HANAMANTHASA v. THE STATE OF KARNATAKA, GAJENDRAGAD POLICE STATION, GAJENDRAGAD

AND JMFC COURT, AT RON ARISING OUT OF GAJENDRAGAD POLICE STATION CRIME NO. 199/2023 FOR THE OFFENCES PUNISHABLE U/SEC.78(3) OF KARNATAKA POLICE ACT 1963, IN THE INTEREST OF JUSTICE. E Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) seeking to quash the entire proceedings in C.C.No.36/2024 on the file of Principal Civil Judge and JMFC, Court at Ron for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 (“K.P.Act” for short).

2. Brief facts of the case are that, on 23.12.2023 at about 2.10 p.m., respondent received a credible information that, the petitioner was engaged in mataka, that was played at public place infront of Pawar Savaji Khanavali opposite to Bandi Petrol Pump, Gajendragadh and hence, the respondent and his sub-staff conducted raid and seized an amount of Rs.280/-, a mataka chit and one ball-pen. The respondent prepared seizure panchanama and filed a complaint. On the basis of the complaint, respondent registered a case in Crime No.199/2023 of Gajendragad Police Station, for the offence punishable under Section 78(3) of the K.P.Act. Taking - 3 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 exception to the same, the petitioner has filed the present petition.

3. Learned counsel for the petitioner contended that the complaint filed against the petitioner is misconceived and the alleged offence is a non-cognizable one under the provisions of the criminal procedure Code, the police have no authority to investigate the crime and the police have not complied with the mandatory requirements of Section 155(1) of Cr.P.C. It is contended that, when an officer in-charge of a police station received an information regarding commission of 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. 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 a 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, the proceedings initiated - 4 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 against the petitioner in the charge sheet is liable to be quashed.

4. Heard learned counsel for the petitioner and learned High Court Government Pleader for respondent- State.

5. Learned counsel for the petitioner submitted that, the offence under Section 78(3) of K.P.Act is non-cognizable one and as per Section 155(1) of Cr.P.C., the informant ought to have been referred to the jurisdictional Magistrate and the jurisdictional Magistrate ought to have passed an order, permitting the concerned police to take up the investigation of the case and these are the mandatory requirements of Section 155(1) and (2) of Cr.P.C., but, these proceedings are not followed by the jurisdictional Magistrate and therefore, the proceedings initiated against the present petitioner requires to be held as vitiated and thus, liable to be quashed.

6. The learned High Court Government Pleader submitted that the jurisdictional Magistrate has permitted - 5 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 the concerned police officer to take up the investigation and therefore, there is compliance of Section 155(2) of Cr.P.C.

7. It is not in dispute that, the alleged offence under Section 78(iii) of the K.P.Act is a non-cognizable one and when the report is received by the SHO of a police station in respect of commission of a non- cognizable offence, the SHO has to follow the mandatory requirements of Section 155(1) and (2) of Cr.P.C.

8. Section 155 (1) and (2) of Cr.P.C. reads as follows: "S. 155 - Information as to non-cognizable cases and investigation of such cases. - (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 or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, informant Magistrate. - 6 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 (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."

9. Therefore, in view of the aforesaid proposition of law, it is the duty of the police officer to enter the substance of the 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 Section 155(2) of Cr.P.C. Therefore, unless the police officer is permitted by the Magistrate in a written order to investigate a non- cognizable offence, the police officer does not get the jurisdiction to investigate the matter and file a final report or a charge sheet.

10. This Court the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka1, considering non- compliance of mandatory 1 ILR 2020 KAR 630 - 7 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 provisions of Section 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 the 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 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 - 8 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 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 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 - 9 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024 be other than informant or the complainant."

11. In view of the mandatory requirements stated in Section 155(1) and (2) of Cr.P.C and 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 in the order sheet, which reads as follows: “The SHO Gajendragad P.S. has submitted the chargesheet against theaccused for the offences punishable U/Sec.78(3) of KP Act, under their Station Cr.No.199/2023. I have perused the prosecution papers and the other charge sheet materials which are produced before the Court. After going throught he police report, it prima- facie shows that there are sufficient materials to produced against the accused for the alleged offence. Hence, acting u/s. 190(1)(b) of Cr.P.C, cognizance is taken for the offence punishable U/Sec.78(3) of K.P.Act. Office is directed to register this case in the Register No.III. Issue summons returnable by 2/3/29.” the accused person/s - 10 - NC: 2024:KHC-D:9200 CRL.P No. 101602 of 2024

12. But this Court in catena of decisions held that the said order made in the order sheet is not permissible to exercise by the Trial Court and which has to apply its mind and there is no application of judicious mind in permitting the police officer to take up the investigation for a con- cognizable offence, much-less the Magistrate out to have passed detailed order regard. Under circumstance, the proceedings initiated against the petitioner by the Magistrate, requires to be quashed. Accordingly, this Court pass the following; : ORDER : i. The Criminal Petition filed under Section 482 of Cr.P.C. is allowed. ii. The proceedings initiated in C.C.No.36/2024 on the file of learned Principal Civil Judge and JMFC, Court, Ron for the offence punishable under Section 78(3) of K.P.Act is hereby quashed. Sd/- JUDGE EM/ct-an List No.: 1 Sl No.: 69