Bhaskar Prasad @ B R Bhaskar Prasad Vs State by Cottonepete Ps

BHASKAR PRASAD @ B.R. BHASKAR PRASAD S/O LATE.P.RAMAPRASAD AGED ABOUT 48 YEARS R/AT, LOHITNAGAR, NELAMANGALA, BANGALORE - 562123 IN CHARGE SHEET ITS MENTIONED AS DSSO PRESIDENT BANGALORE CITY

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…PETITIONER

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(BY SRI. SADDAM R. MULLA, ADVOCATE FOR SRI. TAHIR. ADVOCATE )

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AND:

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Digitally signed by CHANDANA B M Location: High Court of Karnataka

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STATE BY COTTONPETE PS REP. BY STATE PUBLIC PROSECUTOR OFFICE AT, HIGH COURT COMPLEX, OPP. TO VIDHANA SOUDHA BENGALURU - 560001

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MR. BALARAJU B PI AGED ABOUT 43 YEARS, R/AT, COTTONPET POLICE, STATION, COTTONPET MAIN ROAD, KANAKAPURA, BENGALURU -560053

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…RESPONDENTS

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(BY SRI.B.N.JAGADEESHA, ADDL.SPP FOR R1)

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NC: 2025:KHC:25755 WP No. 19401 of 2025

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THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO 1. TO QUASH THE COGNIZANCE ORDER 05/01/2023 PASSED IN CC NO. 331/2023 AT ANNEXURE-D ARISING OUT OF CRIME NO.192/2022 REGISTERED BY THE RESPONDENT NO.1 COTTONPETE POLICE UNDER SECTION 341, 143, 149, 188 OF IPC AND 103 OF KP ACT, 1963 PENDING IN THE FILES OF HON'BLE XXXI ADDL. CMM COURT, BANGALORE, WHEREIN THE PETITIONER ARRIVED AS ACCUSED NO.5 IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, 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 writ petition, the petitioner seeks for the following relieves:

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"1. To Quash the cognizance order 05/01/2023 passed in CC no. 331/2023 at Annexure-D arising out of Crime No.192/2022 registered by the Respondent no.1 Cottonpete Police under section 341, 143, 149, 188 of IPC & 103 of KP Act, 1963 pending in the files of HON'BLE XXXI ADDL. CMM Court, Bangalore, wherein the petitioner arrived as accused no.5 in the interest of justice and equity.

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To quash the Charge sheet dated 15/12/2022 at Annexure-C, which is numbered in CC no. 331/2023 arising out of Crime No.192/2022 registered by the Respondent no.1 Police Cottonpete section 341, 143, 149, 188 of IPC & 103 of KP Act, 1963, pending in the files of HON'BLE XXXI ADDL. CMM Court, Bangalore, wherein the petitioner arrived as

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accused no.5 in the interest of justice and equity

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To pass any other orders which the court deems fit in the interest of justice, equity and good conscience".

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A perusal of the material on record would indicate that respondent No.1 - Police registered the impugned FIR against the petitioner in Crime No.192/2022 dated 11.12.2022 for offence punishable under Sections 341, 143, 149, 188 and 103 of the Karnataka Police Act, 1963. In pursuance of the same, the Police Authorities filed a charge sheet which is currently pending in C.C.No.331/2023 for offence punishable under Sections 341, 143, 149, 188 of IPC and 103 of the KP Act. In this context, it will be relevant to state that insofar as offences punishable under Section 188 is concerned, taking cognizance of the said offence is impermissible in view of Section 195(1)(a) of Cr.P.C. and the same has to be done by the competent authority making the complaint as held by the co-ordinate Bench of

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NC: 2025:KHC:25755 WP No. 19401 of 2025

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this Court in Rajashekharananda Swamiji Vs. State of Karnataka in W.P.No.13328 of 2018 :

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(Annexure - E) :

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" JUDGMENT/ORDER

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K.S.Mudagal, J. - "Whether the proceedings in C.C.No.3660/2016 on the file of Judicial Magistrate First Class (III Court), Mangalore, Dakshina Kannada against the petitioners are sustainable in law? is the question involved in this case.

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On the basis of the complaint (Annexure-B) filed by A.K.Rajesh, Police Inspector, Mangalore Rural Police registered the first information report in Crime No.428/2014 (Annexure-C) against the petitioners and others for 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 Karnataka Prevention of Destruction and Loss of Property Act, 1981 ('KPDLP Act' for short).

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On investigation, Mangalore Rural Police charge sheeted the petitioners and others for 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. In the charge sheet the petitioners are shown as accused Nos. 1 and 12.

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The case of the prosecution in brief is as follows:

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The Commissioner of Police, Mangalore city promulgated the prohibitory order

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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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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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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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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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"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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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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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

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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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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, (1981) 2 SCC 185 , 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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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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Further under identical circumstances in Fairoz Ulla

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Shariff @ Shariff and others Vs. State By Lashkar PS and another in W.P.No.5415 of

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2022 , this Court held as under (Annexure - F):

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" ORDER

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Heard Sri.Mohammed Tahir, learned counsel appearing for the petitioners and Sri. K.S.Abhijith, the learned High Court Government Pleader appearing for respondent No.1.

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The petitioners are before this Court calling in question the proceedings in Crime No.103/2019, registered for offences punishable under Sections 188, 141, 143, 145 and 147 read with Section 149 of IPC.

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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

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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 Co-ordinate Bench of this Court, I deem it appropriate to close the proceedings by following the judgment so rendered by the Co-ordinate 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: 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

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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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"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

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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." (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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The learned HCGP would not dispute

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the aforesaid order and the fact that it covers the case at hand on all its fours.

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In the light of the order passed by the

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Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the following:

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ORDER

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(i) The Writ Petition is allowed.

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(ii) The FIR dated 19.12.2019 i.e., Crime No.103/2019, the charge sheet dated 06.08.2020 and the proceeding in C.C.No.688/2020 pending on the file of the Hon'ble J.M.F.C. (II Court), Mysore, stand quashed".

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In view of the aforesaid facts and circumstances and

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the undisputed fact that Section 188 IPC has been invoked as against the petitioner, I am of the view

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that taking cognizance of the impugned proceedings in the absence of a private complaint as defined under Section 2(d) of Cr.P.C. is not maintainable and the same deserves to be quashed.

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In Rajashekharananda Swamiji's case ( supra) (Annexure - E), this Court has also come to the conclusion that upon quashment of proceedings for offence punishable under Section 188, the proceedings with relation to the remaining offences also deserve to be quashed as could be seen from para 7 to 11 of the said order.

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