B. KOTRESH v. THE STATE OF KARNATAKA

ORDER

This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') seeking entire proceedings C.C.No.1338/2021 pending on the file of learned Principal Civil Judge and JMFC, Gangavati, the offence punishable under Section 78(iii) of the Karnataka Police Act, 1963 (hereinafter referred to as 'K.P.Act' for short).

Brief facts of the case are that, on 03.03.2021 at about 12.15 p.m., respondent received a credible information that, the petitioner was engaged in playing matka game and hence, respondent and his sub-staff went to the spot, conducted raid and seized an amount of Rs.3,850/-, one matka chits and a ball pen, thus, respondent prepared seizure panchanama and filed a complaint. On the basis of the complaint, respondent registered a case in Crime No.79/2021 for the offence punishable under Section 78(iii) of the K.P.Act. Subsequently, after investigation, the charge sheet was filed against the petitioner for the offence punishable - 3 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024 under Section 78(iii) K.P.Act.

The petitioner has stated that, the complaint 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 the 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. Therefore, the proceeding initiated against the petitioner in the charge sheet is liable to be - 4 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024 quashed.

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

The learned counsel the petitioner submitted that the offence under Section 78(iii) of the K.P.Act is a 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.

The learned High Court Government Pleader submitted that the jurisdictional Magistrate has permitted the concerned police officer to take up the investigation and therefore, there is compliance of Section 155(2) of - 5 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024 Cr.P.C.

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 follow the mandatory requirements of Section 155(1) and (2) of Cr.P.C.

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, 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. " - 6 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024

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.

This Court the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka1, considering non-compliance of mandatory provisions of Section 155(1) and 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 1 ILR 2020 KAR 630 - 7 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024 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.

In view of the mandatory requirements stated in Section 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 not at all passed an order directing the SHO of the police station directing that it is a fit case to be investigated.

Under these circumstances, the proceeding initiated against the petitioner by requires to be quashed. - 9 - NC: 2024:KHC-D:10034 CRL.P No. 102133 of 2024 Accordingly, the Court pass the following: ORDER a. The petition filed under Section 482 of Cr.P.C. is allowed. b. The proceedings initiated against petitioner for the offence punishable under Section 78(iii) the K.P.Act C.C.No.1338/2021 pending on the file of learned Principal Civil Judge and J.M.F.C., Gangavati, is quashed. Sd/- JUDGE AC/ct-an List No.: 1 Sl No.: 43