Criminal Petition No. 2363 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 2363 OF 2024 (482(Cr.PC) / 528(BNSS) BETWEEN: LEO CARNELEO S/O LATE F.X. CAMELIO, AGED ABOUT 52 YEARS, SANTHEKATTE POST, KUNJIBETTU, AMBAGILU, UDUPI TALUK, UDUPI DISTRICT – 576 232. Digitally signed by LEELAVATHI S R Location: High Court of Karnataka …PETITIONER (BY SMT. HALEEMA AMEEN, ADVOCATE) AND: STATE OF KARNATAKA SHIRVA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560001. (BY SMT. M.M.WAHEEDA, HCGP) …RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER TAKING COGNIZANCE DATED 30.12.2020 THEREBY QUASHING THE ENTIRE PROCEEDINGS IN C.C.NO.3895/2020 PENDING ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC COURT UDUPI REGISTERED BY THE POLICE OF MALPE POLICE STATION FOR THE OFFENCE P/U/S.78(i)(iii) OF KARNATAKA POLICE ACT 1963 AGAINST THE PETITIONER. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 2 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 ORAL ORDER In this petition, petitioner seeks quashing of the impugned order dated 30.12.2020 passed in C.C.No.3895/2020 by the III Addl. Civil Judge and JMFC, Udupi, whereby the Trial Court took cognizance of the offence punishable under Section 78(i) and (iii) of the Karnataka Police Act, 1963 (hereinafter referred to as ‘the Act’ for short) against the petitioner/accused No.2, who is before this Court by way of the present petition. 2. Learned counsel for the petitioner submits that the offences alleged against the petitioner under Section 78(i) and (iii) of the Act being non cognizable offence, necessary permission under Section 155(1) and (2) of Cr.P.C had not been obtained by the jurisdictional Magistrate before proceeding further and in the absence thereof, the trial Court committed an error in passing the impugned order, which deserves to be set aside. 3. In support of her contention, learned counsel places
Legal Reasoning
reliance upon the judgment of the co-ordinate bench of this Court in - 3 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 the case of Melwin Vishwas D Souza Vs. State of Karnataka and Anr.1 which reads as under: This petition by petitioner-accused No.3 is filed under Section 482 of Cr.P.C. for quashing the criminal proceedings against the petitioner in C.C No.2829/2019 pending on the file of JMFC-VII Court, Mangaluru, for the offences punishable under Sections 78 and 80 of Karnataka Police Act, registered in crime No.232/2018 by Ullal Police Station. 2. The case of the prosecution is that one H.D. Kabbal Raj, CCB Police Sub Inspector, Ullal Police Station, Mangaluru, received a credible information on 06.12.2018 that some persons were playing cricket match betting through laptop at Monthero House, Chembugudde, and on the basis of the information, at 12.00 noon, the complainant along with his staff went to the spot and on seeing the accused persons, he filed a complaint to the Ullal Police Station. On the basis of the complaint, the police registered NCR case against unknown three persons and sent requisition to the Magistrate and obtained permission. Thereafter, conducted raid on the premises and arrested accused Nos.1 and 2. Subsequently, the police arrested the 1 Crl.P.No.6643/2021 dated 31.01.2022 - 4 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 petitioner-accused No.3 and produced before the Court. After registering FIR and after completion of investigation, charge sheet has been filed. The petitioner, being aggrieved by filing of the charge sheet against him, has filed the present criminal petition before this Court. 3. Learned Counsel for the petitioner submits that, after receiving the information, the informant-CCB Police Sub Inspector filed a complaint to the police, who in turn registered NCR case and sent a requisition to the Magistrate and the Magistrate has endorsed on the requisition giving permission, which is not correct as per the guidelines issued by the learned Single Bench of this Court as well as the Criminal Rules of Practice. The learned Counsel further submits that there is grave violation of the provisions contained in Section 155 of Cr.P.C. Therefore, registering FIR and filing charge sheet, without obtaining proper permission, is not sustainable. The learned Counsel also submits that the petitioner was not at all present at the place of incident. The petitioner thereafter filed a bail petition and subsequently, obtained bail and hence, prays for quashing of the criminal proceedings. 4. On the contrary, learned High Court Government Pleader, submits that the investigation - 5 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 officer received credible information in respect of cricket betting and informed the respondent police, who in turn registered NCR case and sent requisition to the Magistrate. The Magistrate accordingly gave permission and subsequently, FIR was registered and charge sheet was filed. Therefore, there is no violation of the provisions of Section 155 of Cr.P.C. or the guidelines issued by the learned Single Bench of this Court. 5. Having heard learned Counsel for the parties and on perusal of the records, it reveals that one Sri. H.D. Kabbal Raj, CCB Sub Inspector of Police, Mangaluru, received credible information on 06.12.2018 that some persons namely, Kiran and Kishore as per the directions of Vikas were playing cricket betting using laptop. After receipt of information, the complainant went to the spot and found the aforesaid accused persons and therefore, he filed a complaint to the respondent police. the respondent police after registering the NCR Case sent a requisition to the Magistrate and the Magistrate issued permission to the Police Inspector and endorsed on the order sheet 'permission is accorded'. Subsequently, the police registered FIR and apprehended accused Nos.1 and 2 and seized mobile phones and laptop. Accused Nos.1 and 2 - 6 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 said to be released on bail and charge sheet has been filed. 6. Learned Counsel for the petitioner has relied on the decision of this Court in the case of VAGGEPPA GURULINGA JANGALIGI (JANGALAGI) VS. THE STATE OF KARNATAKA, THROUGH PSI, KAGWAD POLICE STATION, BELAGAVI reported in ILR 2020 KAR 630, wherein this Court in similar cases has elaborately issued guidelines after considering Chapter V Rule 1 of Karnataka Criminal Rules of Practice, which deals with investigation of non-cognizable cases. This Court in the aforesaid judgment, at paragraphs 19 to 21, has held as under: 19. Chapter V Rule 1 of Karnataka Criminal Rules of Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:— “INVESTIGATION AND PROSECUTION Officer *1. Report under Section 154.—(1) On receipt of the report of the Police under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. the Magistrate Before shall also endorse on the report whether same has been received by the post or muddam. initialing, the - 7 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted.” the 20. Therefore, under Rule 1, 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 the shall be conducted. Considering mandatory requirement of Section 155(1) and (2) of Cr. P.C., and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State. stop hereafter i) The Jurisdictional Magistrates shall making endorsement as ‘permitted ’ on the itself Such an police endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr. P.C. requisition requisition ii) When is the 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 - 8 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 continued should be proceedings in the case. for further the the requisition iii) When to is submitted Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition. 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. 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 the be other complainant. informant or than 21. Coming to the case on hand, the SHO of Kagwad Police Station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to - 9 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 investigate the offence under Section 87 of the K.P. Act which is a non-cognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:— “Perused materials. Permitted Sd/-” 7. On perusal of the requisition given by the police on 06.12.2018, the Magistrate made an endorsement on the requisition stating that three persons were involved in betting on cricket match at Monthero house in Permannur village and hence, permission was accorded. On bare reading of the permission given by the Magistrate, it does not reveal that FIR required to be registered or investigation in the matter is required to be conducted. Simply, the Magistrate has stated that permission is accorded. After going through the requisition, there is no separate order sheet found for obtaining permission and even the police after obtaining permission, arrested the accused persons, registered a case against the accused for the purpose of taking cognizance. It is well settled that in case of a non cognizable offence, the police after receiving information have to enter or cause to be entered the substance of such commission in - 10 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 a book maintained by such Officer and then refer the informant to the Magistrate for the propose of getting permission under Section 155 (1) and (2) of Cr.P.C. Then Magistrate should accord permission to register FIR and to conduct investigation in the matter under Section 155(2) of Cr.P.C. 8. Perusal of the criminal proceedings and the records, there was no procedure followed by the police officer while registering the FIR and also subsequently while filing of charge sheet against petitioner-accused No.3. Therefore, granting permission by the Magistrate suffers from irregularity and the same requires to be quashed. 9. Therefore, the criminal the petition is allowed. The criminal proceedings in C.C. No.2829/2019 on the file of JMFC, VII Court, Mangaluru against the present petitioner is hereby quashed.” 4. Per contra, learned HCGP does not dispute that the offence alleged against the petitioner is non cognizable offence. It is also submitted that necessary permission had not been obtained by the Investigating Officer before proceeding further in the matter. - 11 - NC: 2025:KHC:202 CRL.P No. 2363 of 2024 5. In view of the aforesaid facts and circumstances and undisputed fact that necessary permission had not been obtained by the Investigating Officer as mandated under Section 155(1) and (2) of Cr.P.C and judgment of this Court in the case of Melwin Vishwas D Souza as stated supra, I am of the considered opinion that the impugned proceedings qua the petitioner/accused No.2 in C.C.No.3895/2020 deserves to be quashed. 6.
Decision
In the result, I pass the following: ORDER i) The petition is hereby allowed. ii) The proceedings in C.C.No.3895/2020 on the file of III Addl. Civil Judge and JMFC Court, Udupi is hereby quashed qua the petitioner/accused No.2. In view of disposal of the main petition, pending interlocutory application does not survive for consideration. Sd/- (S.R.KRISHNA KUMAR) JUDGE MDS List No.: 1 Sl No.: 15