Karnataka High Court
Sri.Lokesh vs State Of Karnataka By on 23 July, 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 JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 10114 OF 2025
BETWEEN:
1. SRI.LOKESH
S/O BASAVARAJU AGED ABOUT 41 YEARS, R/AT
BOODANOOR VILLAGE, RAMANATHAPURA HOBLI,
ARKALGUD TALUK,
HASSAN DISTRICT-573130
2. SRI.PRADEEP. M
S/O LATE MADESHA AGED ABOUT 28 YEARS, R/AT
HALE NAYAKARA BEEDHI, NEAR JAMIA MASJID,
BANNUR TOWN, T.N PURA TALUK, MYSORE
DISTRICT-571101
...PETITIONERS
(BY SRI. ABHAY R.S.,ADVOCATE)
Digitally signed AND:
by
SHARADAVANI
B
Location: High
Court of 1. STATE OF KARNATAKA BY
Karnataka
MANDI POLICE STATION, MYSORE REP BY STATE
PUBLIC PROSECUTOR, HIGH COURT COMPLEX,
BENGALURU 560001.
2. SRI VISHWANATHA K
POLICE SUB INSPECTOR,
AGED ABOUT MAJOR,
MANDI POLICE STATION,
MYSORE 570001
...RESPONDENTS
(BY SMT. SOWMYA R. HCGP FOR R1 & R2)
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CRL.P FILED U/S 482 CR.P.C (U/S 528 BNSS) BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO QUASH THE
ENTIRE CRIMINAL PROCEEDINGS INITIATED AS AGAINST
THE PETITIONER NOs.1 AND 2 IN CC.NO.8614/2022
ARISING OUT OF CR.NO.68/2021 FILED BY RESPONDENT
NO.1 MANDI P.S., MYSORE, PENDING ON THE FILE OF II
JMFC COURT, AT MYSORE, FOR THE OFFENCES P/U/S 32
OF KARNATAKA EXCISE ACT, U/S 51(b) OF THE DISASTER
MANAGEMENT ACT, U/S 188 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioners seek the following
reliefs:
“Wherefore the petitioner No.1 most humbly
pray that this Hon’ble Court may kindly be
pleased to quash the entire criminal proceedings
initiated as against the petitioner No.1 and 2 in
CC No.8614/2022 (CRIME No.68/2021) pending
on the file of II JMFC Court at Mysore filed by
respondent No.1 Mandi police station, Mysore for
the offences punishable under Sections U/s.,32
of Karnataka Excise Act and U/s 51(b) of the
Disaster Management Act and U/s 188 of IPC in
the interest of justice and equity.”
2. Heard.
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3. A perusal of the material on record will indicate
that the respondents registered FIR in Crime No.68/2021
dated 15.8.2021 for the offence punishable under Section
32 of Karnataka Excise Act, Section 51(b) of the Disaster
Management Act and Section 188 of IPC against the
petitioners.
4. In pursuance of the said complaint, the
respondents have filed a charge sheet, which is currently
pending in CC No.8614/2022 before the Trial Court.
5. A perusal of the material on record will indicate
that insofar as the offence punishable under Section 32 of
the Karnataka Excise Act is concerned, before conducting
the impugned search and seizure, whereby the alleged
liquor bottles from the petitioners were seized, the
respondents had not obtained any search warrant, so also,
necessary reasons to believe had not been recorded in
writing so as to dispense with the obtaining of search
warrant as mandatorily required under Section 54 of
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Karnataka Excise Act. This Court in the case of Shiva
Kumar -vs- The State of Karnataka and anr. in Crl.P
No.5879/2024 (DD 21.1.2025) reads as under:
“In this petition, the petitioner-accused seeks quashing of
the impugned proceedings in C.C. No.993/2023 on the file
of the Principal Civil Judge and JMFC., Hoskote, Bengaluru
Rural District against the petitioner for the offences
punishable under Sections 11, 12, 14, 32 and 38A of the
Karnataka Excise Act, 1965.
2. Heard learned counsel for the petitioner and
learned High Court Government Pleader for respondents
and perused the material on record.
3. In addition to reiterating the contentions urged in
the petition and referring to the material on record, learned
counsel for the petitioner submits that, before conducting
the impugned search and seizure on 05th June, 2021,
whereby, the respondents are alleged to have seized the
liquor bottles from the petitioner, it was incumbent upon the
respondents to either obtain a warrant or record reasons to
believe in writing so as to dispense with the obtaining of
warrant as mandated under Section 54 of the Karnataka
Excise Act. In this context, it is submitted that, in the
absence of reasons to believe recorded in writing so as to
dispense with the requirement of obtaining of warrant, the
impugned proceedings resulting in seizure of liquor bottles
from the petitioner and culminating in the impugned F.I.R.
and charge sheet are contrary to the aforesaid provisions
and the same deserves to be quashed.
4. Secondly, learned counsel for the petitioner
invited my attention to the impugned F.I.R. and charge
sheet in order to point out that before registering the F.I.R.,
it was incumbent upon the respondents to file a report. In
this regard, it is submitted that, except conducting search
and seizure on 05th June, 2021 and drawing up a mahazar,
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a separate report in this regard was not filed by the
respondents before registration of F.I.R., which would also
vitiate the impugned F.I.R. and charge sheet. In support of
his submission, learned counsel for the petitioner placed
reliance on the judgment of this Court in the case of
DAYANANDA @ R. BABU AND ANOTHER vs. THE
STATE OF KARNATAKA REP. BY EXCISE SUB-
INSPECTOR, HUNSUR RANGE in Criminal Revision
Petition No.129 of 2021 disposed of on 04th April, 2024 and
in the case of CHENGAPPA M.S. vs. THE STATE BY
EXCISE POLICE STATION, HUNSURU in Criminal Petition
No.10259 of 2021 disposed of on 22nd March, 2024.
5. Per contra, learned High Court Government
Pleader for respondents 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 indicate
that the learned counsel for the petitioner is correct in his
submission that before conducting the impugned search
and seizure, whereby, the alleged liquor bottles from the
petitioner were seized, the respondents had not obtained
any search warrant; so also, necessary reasons to believe
had not been recorded in writing so as to dispense with the
obtaining of search warrant as mandatorily required under
Section 54 of the Karnataka Excise Act.
7. Under identical circumstances, the Co-ordinate
Bench of this Court held as under:
In Criminal Petition No.10259/2021.
“ORDER
This petition is filed by the petitioner-accused under
Section 482 of Cr.P.C. for quashing the criminal proceedings in
C.C. No.63/2021 pending on the file of principal Civil Judge and
JMFC, Hunsur, arising out of Crime No.14/2019-
20/2610SIE1/261010 registered by Karnataka Excise
Department, Hunsur Sub-Division, Hunsur, Mysuru, for the
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offences punishable under Sections 11, 14, 32, 34, 43(A) of
Karnataka Excise Act, 1965 (for short ‘K.E. Act’).
2. Heard the learned counsel appearing for the petitioner
and learned High Court Government Pleader for respondents.
3. The case of the complainant is that he received
information from one R. Somashekhar, Assistant Horticulture
Officer, HD Kote Taluk SST-2, who was working in the temporary
check post of Manuganahalli, alleging that on 16.11.2019, the
election code of conduct was in force and during 2019 Karnataka
Assembly Elections, Hundai Crerta 4 wheel vehicle was carrying
liquor. When the vehicle was searched around 3.50 p.m., 12
bottles of 750 ML Morpheus XO Blended Premium Brandy were
apprehended. After the receipt of intimation, the excise inspector
along with team went to the spot, seized the liquor and the car,
and thereafter, went to the police station and registered FIR and
in turn, filed charge sheet which is under challenge.
4. Learned counsel for the petitioner has contended that
there is violation of Sections 53 and 54 of the K.E. Act. Without
recording reasons, the respondent has arrested the petitioner
and seized the liquor and produced before the Court. There is no
reference in the FIR of recording reasons, but in the spot
mahazar, the respondent has subsequently added the record of
reasons, and the respondents have not obtained warrant under
Section 53 of the K.E. Act. Therefore, seizing the articles,
registering the FIR without recording reasons and
commencement of investigation, is violation of the provisions of
the K.E. Act. Therefore, the FIR is not sustainable. Hence,
prayed to allow the petition.
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In support of his arguments, the learned counsel has
relied up on the following judgments of the Hon’ble Supreme
Court and this Court:
(i) K.L. Subbayya Vs. State of Karnataka – (1979) 2 SCC 115.
(ii) L Srinivas Vs. The Authorised Officer and another – ILR
1999 KAR 2872.
(iii) Sri. Abhijeet Lalchand Landge And Others Vs. State of
Karnataka And Another in Criminal Petition
No.5855/2019 Dated on 26.11.2019.
(iv) Kumar vs. State of Karnataka And Another in Criminal
Petition No.8658/2019 Dated on 08.01.2020.
(v) Babu Naika And Others Vs. State of Karnataka in Crl.R.P.
No.52/2014 decided on 09.03.2020.
5. Per contra, learned High Court Government Pleader
has opposed the petition and contended that the respondent,
after following all the procedures, has arrested the petitioner and
therefore, prayed for dismissing the petition.
6. Having heard the learned counsel appearing for the
parties, perused the records.
7. On perusal of the records, it is clear that one
Somashekhar, Assistant Horticulture Officer, gave an intimation
to the Excise Inspector that at 3.50 p.m., they apprehended the
person having liquor of 10 bottles of brandy, without permit or
licence, which is in violation of the provisions of the K.E. Act. The
Excise Inspector seized the articles under Panchanama and
thereafter, came to the police station and registered FIR.
8. The contention of the petitioner is that though in the
panchanama, it is mentioned that FIR was prepared after
recording the reasons for not obtaining the warrant under Section
53 of the K.E. Act, there is possibility of the accused flee away
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from the case and escape from the clutches of law. Record of
reasons to be recorded before obtaining the warrant. In FIR, it is
stated that the Excise Inspector came to the spot, seized the car
and apprehended the accused and came to the office and
registered FIR. There is no mention about reducing into writing of
reasons or not recording reasons under section 54 of the K.E.
Act, which is mandatory.
9. As per Section 53 of the K.E. Act, in any case, there is
apprehension by the officer that there is chance of accused
fleeing away from the justice, the question of coming to the Court
for obtaining warrant, does not arise. Here, in this case, there is
an electron officer in the check post and he has already caught
the accused red hand and kept in his custody. Therefore, Excise
Inspector is required to obtain the warrant under Section 53 of
the K.E. Act as there is no chance of the petitioner flee away from
the spot.
10. That apart, either in the complaint or in the FIR, which
is registered by the respondent-complainant, he has not
whispered anything about the record of reasons for visiting the
spot or apprehending the accused, whereas in the panchanama,
the record of reasons is mentioned and it was reduced into
writing, thereafter, went to the spot. The record of reasons has
not accompanied with the FIR in order to show that the
complainant has obtained warrant before registering the FIR. He
visited the spot and registered the FIR. There is clear violation of
the provisions of the K.E. Act. There is no mention in the FIR for
not obtaining warrant, but it is mentioned in panchanama and it is
only after thought. It is not sent immediately after the seizure
along with PF and FIR. Such being the case, the panchanama
appears to be created by the investigation officer after filing of the
charge sheet or before filing of the charge sheet. The entire
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bottles were not sent to the examination and only four bottles
were sent. Here also, the violation of the provisions of the K.E.
Act is found.
11. This Court, in the case of DAMERA UPENDRA RAO
AND ANOTHER VS. STATE BY EXCISE DEPARTMENT
POLICE in Criminal Petition No.2121/2022 decided on
14.12.2022, has considered the aforesaid aspect and quashed
the proceedings. Further, in the case of G. PUTTARAJU Vs.
STATE OF KARNATAKA AND ANOTHER in Writ Petition
No.20816/2023 decided on 31.01.2024, this Court has already
held that without registering FIR, commencement of investigation,
is in violation of the provisions of the Cr.P.C. 12. That apart,
sending the less quantity of the bottles than the seized quantity of
bottles for examination, and without recording the reasons for not
obtaining warrant, seizing the articles and commencing the
investigation without registering FIR, is violative of the provisions
of the K.E. Act as well as Cr.P.C. Therefore, the criminal
proceedings is not sustainable in law.
12. That apart, sending the less quantity of the bottles
than the seized quantity of bottles for examination, and without
recording the reasons for not obtaining warrant, seizing the
articles and commencing the investigation without registering
FIR, is violative of the provisions of the K.E. Act as well as
Cr.P.C. Therefore, the criminal proceedings is not sustainable in
law.
13. Therefore, the criminal petition is allowed. The
criminal proceedings in C.C. No.63/2021 pending on the file of
principal Civil Judge and JMFC, Hunsur, arising out of Crime
No.14/2019-20/2610SIE1/261010 registered by Karnataka Excise
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Department, Hunsur Sub-Division, Hunsur, Mysuru, is hereby
quashed.”
In Criminal Petition No.278 of 2018
c/w
Criminal Petition No.279 of 2018
“ORDER
The petitioner-accused No.2 has filed these criminal
petitions under Section 482 of Cr.P.C. for quashing the criminal
proceedings in C.C. No.293/2017 and 277/2015 respectively,
both on the file of the Civil Judge and Judicial Magistrate First
Class, Narasimharajapura wherein the petitioner was charge
sheeted by the respondent for the offences punishable under
Sections 32 and 34 of the Karnataka Excise Act, 1965
(hereinafter referred to as ‘Act’ for short).
2. Heard learned counsel for the petitioner in both case
and the learned High Court Government Pleader for respondent
State.
3. The case of the prosecution in criminal petition
No.278/2018 is that one K.R. Sunitha, Police Sub-Inspector of
N.R. Pura Police Station, filed a complaint alleging that she
received credible information that on 24.09.2016 at 6.30 a.m.
when she was on patrolling duty, accused No.1-Padmanabha
was selling liquors in front of provision store without any permit or
licence. Immediately, the complainant-officer along with panchas
went to the spot, seized liquor bottles under panchanama and
came back to police station, registered a case in Crime
No.111/2016 for the offences punishable under Sections 32 and
34 of the Act. During investigation, it was found that accused
No.1 given voluntary statement that the petitioner-accused No.2
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supplied liquors to him. Therefore, the police filed charge sheet
against the petitioner-accused No.2, which is under challenge.
Whereas in Criminal Petition No.279/2018, the case of the
prosecution is that, on 13.02.2015, one Sadananda, who is a
Police Circle Inspector, filed a complaint alleging that he received
credible information that on 13.02.2015 at 7.30 a.m., Halesha-
accused No.1 said to be selling liquors without permit or licence
in front of his shop. Immediately, he along with panchas went to
the spot and seized 13 pouches of Amrut’s Silver Cup Brandy, 11
pouches of Haywards Cheers Whisky, 17 tetra packs of 3 Aces
Whiskey and other brands of whisky, totaling worth Rs.1,888/-,
which is more than the permissible quantity. After registering the
case, during investigation, it was revealed that the petitioner-
accused No.2 supplied liquor to the accused No.1 in the present
cases. Therefore, the police filed charge sheet against the
petitioner showing him as accused No.2, which is under
challenge.
4. In both cases, as the issue and point of law is one and
the same and as the petitioner-accused No.2 is also one and the
same, they are taken for common disposal.
5. Learned counsel for the petitioner has mainly argued
that before going to search and seize the property, the police
officer or police department officials shall request permission to
issue search warrant form the Magistrate to search or seize the
liquors as required under Section 53 of the Act and if the officials
are unable to get warrant and they want to proceed, immediately
they have to write reasons and record in a dairy maintained by
the officer and proceed as per Section 54 of the Act. The police
officials have not followed the mandatory provisions of Sections
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53 and 54 of the Act. Therefore, the criminal proceeding against
the petitioner is not sustainable.
In respect of his arguments, the learned counsel for the
petitioner has relied upon the judgment of Hon’ble Supreme
Court in case of K.L. Subbayya Vs.State of Karnataka reported
in (1979)2 SCC 115 and also the Coordinate Bench of this Court
in Crl.Appeal No.2619/2012 decided on 18.09.2020.
6. Per contra, learned High Court Government Pleader for
respondent State has contended that the petitioner-accused No.2
has supplied liquor to accused No.1 in both cases and the police
seized the same under panchanama. The petitioner-accused is a
habitual offender and therefore, prayed for dismissing the
petitions.
7. Having heard learned counsel for the parties and on
perusal of the records, it is not in dispute that the police have
seized in front of the shop of accused No.1 wherein he was found
in possession of liquors weighing more than the permissible
quantity without any permit/licence. However, In both cases, the
police officials have not at all stated anything about obtaining
warrant or not given requisition for obtaining warrant as per
sections 53 of the Act and also recorded any reason for not
obtaining warrant as per Section 54 of the Act. They blindly
seized the liquors from the custody of accused No.1. Apart from
that, there is no material placed on record to show that the
petitioner is a habitual offender. Except voluntary statement of
accused No.1 that petitioner-accused No.2 has supplied liquors
to accused No.1, no information is collected by the investigation
officer that the petitioner is running wine shop or the bar. Such
being the case, conducting criminal proceedings against the
petitioner is abuse of process of law.
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8. The Hon’ble Supreme Court in the case of K.L.
Subbayya Vs. State of Karnataka reported in (1979)2 SCC 115
and the Coordinate Bench of this Court in Crl. Appeal
No.2619/2012 decided on 18.09.2020 have quashed the
proceedings against the petitioner therein. Therefore, I am of the
view that the criminal proceedings against the petitioner are liable
to be quashed.
9. Accordingly, both the petitions are allowed. The
criminal proceedings in C.C. No.293/2017 and 277/2015, both on
the file of the Civil Judge and Judicial Magistrate First Class,
Narasimharajapura, are hereby quashed.”
8. As is clear from the aforesaid judgments of this Court,
compliance of provisions contained under Section 54 of the
Karnataka Excise Act is mandatory and non-compliance
thereof and non-obtaining of a search warrant prior to the
search and seizure would vitiate the impugned F.I.R.,
charge sheet and all further proceedings pursuant thereto,
deserves to be quashed.
9. Insofar as the contention regarding registration of
F.I.R. without filing the report as required under Section 154
of the Criminal Procedure Code is concerned, in the case of
DAYANANDA @ R. BABU (supra), under identical
circumstances, the Co-ordinate Bench of this Court held as
under:
“15. On perusal of the entire documents, Ex.P1 is
considered as seizure mahazar under which liquor bottles have
been seized by stating that the accused were transporting it
without having any valid license. It is the submission of learned
counsel for petitioner that the search and seizure conducted
without registration of FIR in respect of cognizable offence is bad
in law is concerned, it is relevant to refer to the provision under
Sections 154 and 157 of Cr.P.C..
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“154. Information in cognizable cases.–(1)
Every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by
such officer in such form as the State Government may
prescribe in this behalf:
[Provided that if the information is given by the woman
against whom an offence under section 326A, section 326B,
section 354, section 354A, section 354B, section 354C,
section 354D, section 376, [section 376A,section 376AB,
section 376B, section 376C, section 376D, section 376DA,
section 376DB], section 376E or section 509 of the Indian
Penal Code (45 of 1860) is alleged to have been committed
or attempted, then such information shall be recorded, by a
woman police officer or any woman officer:
Provided further that–
(a) in the event that the person against whom
an offence under section 354, section 354A, section
354B,section 354C, section 354D, section 376,
section 376A, section 376AB, section 376B, section
376C, section 376D, section 376DA, section
376DB], section 376E or section 509 of the Indian
Penal Code (45 of 1860) is alleged to have been
committed or attempted, is temporarily or
permanently mentally or physically disabled, then
such information shall be recorded by a police
officer, at the residence of the person seeking to
report such offence or at a convenient place of such
person’s choice, in the presence of an interpreter or
a special educator, as the case may be;
(b) the recording of such information shall be
video graphed;
(c) the police officer shall get the statement of
the person recorded by a Judicial Magistrate under
clause (a) of sub-section (5A) of section 164 as
soon as possible.]
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(2) A copy of the information as recorded under sub-
section (1) shall be given forthwith, free of cost, to the
informant.
(3) Any person aggrieved by a refusal on the part of an
officer in charge of a police station to record the
information referred to in sub-section (1) may send the
substance of such information, in writing and by post, to
the Superintendent of Police concerned who, if satisfied
that such information discloses the commission of a
cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police
officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that
offence.
157. Procedure for investigation.–(1) If, from
information received or otherwise, an officer in charge of a
80 police station has reason to suspect the commission of
an offence which he is empowered under section 156 to
investigate, he shall forthwith send a report of the same to
a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person,
or shall depute one of his subordinate officers not being
below such rank as the State Government may, by
general or special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender:
Provided that–
(a) when information as to the commission of
any such offence is given against any person by
name and the case is not of a serious nature, the
officer in charge of a police station need not
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proceed in person or depute a subordinate officer
to make an investigation on the spot;
(b) if it appears to the officer in charge of a
police station that there is no sufficient ground for
entering on an investigation, he shall not
investigate the case.
[Provided further that in relation to an offence of
rape, the recording of statement of the victim shall
be conducted at the residence of the victim or in
the place of her choice and as far as practicable
by a woman police officer in the presence of her
parents or guardian or near relatives or social
worker of the locality.]
(2) In each of the cases mentioned in clauses (a) and (b)
of the proviso to sub-section (1), the officer in charge of
the police station shall state in his report his reasons for
not fully complying with the requirements of that sub-
section, and, in the case mentioned in clause (b) of the
said proviso, the officer shall also forthwith notify to the
informant, if any, in such manner as may be prescribed by
the State Government, the fact that he will not investigate
the case or cause it to be investigated.”
On careful perusal of the above said provisions, it appears
that there are two kinds of FIRs namely, the FIR can be registered
by the informant which was duly signed by him. Secondly, the FIR
can be registered by the police officer himself on any information
received by him. In both the cases, the information should be
reduced into writing and thereafter, the investigation must be
carried out.
16. Ex.P1 being a panchanama, it cannot be termed as a
complaint. FIR cannot be registered on the basis of panchanama,
however, in the present case, the respondent has registered he
FIR on the basis of panchanama which is erroneous and not
proper. The Trial Court ought not to have acted upon such FIR
and cognizance should not have been taken on the strength of the
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said FIR. However, the Trial Court and the Appellate Court have
committed error by considering the said FIR as appropriate and
proper and recorded the conviction. Such conviction would be
rendered as ineffective and the same can be termed as non est in
law.
17. When the registration of FIR itself is void abinitio, the
subsequent proceedings including the judgments are liable to be
set aside. Therefore, the interference by the Revisional Court in
setting aside the concurrent findings is justified.
18. In the light of the observations made above, I proceed
to pass the following:-
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction dated
26.12.2015 and order of sentence dated
29.12.2015 in C.C.No.332/2009 on the file
of Civil Judge and JMFC., Hunsur and its
confirmation judgment and order dated
12.01.2021 in Crl.A.No.12/2016 on the file
of VIII Additional District and
SessionsJudge, Mysuru, Sitting at Hunsur
are set aside.
(iii) The petitioners are acquitted for the
offences punishable under Sections 32, 34
and 38-A of Karnataka Excise Act.
(iv) Bail bonds executed, if any, stand
cancelled.”
10. In the instant case, it is an undisputed fact which is
borne out from the material on record that, except the
mahazar dated 05th June, 2021, a separate/independent
report prior to registration of F.I.R. had not been filed by
the respondents and non-filing of the Police report prior to
the registration of F.I.R. would vitiate the F.I.R., charge
sheet and all further proceedings pursuant thereto as held
by this Court in the case of DAYANANDA @ R. BABU
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(supra). Under these circumstances also, the impugned
proceedings deserves to be quashed.
11. In the result, I pass the following:
ORDER
1) Criminal Petition is allowed; and
2) The entire proceedings in C.C. No.993/2023 on
the file of the Principal Civil Judge and JMFC.,
Hoskote, Bengaluru Rural District against the
petitioner for the offences punishable under
Sections 11, 12, 14, 32 and 38A of the Karnataka
Excise Act are hereby quashed;”
6. Under these circumstances, the impugned
proceedings insofar as Section 32 of the Karnataka Excise
Act deserves to be quashed.
7. Insofar as Sections 51(B) of the Disaster
Management Act and Section 188 of IPC, the said issue is
also covered in the judgment of this Court in the case of
Smt.Roth Sagayi Meri & ors. -vs- State of Karnataka
and anr. in Crl.P No.9129/2024 (DD 25.6.2025),
wherein it is held as under:
“7…………Insofar as the offence punishable under
Section 51 of the Act, 2005 is concerned, under identical
circumstances in the case of D.K Shivakumar v. The
State of Karnataka and another [Crl. P. No.3432/2023
disposed of on 07.07.2023], this Court held as under:
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“The petitioner is before this Court calling in question an
order dated 25.01.2021 by which the concerned Court takes
cognizance of the offences pursuant to PCR.No.1453/2021
and registers a C.C.No.3169/2022 for offences punishable
under Section 51(b) of the Disaster Management Act, 2005
(‘Act’ for short) and Section 188 of the Indian Penal Code,
1860 (‘IPC‘ for short).
2. Heard Sri. Arnav A. Bagalwadi, learned
counsel appearing for the petitioner and Sri. Mahesh
Shetty, learned HCGP appearing for respondents No.1 and
2.
3. The brief facts that leads the petitioner to this
Court in the subject petition as borne out from the
pleadings are as follows:
The petitioner along with others are said to have
taken out a protest with about 350 people against the
BBMP regarding increase of property tax. The allegation
is, it was taken, despite the guidelines of Covid-19 existing
at that point in time. The crime comes to be registered on
04.01.2022 on the said allegation. The learned Magistrate
by his order dated 25.01.2022, takes cognizance of the
offence and registers a C.C.No.25317/2022 and issue
summons to the accused. The petitioner is accused No.1.
The taking of cognizance is what drives the petitioner to
this Court in the subject petition.
4. The learned counsel appearing for the
petitioner would contend that there has been violation of
Section 60 of the Act, inasmuch as no notice as is required
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under Section 60(2) has been issued to the petitioner, prior
to taking of the cognizance of the offence under Section
51(b) of the Act. He would submit that Section 188 of the
IPC is an offshoot of Section 51 of the Act and therefore,
proceedings should be quashed.
5. The learned High Court Government Pleader
on the other hand would seek to refute the submissions to
contend that the charge sheet has already been filed and
therefore, the further proceedings must be permitted to be
continued, as the petitioners are guilty of violating the Act.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel and
have perused the material available on record.
7. The afore-narrated facts are not in dispute.
The issue lies in a narrow compass, as to whether the
learned Magistrate could have taken cognizance of the
offence under Section 51(b) of the Act. To consider the
said issue, it is germane to notice certain provisions of the
Act. Section 51 of the Act deals with punishment for
obstruction and reads as follows:
“51. Punishment for obstruction, etc.–(1) Whoever,
without reasonable cause– –(1) Whoever, without
reasonable cause–”
(a) obstructs any officer or employee of the Central
Government or the State Government, or a
person authorised by the National Authority or
State Authority or District Authority in the
discharge of his functions under this Act; or
(b) refuses to comply with any direction given by
or on behalf of the Central Government or the
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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.
(Emphasis supplied)
Section 51(b) of the Act directs that whoever would
refuse to comply with any direction given by or on behalf of
the Government, as the case would be, become an offence
under the Act.
8. Section 60 of the Act deals with cognizance for the
offences and reads as follows:
“60. Cognizance of offences.–No court shall take
cognizance of an offence under this Act except on a
complaint made by–
(a) the National Authority, the State
Authority, the Central Government, the State
Government, the District Authority or any other
authority or officer authorised in this behalf by that
Authority or Government, as the case may be; or
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(b) any person who has given notice
of not less than thirty days in the manner
prescribed, of the alleged offence and his
intention to make a complaint to the National
Authority, the State Authority, the Central
Government, the State Government, the District
Authority or any other authority or officer
authorised as aforesaid.”
(Emphasis supplied)
Section 60(b) mandates that, if cognizance is to be
taken for an offence punishable under Section 51 of the Act,
a person who is arrayed as accused should have been given
a notice not less than 30 days in the manner prescribed.
9. The prescription is in terms of the Rules.
Rules, i.e. the Disaster Management (notice of alleged
offence) Rules, 2007. Rule 3 of the said Rules, reads as
follows:
“3. Notice of alleged offence and intention to
make a complaint .–A notice under clause (b) of
section 60 of the Act by a person, of the alleged
offence and his intention to make a complaint
shall be delivered to, or left at, the office of one
of the following–
(a) in the case of the Central Government, except
where the complaint relates to a railway, the
Secretary incharge of the concerned Ministry or the
Department in that Government;
(b) in the case of the Central Government where the
complaint relates to a railway, the General Manager
of that railway;
(c) in the case of State Government, the Secretary
incharge of the concerned Department in that
Government;
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(d) in the case of the National Authority, the
Secretary or, if there is no Secretary, the Additional
Secretary, of the National Authority;
(e) in the case of a State Authority, the Chief
Executive Officer of the State Authority;
(f) in the case of a District Authority, the Chief
Executive Officer of the State Authority.”
(Emphasis supplied)
The Rule mandates that a notice under Section 60(b)
of the Act by any person should be issued on/of his intention
to make a complaint, and that shall be delivered to the
person against whom complaint is said to be made. The
manner of issuance and delivery are narrated from (a) to (f).
Therefore, there is prescription under the Rules as to the
action to be taken under Section 60(b) of the Act.
10. On the bedrock of the aforesaid mandate under
the Act and the Rules, the case at hand requires to be
noticed. The incident takes place on 04.01.2021, around
10.30 a.m. and the crime is registered on 04.01.2021 for the
offence punishable under Section 51(b) of the Act and
Section 188 of the IPC. The learned Magistrate takes
cognizance of the offence on 25.01.2022. The order of the
learned Magistrate taking cognizance reads as follows:
“Perused the compliant. Complainant is a
Public Servant. Hence, recording of Sworn
Statement is dispensed with as contemplated
u/s.200 of Cr.P.C. cognizance is taken for the
offence punishable u/s.51(b) of NDA Act.
I have perused the documents produced
by the complainant and considered the
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allegation made in the complaint. The allegation
are supported by documents and if allegations
are not denied the same will lead to the
conviction of the accused.
There are sufficient materials to issue
process against the accused. Accordingly, I
proceed to pass the following order:
ORDER
1. Register the case as CC
2. Issue summons against accused no.1 to
9 for the offence punishable u/s. 51(b) of
NDA Act.
3. Call on: 26.02.2021.”
(Emphasis added)
The learned Magistrate prior to taking cognizance
ought to have noticed the rigor of Section 60(b) as to
whether a notice has been issued to the accused in terms of
Rule 3 of the said Rules (supra). Ostensibly, the mandate
under the Act or the Rules is not followed by the complainant
and it is not even noticed by the learned Magistrate prior to
the taking of cognizance. It is therefore, contrary to law.
11. In the light of it being contrary to law, is
resultantly rendered unsustainable. The unsustainability of
it, would lead to its obliteration.
12. For the aforesaid reasons, following
ORDER
I. Criminal petition is allowed.
II. The order dated 25.01.2021 passed in
C.C.No.3169/2022 on the file of the 42nd Additional Chief
Metropolitan Magistrate, Bengaluru stands quashed qua
the petitioner.”
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8. In the instant case, the material on record will also
indicate that the petitioners cannot be said to be guilty for
the offence punishable under Section 51 of the Act, 2005
and consequently, the impugned proceedings qua the
petitioners for the alleged offence also deserves to be
quashed.
9. Insofar as the allegations pertaining to
Section 353 of IPC are concerned, in the case of Syed
Esa Ibrahim and another v. State of Karnataka and
another [NC:2023: KHC: 38832], this Court held as
under:
“Petitioners – accused Nos.1 and 2are sought to be
prosecuted for the offences under Sections 341, 353, 506
and 114 r/w Section 34 of IPC.
2. Case of the prosecution is that; accused No.1
was running the hotel business beyond 11.30 pm on the date
of incident, and when the complainant and other police
personnel questioned the same, the accused abused them
with unparliamentary words, and threatened them with dire
consequences and restrained them from discharging their
official duties.
3. Learned counsel for the petitioners submits that
even accepting the allegations made against the petitioners,
on the face of it, does not satisfy the essential elements to
constitute the commission of the alleged offences. Therefore,
the continuation of the criminal proceedings would be an
abuse of process of law.
4. Learned High Court Government Pleader for the
State submits that the petitioners by restraining the police
personnel from discharging their duties and abusing them
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have committed the aforesaid offences and the veracity of
the allegations can be considered at the time of trial and the
same cannot be gone into in this petition.
5. Considered the submissions made by the learned
counsel for the parties.
6. Section 353 of IPC deals with assault or criminal
force to deter the public servant from discharge of his duties
and it reads thus:
“353. Assault or criminal force to deter public
servant from discharge of his duty. – Whoever
assaults or uses criminal force to any person
being a public servant in the execution of his
duty as such public servant, or with intent to
prevent or deter that person from discharging
his duty as such public servant, or in
consequence of anything done or attempted to
be done by such person to the lawful discharge
of his duty as such public servant, shall be
punished with imprisonment of either
description for a term which may extend to two
years, or with fine, or with both.”
7. To constitute an offence under Section 353 of IPC,
a person must have assaulted or used criminal force in
deterring the public servant from discharging the official
duties. The term ‘criminal force’ is defined under Sections
349 and 350 of IPC. A reading of the aforesaid provisions
indicate that, to use criminal force means causing injury, fear
or annoyance to the person against whom criminal force is
used.
8. In the instant case, there is no allegation, much
less, any material against the petitioners herein, either
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assaulting or using criminal force, so as to deter the police
personnel from discharging their duties, except that the
petitioners abused and threatened the police personnel
which does not satisfy the requirement of Sections 349 and
350 of IPC. Therefore, the essential elements to constitute
the commission of an offence under Section 353 of IPC is
conspicuously absent.
9. Though it is alleged that the petitioners are running
the hotel beyond the stipulated period, utmost may constitute
an offence under Section 188 of IPC and the cognizance of
the said offences can be taken only upon a complaint in
writing by the officers prescribed under Section 189 of IPC.
However, the police to overcome the said provision have not
invoked the said provision.
10. To constitute an offence under Section 341 of IPC,
a person must have wrongfully restrained another person
from proceeding beyond circumstantial limits. In the instant
case, there is no allegation or material that the petitioners
restrained the police personnel from proceeding beyond
circumstantial limits, except the allegation that they
restrained the police personnel from discharging their duties.
Threatening the police personnel with dire consequences
has not resulted in breach of public peace or committing any
other offense by the complainant or his staff, which is an
essential ingredient to constitute commission of offence
under Section 506 of IPC. Therefore, in view of the
preceding analysis, the continuation of the criminal
proceedings would not sub-serve the ends of justice.
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Accordingly, the criminal petition is allowed. The impugned
proceeding in C.C.No.1152/2021 on the file of Additional
Civil Judge and JMFC, Channapatna stands quashed.”
10. In the instant case, the material on record
comprising of the FIR, complaint, charge sheet material
etc. would clearly indicate that necessary ingredients
constituting the offence punishable under Section 353 of
IPC are conspicuously absent and not forthcoming and
consequently, the impugned proceedings for this offence
also deserve to be quashed.
11. The offences punishable under Sections 427 and
447 of IPC are also not made out from the material on
record warranting interference in the present petition.
12. Learned counsel for the petitioners submits that
the entire allegations made against the petitioners pertain
to the alleged illegal and unauthorized construction said to
have been made by the petitioners on a Rajakaluve
(storm water drain) which is said to have been
encroached upon by the petitioners. In this context,
learned counsel for the petitioners submits that the
respondent No.2 and the land revenue authorities have
already demolished the wall allegedly put up by the
petitioners on the alleged storm water drain and
consequently, the impugned proceedings deserve to be
quashed on this ground also.
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13. In the result, I pass the following:
ORDER
i. The Criminal Petition is allowed.
ii. The impugned proceedings in C.C. No.3693/2024
arising out of Crime No.263/2022 registered by the
respondent No.1 – Police for the offences punishable
under Section 192-A of the Karnataka Land Revenue
Act, 1964 and Section 51 of the Disaster Management
Act, 2005 as well as Sections 353, 427, 447 read with
Section 34 of the Indian Penal Code, 1860, pending on
the file of the Additional Chief Judicial Magistrate,
Bengaluru Rural District, Bengaluru, insofar as the
petitioners / accused Nos.1 to 3 are concerned, are
hereby quashed.
8. Under these circumstances, the impugned
proceedings initiated under Sections 51(B) of the Disaster
Management Act and Section 188 of IPC deserve to be
quashed.
In the result, I pass the following:
ORDER
i) The petition stands allowed.
ii) The impugned proceedings in CC No.8614/2022
(Crime No.68/2021) pending on the file of the learned II
JMFC Court, Mysore for the offences punishable under
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Section 32 of Karnataka Excise Act, Section 51(b) of the
Disaster Management Act and Section 188 of IPC insofar
as the petitioners are concerned, are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BKM
List No.: 1 Sl No.: 43