed the police that they will not start rally. When the program was finished, again the said persons started bike rally by 11.30 a.m., then the complainant along with the other police personnels stopped them and registered the FIR and charge sheeted which is under challenge.

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4. The learned counsel for the petitioners has seriously contended that the offence under Section 188 of IPC, the Police cannot register the FIR, they have to file the complaint before the Magistrate as per Section 2(d) read with Section 200 of the Cr.P.C. Therefore, registering the FIR under Section 154 of Cr.P.C. is not sustainable. In support of his case, he has relied upon the judgment of the Co-ordinate Bench as well as this Court in W.P.No.5415/2022 and Crl.P.No.10435/2022 dated 17.02.2023 respectively and prayed for quashing the charge sheet.

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5. Per contra, learned High Court Government Pleader objected the petition.

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6. Having heard the arguments and on perusal of the records, especially the FIR and charge sheet, where the Tahsildar issued an order under Section 144 of Cr.P.C. as not to assemble more than 4 persons and there shall not be any bike rallies in view of the celebration of the Kannada Rajyotsava on 01.11.2017 by the Taluk Administration and therefore, the petitioners were proceeding in the bike rally they have been stopped and a case was registered. The submission of the learned counsel is that these persons were proceeding for the purpose of attending the Rajyotsava celebrations but they went in a bike which was stopped by the Police and registered the FIR. This Court as well as the Coordinate Bench have taken the view that main offence is under Section 188 of IPC which is a non cognizable offence where the State or the other person shall file a complaint under Section 2(d) of the Cr.P.C. for violation of the promulgation of the State. But no such permission or no such private complaint has been filed by the police as per Section 195 of the Cr.P.C. This Court in Crl.P.No.10435/2022 in the case of A Manju vs. State of Karnataka and another dated 17.02.2023 has categorically held that the offence under Sections 172 to 188 (both inclusive) a complaint required to be filed and not under Section 154 of Cr.P.C. The similar view has been taken by the Co-ordinate Benches of this Court in Writ Petition No.5415/2022 in the case of Fairoz Ulla Shariff @ Shariff and others vs. State and another , Crl.P.No.2896/2022 in the case of Ravi and others vs. State and

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Writ petition No.13328/2018 dated 18.06.2021, in the case of Rajashekharananda Swamiji vs. State of Karnataka .

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7. Considering the same, I am of the view, the Police have no power to register the FIR under Section 154 of Cr.P.C. as they have to file complaint under Section 2(d) of Cr.P.C. Therefore, without filing the complaint, the proceedings against the petitioners is abuse of process of law and liable to be quashed.

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8. However, it is worth to mention that when the petitioners are moving for attending the celebration of Kannada Rajyotsava, the Police ought not to have registered any FIR against them, as it is a right of a person who are staying in Karnataka shall celebrate the Kannada Rajyotsava Day. Such being the case, registering the FIR against the petitioners who are proceeding to attend the Kannada Rajyotsava celebration is not correct. Therefore, the proceedings is liable to be quashed.

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9. Accordingly, the petition is allowed .

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The criminal proceedings against the petitioners in Crime No.275/2017 registered by Chamarajanagar Town Police station in C.C.No.315/2021, pending on the file of Additional Senior Civil Judge and JMFC, Chamarajanagar is hereby quashed."

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In the instant case, as rightly contended by the learned counsel for the petitioner, in the light of the specific Bar envisaged under Section 195(1)(a) (i) of the Cr.P.C., and in the absence of a complaint in writing by a pubic servant, I am of the considered opinion that the impugned proceedings are not maintainable and the same deserves to be quashed.

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8. Accordingly, I pass the following:

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ORDER

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