ANIL v. HARIHAR

(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) This petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, praying to quash the proceedings in C.C. No.2971/2023 pending on the file of the learned JMFC I, Gadag for the offence punishable under Section 78(1)(A)(6) of Karnataka Police Act. (for short K.P. Act).

2. Heard learned counsel for the petitioners and learned HCGP for respondent-State.

3. The case of the prosecution is that on

06.05.2023 at about 07:30 p.m., the respondent – Police received credible information about cricket betting. Therefore, the complainant along with his sub-staff and panchas went to Gangimadi cross, Gadag and conducted raid on the petitioners who were engaged in cricket betting by betting money directly and through the cricket mazza 11 line app on the outcome of the T-20 IPL cricket tournament between Royal Challengers Bengaluru vs. - 3 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR Delhi Capitals teams being held in Delhi. Thus, they conducted raid and conducted panchanama. The complainant recovered a sum of Rs.29,000/- and two mobile phones under seizure panchanama. Hence, a case has been registered in Crime No.34/2023 for the offence punishable under Section78(1)(A)(6) of K.P. Act. This led to registration of FIR and investigation. Taking exception to the same, the petitioners have filed this petition.

4. The learned counsel for petitioners has contended that the 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 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. - 4 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR

5. It is contended that as per Section 155(2) of Cr.P.C., no Police Officer shall investigate a non-cognizable 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 jurisdictional Magistrate permitting the Police to take up the investigation. Therefore, the proceedings initiated against the petitioners pursuant to the charge sheet are liable to be quashed.

6. Learned HCGP contended that the jurisdictional Magistrate has permitted the concerned Police Officer to take up investigation and therefore, compliance of Section 155(2) of Cr.P.C.

7. It is not in dispute that the alleged offence 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 - 5 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR 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. reads as under:- “155.(1) When information is given to an officer in charge of a police-station 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. (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

8. Therefore, in view of the aforesaid proposition of law, it is the duty of the Police Officer to enter the substance of information in the prescribed book and refer 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 - 6 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR 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.

9. This Court in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka reported in ILR 2020 KAR 630, considering non- compliance of mandatory provisions of Sections 155(1) and (2) of Cr.P.C., has held as under: "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 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 Practice, this Court proceed to laid - 7 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR down the following guidelines for the benefit of the judicial Magistrate working in the State. 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. 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. iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine - 7 - NC: 2024:KHC-D:10647 CRL.P No. 101955 of 2024 whether the SHO of the police station has referred informant to him with such requisition. iv) The Jurisdictional Magistrate should examine the contents of the requisition with - 8 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR 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 be other than informant or the complainant."

10. In view of the mandatory requirements stated in Sections 155(1) and (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 non-cognizable offence. Whereas, in the instant case, the learned Magistrate has passed an order on the requisition submitted by the SHO - 9 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR of the Police Station by writing the words as 'IO is directed to conduct the investigation'. But, this Court in catena of decisions held the said endorsement on requisition submitted by the Police Officer is not a judicious order, having applied its mind and there is no application of judicious mind in permitting the Police Officer to take up the investigation for a non-cognizable offence. Therefore, the SHO of a Police Station if received a complaint from the PSI and in turn, the SHO has to submit a requisition to the jurisdictional Magistrate seeking permission to investigate an offence punishable under Section 78(1)(A)(6) of the K.P. Act, which is a non- cognizable offence.

11. It is seen that the jurisdictional Magistrate has made an endorsement stating that 'IO is directed to conduct the investigation'. Therefore, absolutely there is no application of judicious mind by the learned Magistrate before permitting the Police Officer to investigate a non- - 10 - NC: 2025:KHC-D:7460 CRL.P No. 101453 of 2025 HC-KAR cognizable offence, much less, an order passed by the learned Magistrate.

12. It shows that the respondent – Police had no authority investigate the matter. Under circumstances, the proceedings initiated against the petitioners-accused Nos.1 to 3 by the learned Magistrate require to be quashed. Accordingly, the Court passes the following: i) ii) ORDER The petition is allowed. The proceedings initiated against petitioners for the offence punishable under Section 78(1)(A)(6) of the K.P. Act in C.C. No.2971/2023 pending on the file of the learned JMFC I, Gadag insofar as petitioners is hereby quashed. RSH /CT-AN Sd/- (VENKATESH NAIK T) JUDGE