Karnataka High Court
Mavalli Shankar vs State Of Karnataka on 23 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 14383 OF 2025 (GM-RES)
BETWEEN:
1. MAVALLI SHANKAR
S/O MUNISWAMAPPA
AGED ABOUT 63 YEARS
ADDRESS AS PER CHARGESHEET
ITI COLONY, DOORAVANI NAGAR
NEAR SBI BANK, KR PURA
BANGALORE-560 016
R/A NO. 151, 9TH CROSS
LALBAGH FORT ROAD, DODDA MAVALLI
BENGALURU - 560 004
2. MAITREYI KRISHNAN
Digitally signed
by KRISHNAPPA D/O NJ KRISHNAN
LAXMI YASHODA AGED 41 YEARS
Location: HIGH
COURT OF ADDRESS AS PER CHARGESHEET
KARNATAKA ITI COLONY DOORAVANI NAGAR
NEAR SBI BANK KR PURA
BANGALORE - 560 016
R/A NO. 16-A, SINGAPURA GARDEN
GUBLALALA GATE KANAKPURA ROAD
BANGALORE - 560 062
3. VENKATESH
S/O RAMACHANDRAIAH
AGED ABOUT 41 YEARS
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ADDRESS AS PER CHARGESHEET
111 COLONY DOORAVANI NAGAR
NEAR SBI BANK KR PURA
BANGALORE-560 016
R/A NO. 187, LAKSHMIPURA
RAMANAGARA TALUK AND DISTRICT-561 201
4. GOWRAMMA
W/O NANJAPPA
AGED ABOUT 56 YEARS
ADDRESS AS PER CHARGESHEET
ITI COLONY DOORAVANI NAGAR
NEAR SBI BANK KR PURA
BANGALORE-560 016
R/A MADESHWARA NILAYA
JAYABHARAT ROAD NETRAVATI LAYOUT
KR PURAM, BANGALORE-560 036
5. GOPAL GOWDA
S/O LATE NAGAPPA
AGED ABOUT 76 YEARS
ADDRESS AS PER CHARGESHEET
ITI COLONY DOORAVANI NAGAR
NEAR SBI BANK KR PURA
BANGALORE-560 016
HAVING ADDRESS AT
CITO OFFICE UDAYA NAGAR
DOORAVANI NAGARA POST
BANGALORE - 560 016
5. HEMANTH
S/O RAMAKRISHNA
AGED ABOUT 35 YEARS
ADDRESS AS PER CHARGESHEET
ITI COLONY DOORAVANI NAGAR
NEAR SBI BANK KR PURA
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BANGALORE - 560 016
R/A NO. 51, 11TH CROSS
CD RAMANNA BUILDING
VIGNESHWARA NAGARA
SUNKADAKATTE
BANGALORE - 560 091
...PETITIONERS
(BY SRI. SRUTI C., ADVOCATE)
AND:
STATE OF KARNATAKA
BY K.R PURAM POLICE STATION
REP. BY THE SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SMT. SOWMYA.R., HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION
482 OF CR.PC., PRAYING TO QUASH TH ORDER (DATE NOT
FORTH COMING IN THE ORDER SHEET) TAKING COGNIZANCE
OF OFFENCE UNDER SECTION 269 OF THE INDIAN PENAL
CODE, 1860 AGAINST THE PETITIONERS AND THE
PROCEEDINGS IN C.C.NO. 50077/2023 PENDING ON THE FILE
OF THE LEARNED X ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BANGALORE PRODUCED HEREWITH AS ANNX-B
AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioners seek the following
reliefs:
“WHEREFORE, it is prayed that this Hon’ble Court
be pleased to –
(i) Quash the order (date not forthcoming in the
order sheet) taking cognizance of offence under
Section 269 of the Indian Penal Code, 1860,
against the Petitioners and the proceedings in C.C.
No. 50077/2023 pending on the file of the Learned
X Additional Chief Metropolitan Magistrate,
Bangalore, produced herewith as ANNEXURE-B;
(ii) Pass such other orders/ directions as this Hon’ble
Court may deem fit in the facts and circumstances
of the case, in the interests of justice.”
2. Heard the learned Counsel for the petitioners and
learned High Court Government Pleader for the respondent
and perused the material on record.
3. A perusal of the material on record will indicate
that in the first instance, pursuant to the complaint dated
07.02.2022 filed by the complainant, an FIR was
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registered in Crime No.32/2022 against the petitioners
herein, i.e., accused Nos.1 to 3, 6, 7 and 9 and other
accused persons for the offences punishable under
Sections 188 and 269 of IPC and Section 51(b) of Disaster
Management Act, 2005. In pursuance to the same, the
respondent-Police conducted investigation and filed a
charge sheet before the learned Magistrate, who took
cognizance only of the offence under Section 269 of IPC
and not under Section 188 of IPC and Section 51(a) of
Disaster Management Act, in relation to which the
cognizance was not taken by the learned Magistrate, which
is pending in C.C.No.50077/2023. Aggrieved by the
impugned proceedings against the petitioners for the
alleged offence punishable under Section 269 of IPC, the
petitioners are before this Court by way of the present writ
petition.
4. In addition to reiterating the various contentions
urged in the petition referring to the material on record,
learned Counsel for the petitioners submits that the Trial
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Court having declined/refused to take cognizance for the
primary offence punishable under Section 188 of IPC and
Section 51(b) of Disaster Management Act, it is
impermissible in law to take cognizance in relation to the
impugned offence punishable under Section 269 of IPC,
especially during the COVID-19 period. It is also
submitted that the material on record does not disclose
necessary ingredients attracting offence punishable under
Section 269 of IPC and consequently, the impugned
proceedings deserve to be quashed. In support of her
submissions, learned Counsel for the petitioners has
placed reliance on the following judgments:
1. Sri Rajashekharananda Swamiji and
another v. The State of Karnataka in
W.P.No.13328/2018, dated 18.06.2021;
2. Mr. Vishwesh Madane Vs. The State
through the Police Inspector, Tarikere
Police Station, Tarikere, in W.P.No.5185
of 2021, dated 19.07.2021;
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3. D.K. Shivakumar Vs. State of
Karnataka and Another, in
W.P.No.3329/2023, dated 09.06.2023.
5. Per contra, learned Counsel for the respondent
submits that there is no merit in the petition and the same
is liable to be dismissed.
6. A perusal of the material on record will
undisputedly indicate that insofar as the primary offences
punishable under Section 188 of IPC and Section 51(b) of
Disaster Management Act, the learned Magistrate declined
to take cognizance for the aforesaid offences. As rightly
contended by the learned counsel for the petitioners, so
long as offence under Section 188 of IPC has been
invoked, it is impermissible to split up the same from the
remaining offences as held by this Court in the case of Sri
Rajashekharananda Swamiji’s case supra, which reads
as under:
“Whether the proceedings in C.C.No.3660/2016
on the file of Judicial Magistrate First Class (III
Court), Mangalore, Dakshina Kannada against the
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petitioners are sustainable in law? is the question
involved in this case.
2. 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).
3. 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.
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
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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.
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.
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.
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
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the procedure laid down therein. Section 195(1)(a)
reads as follows:
“195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and
for offences relating to documents given in evidence
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections
172 to 188 (both inclusive) of the Indian Penal
Code, 1860 (45 of 1860 ); or
(ii) of any abetment of, or attempt to commit,
such offence; or
(iii) of any criminal conspiracy to commit such
offence,
except on the complaint in writing of the public
servant concerned or of some other public
servant to whom he is administratively
subordinate;”
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.
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
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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.
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 in State of
Karnataka v. Hemareddy1, the Hon’ble Supreme
Court held as follows:
“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 forwhich 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)
1
(1981) 2 SCC 185
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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.
The impugned first information report,
complaint, the charge sheet and the proceedings in
C.C.No.3660/2016 are hereby quashed.”
7. As can be seen from the aforesaid judgment, in
view of the non-taking of cognizance in relation to primary
offences punishable under Section 188 of IPC and Section
51(b) of Disaster Management Act, the learned Magistrate
clearly fell in error in taking cognizance of the offence
punishable under Section 269 of IPC and consequently,
the impugned proceedings deserved to be quashed on this
ground alone.
8. Under identical circumstances, in relation to
offence punishable under Section 269 of IPC, the co-
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ordinate Bench of this Court has held in the case of
Mr. Vishwesh Madane supra, which reads as under:
“Heard the learned counsel for the petitioner
and learned HCGP for the respondent.
2. Petitioner, who is accused No.7 in Crime
No.153/2021 registered by the Tarikere Town
Police Station, Chikkamagaluru, for the offences
punishable under Section 80 of the Karnataka
Police Act, 1963, Sections 269 and 271 of IPC and
Section 5(1) of the Karnataka Epidemic Diseases
Act, 2020 pending on the file of Principal Civil
Judge (Sr.Dn.) and C.J.M., Tarikere, Chikmagaluru,
has approached this Court with a prayer to quash
the entire proceedings in the said case.
3. Brief facts of the case that would be
relevant for the purpose of disposal of this petition
are:
On the complaint of Inspector of Police of
Tarikere Police Station, Chikmagalur on
03.07.2021, FIR was registered in Crime
No.153/2021 against seven accused persons for
the aforesaid offences. In the complaint it is
averred that having regard to COVID-19 pandemic
when the lockdown as well as Section 144 Cr.P.C.
prohibitory orders were in force, on 03.07.2021,
seven persons allegedly had gathered in room
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No.107 of Chalukya Lodge of Tarikere Town and
were indulged in playing cards game known as
“Andar Bahar” and they were also placing bettings
on their game. On receipt of information about the
cards game being played in room No.107 of
Chalukya Lodge, Tarikere town, the Police
Inspector of Tarikere Town Police Station had
lodged a complaint before the Station House
Officer, based on which FIR was registered in Crime
No.153/2021. Subsequent to registration of the
FIR, the Police had raided the spot and arrested all
the accused persons and they were produced
before the jurisdictional Magistrate. Being
aggrieved by the same the petitioner has
approached this Court to quash the entire
proceedings in the said case.
4. Learned counsel for the petitioner submits
that the offence punishable under Sections 80 of
the Karnataka Police Act, 1963, Section 271 IPC
and Section 5 of the Karnataka Epidemic Diseases
Act, 2020 are non-cognizable offences and without
permission of the jurisdictional Magistrate under
Section 155(2) of Cr.P.C, FIR cannot be registered
against the accused for the said offence. He
submits that offence under Section 269 of IPC will
not be attracted having regard to the simple fact
that none of the accused persons were tested
Positive for COVID-19 and in the absence of such a
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material, the Police could not have invoked Section
269 of IPC. He submits that only for the reason
that permission under Section 155(2) Cr.P.C is
required for registering of case under Section 80 of
the Karnataka Police Act, 1963, Police had
deliberately invoked Section 269 of IPC. He submits
that in identical circumstances, this Court in
Criminal Petition No.2089/2021 disposed of on
08.07.2021 has quashed the proceedings. He also
submits that the High Court of Bombay, Nagpur
Bench in Crl.A.No.453/2020 has held that unless
ingredient under Section 269 of IPC is fulfilled, the
said provision cannot be invoked and accordingly,
prays to allow the petition.
5. Per contra, learned HCGP opposing the
petition would submit that since cognizable offence
has been invoked in the FIR, there is no need to
obtain permission under Section 155(2) of Cr.P.C.
and he submits that having regard to the pandemic
situation, the accused persons should not have
played cards, which was likely to spread disease
and therefore, Police have rightly invoked Section
269 of IPC.
6. I have carefully considered the arguments
addressed on both side and perused the material
on record.
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7. The complainant on receipt of credible
information has lodged a complaint, which has
resulted in registering FIR against the accused
persons for the offence punishable under Section
80 of the Karnataka Police Act, 1963, Sections 269
and 271 of IPC and Section 5(1) of the Karnataka
Epidemic Diseases Act, 2020.
8. Reading of the complaint averments would
clearly go to show that the ingredients for the
purpose of attracting Section 269 of IPC is
completely absent. The petitioners were all found
in a hotel room and therefore, it cannot be said
that they were guilty of unlawfully or negligently
doing any act which they know or they have reason
to believe that it is likely to spread the infection of
any disease dangerous to life. It is not the case of
the prosecution that any one of the accused
persons had tested Positive for COVID-19 and in
the absence of any such material, the offence
under Section 269 of IPC cannot be prima facie
invoked as against the accused persons.
9. In the judgment relied upon by the learned
counsel for the petitioner in Crl.A.No.453/2020
rendered by the High Court of Bombay, Nagpur
Bench, it has been held that unless the ingredients,
which would attract Section 269 of IPC, are found
in the complaint averments, the said provision of
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law cannot be invoked. Further, this Court in
Criminal Petition No.2089/2021 DD 08.07.2021 has
held that deliberate attempt to invoke Section 269
of IPC with an intention to avoid obtaining
permission under Section 155(2) of Cr.P.C. for
registration of a case for non-cognizable offences
cannot be permitted. Except Section 269 of IPC,
the other offences invoked in the present case are
all non-cognizable in nature and therefore, prior
permission under Section 155(2) of Cr.P.C. is
mandatory in nature. In the case on hand, such
permission has not been obtained by the
prosecution. Further, though it is alleged that the
petitioner was indulged in a game of chance, the
complaint averments do not state as to how the
prosecution has come to a conclusion that the
game of cards allegedly played by the petitioner
was a game of chance and not a game of skill.
10. Under the circumstances, I am of the
considered opinion that the prosecution has abused
the process of law by registering a criminal case
against the petitioner invoking the alleged offences
and therefore, for the purpose of securing the ends
of justice, it is necessary to quash the same.
Accordingly, I proceed to pass the following;
ORDER
This Criminal Petition is allowed. The
entire proceedings in Crime No.153/2021
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registered by the Tarikere Town Police
Station, Chikkamagaluru, for the offences
punishable under Section 80 of the
Karnataka Police Act, 1963, Sections 269
and 271 of IPC and Section 5(1) of the
Karnataka Epidemic Diseases Act, 2020
pending on the file of Principal Civil Judge
(Sr.Dn.) and C.J.M., Tarikere,
Chikmagaluru, is quashed as against the
petitioner.
In view of disposal of the petition,
pending I.A. does not survive for
consideration. Accordingly, it stands
disposed of.”
9. Further, another co-ordinate Bench of this Court
in the case of D. K. Shivakumar (supra), has held as
under:
“The petitioner is before this Court calling in
question proceedings in C.C.No.32628/2021,
which arose out of the a private complaint in
P.C.R.No.11/2021, registered on 20.01.2021,
pending before the 42nd ACMM, Bengaluru, for the
offences under Section 269 of the IPC and Section
51(b) of the Disaster Management Act, 2005.
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2. Heard Sri Arnav A.Bagalwadi, learned
counsel for petitioner and Sri Mahesh Shetty,
learned High Court Government Pleader for
respondent No.1.
3. The brief facts of the case germane for
consideration of the lis, as borne out from the
pleadings are as follows:
On 21.01.2021, the petitioner along with
others had staged a Dharna from the City Railway
Station to Freedom Park and was accompanied by
several hundreds of people. Despite existence of
standard operating procedure apart guidelines
and norms issued by the Government on the
onset of COVID – 19. On 23.11.2021, the learned
Magistrate takes cognizance of the offences and
registers a case in C.C.No.32628/2021 against
the petitioner for offences under Section 269 of
the IPC and Section 51(b) of the Disaster
Management Act, 2005.
4. Learned counsel for the petitioner submits
that the issue in the lis stands covered by the
order of this Court in Crl.P.No.100332/2022,
disposed on 07.02.2022, wherein this Court
has considered the very offences and has
obliterated the proceedings against the
petitioners therein and therefore, he seeks very
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same relief granted by this Court in the aforesaid
petition.
5. Learned High Court Government Pleader
would refute the submissions of the learned
counsel for the petitioner to contend that the
petitioner has to undergo trial and come out clean
in the trial. He would admit the position of law
as is laid down by this Court in the aforesaid
petition – Crl.P.No.100332/2022.
6. I have given my anxious consideration to
the submissions made by the learned counsel for
the respective parties and have perused the
material on record.
7. The afore-narrated facts are not in dispute
and requires no reiteration. It is germane to
notice Section 269 of the IPC and Section 51(b)
of the Disaster Management Act, 2005. Section
269 of the IPC reads as under:
“269. Negligent act likely to spread infection
of disease dangerous to life.–Whoever
unlawfully or negligently does any act which
is, and which he knows or has reason to
believe to be, likely to spread the infection of
any disease dangerous to life, shall be
punished with imprisonment of either
description for a term which may extend to six
months, or with fine, or with both.”
Section 51(b) of the Disaster Management
Act, 2005 reads as follows:
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“51. Punishment for obstruction, etc.–
(a) xxxxxxx
(b) refuses to comply with any direction given
by or on behalf of the Central Government or
the State Government or the National Executive
Committee or the State Executive Committee or
the District Authority under this Act, shall on
conviction be punishable with imprisonment for
a term which may extend to one year or with
fine, or with both, and if such obstruction or
refusal to comply with directions results in loss
of lives or imminent danger thereof, shall on
conviction be punishable with imprisonment for
a term which may extend to two years. notes on
clauses Clauses 51 to 58 (Secs. 51 to 58) seeks
to lay down what will constitute an offence in
terms of obstruction of the functions under the
Act, false claim for relief, misappropriation of
relief material or funds, issuance of false
warning, failure of an officer to perform the duty
imposed on him under the Act without due
permission or lawful excuse, or his connivance
at contravention of the provisions of the Act.
The clauses also provide for penalties for these
offences.”
Section 269 of the IPC makes one guilty of the
offence, if by unlawful or negligent act of any
person, results in likelihood of spread of infection
of certain diseases, which is dangerous to life.
There is no allegation of the kind against the
petitioner as is indicated in Section 269 of the IPC
that, due to such an act of the petitioner, there
was spreading of disease. The issue in the case
at hand need not detain this Court or delve deep
into the matter as the issue is covered by the
order rendered by this Court in
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Crl.P.No.100332/2022 disposed on 07.02.2022,
which covers the issue on all its fours. This Court
in the said petition has held as follows:
“3. Brief facts leading to the filing of the present
petition as borne out from the pleadings are as
follows:
On receipt of credible information of the alleged
incident by the complainant-Police Inspector, during
his patrolling duty, that some unknown persons were
playing cards by violating pandemic lockdown
restriction, a raid was conducted and several articles
were seized and accordingly, complaint was registered
for offences punishable under Sections 188, 269 and
Section 80 of the Karnataka Police Act. The police
after investigation have filed charge sheet dropping
section 188 of IPC, but retaining Section 269 of IPC
and Section 80 of the Karnataka Police Act. It is at
that juncture, the petitioners have knocked the doors
of this Court.
4. The issue with regard to registration of the
offences as aforesaid under Section 269 of IPC and
Section 80 of the Karnataka Police Act need not detain
this Court or delve deep into the matter, as the issue
stands covered by the judgment rendered by the Co-
ordinate Bench of this Court in the case of
Mr.Vishwesh Madane V/s. The State of
Karnataka, Tarikeri Police Station in
Crl.P.NO.5185/2021 disposed on 19.07.2021 has
held as follows:
“7. The complainant on receipt of credible
information has lodged a complaint, which has
resulted in registering FIR against the accused persons
for the offence punishable under Section 80 of the
Karnataka Police Act, 1963, Sections 269 and 271 of
IPC and Section 5(1) of the Karnataka Epidemic
Diseases Act, 2020.
8. Reading of the complaint averments would
clearly go to show that the ingredients for the purpose
of attracting Section 269 of IPC is completely absent.
The petitioners were all found in a hotel room and
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therefore, it cannot be said that they were guilty of
unlawfully or negligently doing any act which they
know or they have reason to believe that it is likely to
spread the infection of any disease dangerous to life.
It is not the case of the prosecution that any one of
the accused persons had tested Positive for COVID-19
and in the absence of any such material, the offence
under Section 269 of IPC cannot be prima facie
invoked as against the accused persons.
9. In the judgment relied upon by the learned
counsel for the petitioner in Crl.A.No.453/2020
rendered by the High Court of Bombay, Nagpur Bench,
it has been held that unless the ingredients, which
would attract Section 269 of IPC, are found in the
complainant averments, the said provision of law
cannot be invoked. Further, this Court in Criminal
Petition No.2089/2021 DD 08.07.2021 has held that
deliberate attempt to invoke Section 269 of IPC with
an intention to avoid obtaining permission under
Section 155(2) of Cr.P.C. for registration of a case for
non-cognizable offences cannot be permitted. Except
Section 269 of IPC, the other offences invoked in the
present case are all non-cognizable in nature and
therefore, prior permission under Section 155(2) of
Cr.P.C. is mandatory in nature. In the case on hand,
such permission has not been obtained by the
prosecution. Further, though it is alleged that the
petitioner was indulged in a game of chance, the
complaint averments do not state as to how the
prosecution has come to a conclusion that the game of
cards allegedly played by the petitioner was a game of
chance and not a game of skill.
10. Under the circumstances, I am of the
considered opinion that the prosecution has abused
the process of law by registering a criminal case
against the petitioner invoking the alleged offences
and therefore, for the purpose of securing the ends of
justice, it is necessary to quash the same.
Accordingly, I proceed to pass the following;
Order
This Criminal Petition is allowed. The entire
proceedings in Crime NO.153/2021 registered by the
Tarikere Town Police Station, Chikkamagaluru, for the
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offences punishable under Section 80 of the Karnataka
Police Act 1963, Sections 269 and 271 of IPC and
Sections 5(1) of the Karnataka Epidemic Disease Act,
2020 pending on the file of Principal Civil Judge
(Sr.Dn.) and C.J.M., Tarikere, Chikkamagaluru, is
quashed as against the petitioner.
In view of disposal of the petition, pending I.A.
does not survive for consideration. Accordingly, it
stands disposed of.
Earlier to the aforesaid judgment, a Co-ordinate
Bench of this Court in Crl.P.No.7388/2020 disposed on
02.02.2021. has held as follows:
“7. On perusal of the FIR, case is registered
against the unknown persons and the same was
registered at about 04:00 p.m., after the arrest, the
FIR was also sent to the Court at 05:00 p.m., Having
perused the complaint, there is a 6 force in the
contention of learned counsel for the petitioners that
only in order to take the advantage of non-compliance
of Section 155(1) and (2) or Cr.P.C., the prosecution
has invoked Section 269 of IPC.
8. No doubt, there was a lock down on the date of
the incident and when the credible information was
received, the prosecution ought to have registered the
case invoking Section 154 of Cr.P.C., It is also
important to note that though raid was conducted at
3:00 PM., the FIR was registered at 4:00 p.m.
further, the FIR also discloses that the case was
registered against unknown persons.
9. complaint discloses that an 12.04.2020, at
about 03.30 p.m. complaint and his staff went to the
spot and apprehended these petitioners complainant.
Material available on record are contrary to each other
and hence, this is a fit case to exercise power under
Section 482 of Cr.P.C., to quash the proceedings
initiated against the petitioners for noncompliance of
Section 155(2) of Cr.P.C., Records also disclose 7 that
though cognizable offence was taken place, FIR was
not registered and before registering the FIR, alleged
rapid was conducted.”
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HC-KAR
In the light of the issue standing covered by
the order of this Court on all its fours, which
infact followed the earlier judgment of the Co-
ordinate Bench of this Court in the case of
M.VISHWESH MADANE VS. THE STATE OF
KARNATAKA IN CRL.P.NO.5185/2021
DISPOSED ON 19.07.2021.
8. For the aforesaid reasons, the following:
ORDER
a. The criminal petition is allowed.
b. The proceedings in C.C.No.
32628/2021, pending before the 42nd
ACMM, Bengaluru, stand quashed.
I.A.No.1/2023 is disposed, as a consequence.”
10. In the instant case, a perusal of the material on
record will indicate that necessary ingredients disclosing
commission of offence punishable under Section 269 of
IPC are conspicuously absent and consequently, the
impugned proceedings deserve to be quashed on this
ground also.
11. For the reasons stated above, this Court
proceeds to pass the following:
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ORDER
(i) The Writ Petition is hereby allowed.
(ii) The impugned order (date not
forthcoming in the order sheet) in taking
cognizance of the offence under Section
269 of IPC against the petitioners herein
and all further proceedings in
C.C.No.50077/2023, (in Crime
No.32/2022 registered by K.R.Puram
Police Station) pending on the file of the X
Additional Chief Metropolitan Magistrate,
at Mayohall, Bengaluru, insofar as the
petitioners are concerned, are hereby
quashed and set aside.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
DL
CT:JL