Karnataka High Court
Sri. T.N.R. Rohith vs The State Of Karnataka on 22 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1369 OF 2024
C/W
CRIMINAL PETITION No.2993 OF 2024
IN CRIMINAL PETITION No.1369 OF 2024
BETWEEN:
R.AKHANDA SRINIVASA MURTHY
S/O LATE C.RAMAIAH
AGED ABOUT 52 YEARS
RESIDING AT NO.32
KAVAL BYRASANDRA
R.T.NAGAR POST
BENGALURU - 560 032.
... PETITIONER
(BY SRI MURTHY D.NAIK, SR. ADVOCATE FOR
SRI VIKRAM RAMALINGAM R., ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
BY THE SUB-INSPECTOR OF POLICE
R.T.NAGAR POLICE STATION
BENGALURU CITY
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
2
BENGALURU - 560 001.
2 . SRI MANJUNATH S.M.,
AGED ABOUT 40 YEARS
WORKING AS ASSISTANT ENGINEER
DEPARTMENT OF PUBLIC WORKS
BENGALURU DIVISION
K.R.CIRCLE, CUBBON PARK
BENGALURU - 560 001.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.638/2024 NOW PENDING ON THE FILE OF THE 42ND
A.C.M.M., (SPECIAL COURT FOR TRIAL OF CASES AGAINST
SITTING AS WELL AS FORMER MPs/MLAs TRIABLE BY MAGISTRATE
IN THE STATE OF KARNATAKA) AT BENGALURU FOR THE OFFENCES
P/U/S 171-E, 171-F OF IPC 1860 AND SEC.133 OF
REPRESENTATION OF PEOPLE ACT, 1951, AGAINST THE
PETITIONER/ACCUSED NO.2 AS PER ANNEXURE A AND ETC.,
IN CRIMINAL PETITION No.2993 OF 2024
BETWEEN:
SRI T.N.R.ROHITH
S/O T.N.RAMACHANDRAN
AGED ABOUT 42 YEARS
RESIDING AT NO.4, 5TH CROSS
MUNIVENKATAPPA GARDEN
GANESHA BLOCK, SULTANPALYA
R.T.NAGAR,
BENGALURU - 560 032.
... PETITIONER
(BY SRI MURTHY D.NAIK, SR. ADVOCATE FOR
3
SRI VIKRAM RAMALINGAM R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE SUB-INSPECTOR OF POLICE
R.T.NAGAR POLICE STATION
BENGALURU CITY
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI MANJUNATH S.M.,
AGED ABOUT 40 YEARS
WORKING AS ASSISTANT ENGINEER
DEPARTMENT OF PUBLIC WORKS
BENGALURU DIVISION, K.R.CIRCLE
CUBBON PARK, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.638/2024 NOW PENDING ON THE FILE OF THE 42ND
A.C.M.M., (SPECIAL COURT FOR TRIAL OF CASES AGAINST
SITTING AS WELL AS FORMER MPs/MLAs TRIABLE BY MAGISTRATE
IN THE STATE OF KARNATAKA) AT BENGALURU FOR THE OFFENCES
P/U/S.171-E, 171-F OF IPC, 1860 AND SEC.133 OF
REPRESENTATION OF PEOPLE ACT, 1951, AGAINST THE
PETITIONER/ACCUSED NO.1 AS PER ANNEXURE A AND ETC.,
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
4
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
Both these petitions are preferred by different accused in a
solitary criminal case in C.C.No.638 of 2024 arising out of crime in
Crime No.107 of 2023 of one and the same incident. The petitioner
in Criminal Petition No.1369 of 2024 is accused No.2 and the
petitioner in Criminal Petition No.2993 of 2024 is accused No.1. For
the sake of convenience, facts obtaining in Criminal petition
No.1369 of 2024 are narrated.
2. Heard Sri Murthy D. Naik, learned senior counsel appearing
for the petitioner in both the petitions and Sri B. N. Jagadeesha,
learned Additional State Public Prosecutor appearing for the
respondents.
3. Facts, in brief, germane are as follows:-
The petitioners in both these cases are alleged of offences
punishable under Section 171-E and 171-F of the IPC and Section
5
133 of the Representation of People Act ('the Act' for short). The
2nd respondent is the complainant/Chief of Flying Squad Team.
During the elections to the Karnataka Legislative Assembly which
was slated to be held on 10-05-2023 the squad is said to have got
some credible information on 05-04-2023 at about 5.05 p.m. from
the election control room that some pressure cookers were stored
in a building of particular address of Bangalore and they were
stored to distribute to the voters is the allegation. On receiving the
said information, the 2nd respondent inspects the said premises and
found about 231 cookers having the stickers of accused No.2. The
owner of the premises is the petitioner in the companion petition.
Therefore, both these petitioners are drawn into the web of
proceedings. The 2nd respondent, on the said incident, registers a
complaint which becomes a crime in Crime No.107 of 2023. It is
registered after securing permission from the hands of the learned
Magistrate as the offences alleged were all non-cognizable. The
Police after investigation file a charge sheet for the afore-quoted
offences and the concerned Court takes cognizance of the offence,
registers criminal case in C.C.No.638 of 2024 and issues summons
6
to these petitioners. Issuance of summons is what has driven the
petitioners to this Court in the subject petitions.
4. The learned senior counsel Sri Murthy D. Naik appearing
for the petitioners in both these cases would contend that the
proceedings are vitiated on several circumstances. He would project
that the permission granted by the learned Magistrate under
Section 155(2) of the Cr.P.C. bears no application of mind and the
informant has not travelled to the Court of the learned Magistrate
seeking permission, but it is the Station House Officer who seeks
permission. The ingredients even if they are taken on their face
value would not amount to an offence under Sections 171E and
171F of the IPC and Section 133 of the Act. He would seek to place
reliance upon the following judgments:
(1) ANAND SINGH v. STATE OF KARNATAKA
- Criminal Petition No.3082 of 2007;
(2) B.S.YEDIYURAPPA v. STATE OF KARNATAKA
- 2020 SCC OnLine Kar.1540;
(3) PRAKASH B.HUKKERI v. THE STATE OF KARNATAKA
- Criminal Petition No.200722 of 2022;
(4) VIJESH PILLAI v. STATE OF KARNATAKA
- Writ Petition No.11186 of 2023;
7
(5) PRAKASH RAJ @ PRAKASH RAI v. STATE OF
KARNATAKA
- Criminal Petition No.2394 of 2020;
(6) JAGATH PRAKASH NADDA v. STATE OF KARNATAKA
- Criminal Petition No.5488 of 2023.
5. Per contra, the learned Additional State Public Prosecutor
would refute the submissions to contend that it is not mandatory
that the informant alone should go to the Magistrate seeking
permission. This Court in VIJESH PILLAI v. STATE OF
KARNATAKA1, has considered this issue and has so held. He would
further contend that ingredients of the offences are prima facie
met. Therefore, it is a matter that has to be tried, since charge
sheet is already filed. He would seek dismissal of the petitions.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. The petitioner
in Criminal Petition No.2993 of 2024 is the owner of the premises in
1
2023 SCC OnLine Kar. 32
8
which certain materials bearing the sticker of accused No.2, the
petitioner in the companion petition Crl.P.No.1369 of 2024, who has
contested in the legislative assembly election were found. The
offences alleged against these petitioners while registering the
crime was the ones punishable under Sections 171E, 171F of the
IPC and Section 133 of the Act. Since the entire issue has now
triggered from the complaint, I deem it appropriate to notice gist of
the complaint. The gist of the complaint as obtaining in column
No.10 of the FIR in Crime No.107 of 2023 reads as follows:
"10. ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢AiÀÄ «ªÀgÀUÀ¼ÀÄ
¦AiÀiÁðzÀÄzÁgÀgÀÄ ¸ÀºÁAiÀÄPÀ EAf¤AiÀÄgï ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉ ¨ÉAUÀ¼Æ À gÀÄ
«¨sÁUÀ, PÉ.Cgï ªÀÈvÀÛ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ, gÀªÀgÀÄ ¢£ÁAPÀ 05.04.2023 gÀAzÀÄ oÁuÉUÉ ºÁdgÁV
zÀÆgÀÄ ¤ÃrzÀÄÝ, zÀÆj£À°è w½¹zÉÝãÉAzÀgÉ, vÁ£ÀÄ 2023 gÀ ¸ÁªÀðwæPÀ ZÀÄ£ÁªÀuÉ ¸ÀA§AzsÀ
EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ ¥ÀÄ®PÉò £ÀUÀgÀ «zsÁ£À ¸À¨Ás PÉëÃvÀæ, £ÀA-159 gÀ°è J¥sï.J¸ï.n
vÀAqÀzÀ ªÀÄÄRå¸ÀÜ£ÁVzÀÄÝ, ¢£ÁAPÀ 05/04/2023 gÀAzÀÄ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 5 UÀAmÉ 5 ¤«ÄµÀzÀ
ªÉüÉUÉ ZÀÄ£ÁªÀuÁ PÀAmÉÆæïï gÀÆA ªÀiÁ»wAiÀÄ ªÉÄÃgÉUÉ Dgï.n £ÀUÀgÀzÀ DvÁä£ÀAzÀ PÁ¯ÉÆä,
UÀuÉñÀ ¨ÁèPï, 5£Éà PÁæ¸ï zÀ°ègÀĪÀ ªÀÄ£ÉAiÉÆAzÀgÀ°è ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÉ G®èAX¹ 2023
gÀ «zsÁ£À¸À¨sÁ ZÀÄ£ÁªÀuÉAiÀÄ°è ªÀÄvÀzÁgÀjUÉ D«ÄµÀ MqÀÄتÀ ¸À®ÄªÁV PÀÄPÀÌUÀð¼À£ÄÀ ß
¸ÀAUÀ滹gÀĪÀÅzÁV ªÀiÁ»w §AzÀ ªÉÄÃgÉUÉ, vÁ£ÀÄ vÀ£Àß vÀAqÀzÉÆA¢UÉ ºÁUÀÆ ¸ÀܽÃAiÀÄ
¥Éưøï C¢üPÁjUÀ¼ÉÆA¢UÉ ¸ÀzÀj ¸ÀܼÀPÉÌ ºÉÆÃV, Dgï.n.£ÀUÀgÀzÀ DvÁä£ÀAzÀ PÁ¯ÉÆä, UÀuÉñÀ
¨ÁèPï, 5£Éà PÁæ¸ï£À°ègÀĪÀ ²æà ®Qëöäà ªÉAPÀmÉñÀégÀ ¤¯AiÀÄ PÀlÖqÀzÀ AiÀiÁgÀÆ ªÁ¸À«®èzÀ
£É®ªÀĺÀr ªÀÄ£ÉAiÀÄ ºÁ®ß°è 1). ¨ÁèPï §qïð PÀA¥À¤AiÀÄ ºÀ¼À¢ §tÚ ºÉÆA¢gÀĪÀ ¨ÁPÀì÷μÀ°è
¸ÀĪÀiÁgÀÄ 7.5 °Ãl£Àð 140 PÀÄPÀÌUÀð¼ÀÄ; 2) ¦æ«¯ÉÃeï PÀA¥À¤AiÀÄ ¤Ã° §tÚzÀ ¨ÁPÀì÷μÀ°è
¸ÀĪÀiÁgÀÄ 5 °Ãl£Àð 8 PÀÄPÀÌUÀð¼ÀÄ, 3). J£ï-qÀÄgÁ PÀA¥À¤AiÀÄ PÉA¥ÀÄ ªÀÄvÀÄÛ PÀ¥ÀÄà «Ä²ævÀ
§tÚzÀ ¨ÁPÀì÷μÀ°è ¸ÀĪÀiÁgÀÄ 7.5 °Ãl£Àð 5 PÀÄPÀÌUÀð¼ÀÄ, 4) AiÀiÁð°¸À£ï PÀA¥À¤AiÀÄ ºÀ¹gÀÄ
§tÚzÀ ¨ÁPÀì÷μÀ°è ¸ÀĪÀiÁgÀÄ 5 °Ãl£Àð 13 PÀÄPÀÌUÀð¼ÀÄ, 5) ²æà CRAqÀ ²æäªÁ¸ï ªÀÄÆvÀgï
JA.J¯ï.J ¥ÀÄ®PÉò £ÀUÀgÀ, gÀªÀgÀ ¨sÁªÀavÀæ ºÉÆA¢gÀĪÀ MlÄÖ 65 PÀÄPÀÌUÀð¼À£ÀÄß ºÉÆA¢gÀĪÀ
¨ÁPÀì÷μÀÄ ¸ÉÃj, MlÄÖ 231 PÀÄPÀÌUÀð¼ÀÄ EgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀÛzÉ, £ÀAvÀgÀ ¸ÀzÀj ªÀÄ£ÉAiÀÄ
ªÀiÁ°ÃPÀgÁzÀ gÉÆûvï gÀªÀgÀ£ÀÄß «ZÁj¸À¯ÁV, EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ ¥ÀÄ®PÉò £ÀUÀgÀ
«zsÁ£À¸À¨sÁ PÉëÃvÀæzÀ ¥Àæ¸ÀÄÛvÀ JAJ¯ïJ DVgÀĪÀ ²æà CRAqÀ ²æäªÁ¸À ªÀÄÆwð gÀªÀgÀ
9
¸ÀÆZÀ£ÉAiÀÄAvÉ C£À¢üÃPÀÈvÀªÁV ¸ÀzÀj PÀÄPÀÌUÀð¼À£ÀÄß 2023 gÀ «zsÁ£À¸À¨sÁ ZÀÄ£ÁªÀuÉAiÀÄ°è
ªÀÄvÀzÁgÀjUÉ D«ÄµÀ MqÀÄتÀ ¸À®ÄªÁV PÀÄPÀÌUÀð¼À£ÀÄß ¸ÀAUÀ滹gÀĪÀÅzÁV w½¹zÀ ªÉÄÃgÉUÉ ¸ÀzÀj
MlÄÖ 231 PÀÄPÀÌUÀð¼À£ÀÄß ºÁdgÀÄ¥Àr¹, ¸ÀzÀj ²æà gÉÆûvï ªÀÄvÀÄÛ ²æ CRAqÀ ²æäªÁ¸À ªÀÄÆwð
gÀªÀgÀ «gÀÄzÀÝ PÁ£ÀÆ£ÀÄ jÃvÀå PÀæªÀÄ PÉÊUÉƼÀî¨ÉÃPÉAzÀÄ zÀÆgÀÄ PÉÆnÖzÀÄÝ oÁuÁ J£ï ¹ Dgï
£ÀA.88/2023£ÀÄß ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄPÉÌ C£ÀĪÀÄw PÉÆÃj ªÀiÁ£Àå 32 J¹JªÀiïJªÀiï WÀ£À
£ÁåAiÀÄ®AiÀÄzÀ DzÉñÀzÀAvÉ ¥ÀæxÀªÀÄ ªÀvÀðªÀiÁ£À ªÀgÀ¢AiÀÄ£ÀÄß zÁR°¹gÀÄvÀÛzÉ."
The crux of the complaint was that in the premises of accused No.1
certain cartons of pressure cookers were found totally numbering
231 in which sticker of accused No.2 was found. The Police conduct
investigation and file a charge sheet. The summary of the charge
sheet as obtaining in Column No.17 reads as follows:
"17. PÉù£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À
F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖAiÀÄ ¸ÁQë-1 gÀªÀgÀÄ 2023£Éà ¸Á°£À PÀ£ÁðlPÀ «zsÁ£À¸À¨sÉAiÀÄ
¸ÁªÀðwæPÀ ZÀÄ£ÁªÀuÉAiÀÄ°è EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ ¥ÀÄ°PÉò£ÀUÀgÀ «zsÁ£À ¸À¨sÁ PÉëÃvÀæ - 159
zÀÀ°è ¥ÉèöʬÄAUï ¸ÁÌ÷éqï C¢üPÁjAiÀiÁV ZÀÄ£ÁªÀuÁ PÀvÀðªÀåPÉÌ £ÉêÀÄPÀªÁVzÀÄÝ, CzÀgÀAvÉ ¸ÁQë-2
gÀªÀgÀÄ ¸ÀzÀj ¥ÉèöʬÄAUï ¸ÁÌ÷éqï vÀAqÀzÀ ¸ÀºÀ¸ÀzÀ¸ÀågÁVzÀÄÝ, ¢£ÁAPÀ 05.04.2023 gÀAzÀÄ ¸ÁQë-
1 & ¸ÁQë-2 gÀªÀgÀÄ PÀvÀðªÀåzÀ°èzÀÄÝ, ¸ÀAeÉ 05.05 UÀAmÉAiÀÄ°è ¸ÁQë-4 gÀªÀgÀÄ ¥sÉÆÃ£ï £ÀA§gï-
9880143163 gÀ ªÀÄÆ®PÀ ¸ÁQë-1 gÀªÀjUÉ PÀgÉ ªÀiÁr, Dgï.n £ÀUÀgÀ ¥Éưøï oÁuÁ ¸ÀgÀºÀ¢Ý£À
DvÁä£ÀAzÀ PÁ¯ÉÆä, UÀuÉñÀ ¨ÁèPï, 5£Éà PÁæ¸ï gÀ°ègÀĪÀ ªÀÄ£ÉAiÉÆAzÀgÀ°è ZÀÄ£ÁªÀuÁ ¤Ãw
¸ÀA»vÉ G®èAX¹ 2023gÀ «zsÁ£À¸À¨Ás ZÀÄ£ÁªÀuÉAiÀÄ ªÀÄvÀzÁgÀjUÉ D«ÄµÀ MqÀÄتÀ ¸À®ÄªÁV
PÀÄPÀÌUÀð¼À£ÀÄß ¸ÀAUÀ滹gÀĪÀÅzÁV ¸ÀܼÀPÉÌ vÉgÀ¼ÀĪÀAvÉ ¤ÃrzÀ ªÀiÁ»wAiÀÄ ªÉÄÃgÉUÉ PÀvÀðªÀåzÀ°èzÝÀ
¸ÁQë-1 & ¸ÁQë-2 gÀªÀgÀÄ ¸ÀzÀj ªÀiÁ»wUÀ£ÀÄUÀÄtªÁV ¸ÀܼÀPÉÌ ºÉÆÃV, Dgï.n £ÀUÀgÀzÀ
DvÁä£ÀAzÀ PÁ¯ÉÆä, UÀuÉñÀ ¨ÁèPï, 5£Éà PÁæ¸ïgÀ°ègÀĪÀ ²æà ®Qëöä ªÉAPÀmÉñÀégÀ ¤®AiÀÄ PÀlÖqÀzÀ
AiÀiÁgÀÆ ªÁ¸À«®èzÀ £É®ªÀĺÀr ªÀÄ£ÉAiÀÄ ªÉÄÃ¯É zsÁ½ ªÀiÁqÀ¯ÁV ªÀÄ£ÉAiÀÄ ºÁ®ß°è 1). ¨ÁèPï
§qïð PÀA¥À¤AiÀÄ ºÀ¼À¢ §tÚ ºÉÆA¢gÀĪÀ ¨ÁPïìUÀ¼À°è ¸ÀĪÀiÁgÀÄ 7.5 °Ãl£Àð 140 PÀÄPÀÌgïUÀ¼ÀÄ,
2) ¦æ«¯ÉÃeï PÀA¥À¤AiÀÄ ¤Ã° §tÚzÀ ¨ÁPïìUÀ¼À°è ¸ÀĪÀiÁgÀÄ 5 °Ãl£Àð 8 PÀÄPÀÌgÀUÀ¼ÀÄ, 3)
J£ï-qÀÄgÁ PÀA¥À¤AiÀÄ PÉA¥ÀÄ ªÀÄvÀÄÛ PÀ¥ÀÄà «Ä²ævÀ §tÚzÀ ¨ÁPïìUÀ¼À°è ¸ÀĪÀiÁgÀÄ 7.5 °Ãl£Àð 5
PÀÄPÀÌgÀUÀ¼ÀÄ, 4) AiÀiÁð°¸À£ï PÀA¥À¤AiÀÄ ºÀ¹gÀÄ §tÚzÀ ¨ÁPïìUÀ¼À°è ¸ÀĪÀiÁgÀÄ 5 °Ãl£Àð 13
PÀÄPÀÌUÀð¼ÀÄ, 5) ²æà CRAqÀ ²æäªÁ¸ï ªÀÄÆwð JA.J¯ï.J ¥ÀÄ®PÉò £ÀUÀgÀ, gÀªÀgÀ ¨sÁªÀavÀæ
ºÉÆA¢gÀĪÀ MlÄÖ 65 PÀÄPÀÌUÀð¼À£ÀÄß ºÉÆA¢gÀĪÀ ¨ÁPïìUÀ¼ÀÄ ¸ÉÃj, MlÄÖ 231 PÀÄPÀÌgÀUÀ¼ÀÄ ¹QzÀÄÝ,
DUÀ ¸ÁQë-1 & ¸ÁQë-2 gÀªÀgÀÄ ¸ÀܼÀzÀ°èzÀÝ F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖAiÀÄ J1 DgÉÆæAiÀÄ£ÀÄß
«ZÁj¸À¯ÁV, EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ ¥ÀÄ°PÉò £ÀUÀgÀ «zsÁ£À¸À¨sÁ PÉëÃvÀæzÀ ¥Àæ¸ÀÄÛvÀ JAJ¯ïJ
10
DVgÀĪÀ F ¥ÀæPÀgÀtzÀ J2 DgÉÆæAiÀÄ ¸ÀÆZÀ£ÉAiÀÄAvÉ ªÀÄ£ÉAiÀÄ°è ¸ÀAUÀ滹gÀĪÀÅzÁV J1
DgÉÆæAiÀÄÄ w½¹gÀÄvÁÛ£É.
F jÃwAiÀiÁV ZÀÄ£ÁªÀuÁ DAiÉÆÃUÀzÀ C£ÀĸÁgÀ AiÀiÁªÀÅzÉà C£ÀĪÀÄwAiÀÄ£ÀÄß
¥ÀqÉzÀÄPÉƼÀîzÉà ªÀÄvÀzÁgÀjUÉ D«ÄµÀ MqÀÄتÀ ¸À®ÄªÁV J2 DgÉÆæAiÀÄ ¸ÀÆZÀ£ÉAiÀÄAvÉ J1
DgÉÆæAiÀÄÄ vÀ£Àß ªÀÄ£ÉAiÀÄ°è MlÄÖ 231 PÀÄPÀÌUÀð¼À£ÀÄß ElÄÖPÉÆAqÀÄ 2023gÀ PÀ£ÁðlPÀ
«zsÁ£À¸À¨sÁ ZÀÄ£ÁªÀuÉAiÀÄ ¤Ãw ¸ÀA»vÉAiÀÄ£ÀÄß G®èAWÀ£É ªÀiÁrgÀĪÀÅzÀÄ ¸ÁPÁëzsÁgÀUÀ½AzÀ
zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.
DzÀÝjAzÀ F ªÉÄîÌAqÀ PÀ®AUÀ¼À CrAiÀÄ°è DgÉÆævÀgÀÄ ²PÁëºÀðgÁVgÀÄvÁÛgÉAzÀÄ F
zÉÆõÁgÉÆÃ¥Àt ªÀiÁqÀ¯ÁVzÉ"
The issue now would be whether the ingredients necessary for
laying down an offence against the accused under Sections 171E
and 171F of the IPC or Section 133 of the Act are met or otherwise.
Sections 171E and 171F of the IPC read as follows:
"171-E. Punishment for bribery.--Whoever commits
the offence of bribery shall be punished with imprisonment of
either description for a term which may extend to one year, or
with fine, or with both:
Provided that bribery by treating shall be punished with
fine only.
Explanation.--"Treating" means that form of bribery
where the gratification consists in food, drink, entertainment, or
provision.
171-F. Punishment for undue influence or
personation at an election.--Whoever commits the offence of
undue influence or personation at an election shall be punished
with imprisonment of either description for a term which may
extend to one year, or with fine, or with both."
11
Section 171-E punishes a person who commits bribery during
elections. Bribery is defined under Section 171-B. Section 171-B
reads as follows:
"171-B. Bribery.--(1) Whoever--
(i) gives a gratification to any person with the object
of inducing him or any other person to exercise any
electoral right or of rewarding any person for
having exercised any such right; or
(ii) accepts either for himself or for any other person
any gratification as a reward for exercising any
such right or for inducing or attempting to induce
any other person to exercise any such right,
commits the offence of bribery:
Provided that a declaration of public policy or a promise of
public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or
attempts to procure, a gratification shall be deemed to give a
gratification.
(3) A person who obtains or agrees to accept or attempts
to obtain a gratification shall be deemed to accept a
gratification, and a person who accepts a gratification as a
motive for doing what he does not intend to do, or as a reward
for doing what he has not done, shall be deemed to have
accepted the gratification as a reward."
Section 171-B mandates that a person who gives a gratification
with an object of inducing him or any other person to exercise
electoral right in favour of a particular person commits the offence
12
of bribery. Any person who obtains or agrees to accept or attempts
to obtain gratification would become open to punishment for the
said offence. The other offence alleged is the one punishable under
Section 171F. Section 171F must have its ingredients as obtaining
under Section 171C & D of the IPC. Section 171C deals with undue
influence at the elections and Section 171D deals with personation
at elections.
8. A perusal at the contents obtaining in the complaint does
not meet the ingredients necessary to bring home the offences as
alleged. The interpretation of this need not detain this Court for
long or delve deep into the matter. This Court considering an
identical circumstance of influencing voters during elections, albeit
in a different way, in the case of JAGATH PRAKASH NADDA v.
STATE OF KARNATAKA2, has held as follows:
".... .... ....
7. The incident that led to registration of crime, is as
narrated hereinabove, and would not require any reiteration, as
it is a solitary incident of speaking in a public gathering. The
allegation is threatening or wooing the voters. A complaint
comes to be registered by the flying squad team of election
commission on 09-05-2023. Since the entire issue has sprung
2
2023 SCC OnLine Kar. 1376
13
from the complaint, I deem it appropriate to notice the
complaint which reads as follows:
14
The complaint is for the offence punishable under Section 171F
of the IPC. Section 17 IF reads as follows:
"171.-F. Punishment for undue influence or
personation at an election.--Whoever commits the offence
of undue influence or personation at an election shall be
punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both."
Section 171F punishes those who would commit the offence of
undue influence or personation at an election with
imprisonment, which may extend to a term of one year. Section
15
171F requires two ingredients to be present viz., undue
influence or personation at an election. Undue influence and
personation, are defined under Sections 171Cand 171D. They
read as follows:
"171-C. Undue influence at elections.--
(1) Who ever voluntarily interferes or attempts to interfere with
the free exercise of any electoral right commits the offence
of undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-
section (1), whoever--
(a) threatens any candidate or voter, or any person in
whom a candidate or voter is interested, with injury
of any kind, or
(b) induces or attempts to induce a candidate or voter to
believe that he or any person in whom he is
interested will become or will be rendered an object
of Divine displeasure or of spiritual censure,
shall be deemed to interfere with the free exercise of the
electoral right of such candidate or voter, within the
meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action,
or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be
interference within the meaning of this section.
171-D. Personation at elections.--Whoever at an
election applies for a voting paper or votes in the name of any
other person, whether living or dead, or in a fictitious name, or
who having voted once at such election applies at the same
election for a voting paper in his own name, and whoever abets,
procures or attempts to procure the voting by any person in any
such way, commits the offence of personation at an election:
Provided that nothing in this section shall apply to a
person who has been authorised to vote as proxy for an
elector under any law for the time being in force insofar as
he votes as a proxy for such elector."
16
Whoever would voluntarily interfere or attempt to interfere with
the free exercise of any electoral right commits the offence of
undue influence and whoever at an election applies for a voting
paper or votes in the name of other person, living or dead is
said to be guilty of offence of personation in the elections. What
is laid against the petitioner is Section 17 IF of the IPC. If the
complaint is considered on the touchstone of the contents of
Sections 171C, 171D and 171F, what would unmistakably
emerge, is a reckless registration of crime and a loosely laid
offence.
8. The complaint nowhere narrates that the petitioner has
unduly interfered with the free exercise of anyone's electoral
right, nor does it narrates that the petitioner is guilty of
personation as defined under Section 171D of the IPC in the
elections. An incident to become an offence under Section 17 IF,
the minimum requirement is narration in the complaint of the
ingredients of undue influence or personation. The allegation is
that Code of Conduct has been violated by the petitioner, on
speaking at a public gathering on 07-05-2023 by threatening
the voters. The complaint is so vague that it would daunt
vagueness itself. On such a vague complaint which is loosely
made against the petitioner, the crime in Crime No. 89 of 2023
is registered and the damocles sword of crime is left hanging on
the petitioner projecting it to be an offence.
9. If on the aforesaid facts further investigation is
permitted to continue against the petitioner it would become a
classic case of permitting investigation in a reckless registration
of crime which on the face of it, would become an abuse of the
process of law. Reference being made to the judgment of the
Apex Court in the case of STATE OF HARYANA V. BHAJAN
LAL AND OTHERS [1992 Supp (1) SC 335.], in the
circumstances would become apposite. The Apex Court has held
as follows:
"... .... ....
102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XTV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
17
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of
the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
18
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
(Emphasis supplied)
The Apex Court lays down 7 postulates of interference at the
stage of registration of crime. Thefirst postulate is that where
the allegations even if they are taken on their face value they
would not make out a case against the accused. The fifth
postulate is that where the allegations in the FIR are so absurd
and inherently improbable, it would be a sufficient ground to
quash the proceedings. The seventh postulate is where a
criminal proceeding is manifestly attended with mala fides or is
maliciously instituted with a view to spite the accused, such
proceedings should be quashed.
10. Three of the aforesaid postulates become completely
applicable to the facts of the case at hand. Therefore, permitting
further proceedings would be putting a premium upon reckless
registration of crime against the petitioner. Thus, this should be
nipped in the bud by entertaining the petition in exercise of the
jurisdiction of this Court under Section 482 of the Cr. P.C. as the
complaint itself nowhere makes out any offence against the
petitioner that would become punishable under Section 171F of
the IPC. In the light of the issue being answered on the merit of
the matter itself, the submission with regard to nonapplication
of mind by the Learned Magistrate while granting permission for
registration of FIR and on that score matter being remitted back
to the Learned Magistrate for re-consideration, would pale into
19
insignificance. Finding no merit in the complaint, the petition
deserves to succeed."
If what is found to be necessary ingredients as held in J.P.NADDA
being absent in the case at hand, permitting further proceedings
would become an abuse of the process of law.
9. The other issue that is projected by the learned senior
counsel is that the informant has not travelled to the doors of the
learned Magistrate seeking permission for registration of crime in a
non-cognizable offence. He would submit that the provision is clear
that it requires only the informant to go to the jurisdictional
Magistrate seeking permission to register the crime in a non-
cognizable offence. The said issue again need not detain this Court
for long or delve deep into the matter. This Court in VIJESH
PILLAI supra has considered the entire spectrum of law and has
held as follows:
"The petitioner is before this Court calling in question
registration of a crime in Crime No.116 of 2023 by the
K.R.Puram Police Station for offence punishable under Section
506 of the IPC.
2. Facts adumbrated are as follows:-
20
The 2nd respondent is the complainant and petitioner is
the accused. The 2nd respondent seeks to register a complaint
on 11-03-2023 against the petitioner alleging that the petitioner
has threatened and intimidated the complainant. The complaint
is brought before the K.R.Puram Police Station upon which the
Station House Officer seeks permission of the X Additional Chief
Metropolitan Magistrate at Bengaluru to register a crime under
Section 506 of the IPC for criminal intimidation in the light of
the fact that Section 506 of the IPC is a non-cognizable offence
and for a non-cognizable offence permission of the Magistrate
would be imperative under Section 155 of the Cr.P.C., The
learned Magistrate on receipt of requisition permits the crime to
be registered on perusal of requisition. On the crime being
registered, the petitioner has knocked at the doors of this Court
in the subject petition not on the issue of merit of the matter
but on non-application of mind on the part of the learned
Magistrate granting permission.
3. Heard Sri Satyanarayana S.Chalke, learned counsel
appearing for the petitioner and Sri Mahesh Shetty, learned
High Court Government Pleader appearing for respondent No.1.
4. The learned counsel appearing for the petitioner would
contend with vehemence that the learned Magistrate has erred
on two counts - one, permission granted on a requisition made
by the Station House Officer is erroneous as it is the informant
who has to go before the learned Magistrate and seek
permission. Sub-section (2) of Section 155 Cr.P.C., permits the
learned Magistrate to grant permission. Such grant of
permission should be on application of mind. He would contend
that the learned Magistrate has just accorded permission
without any further observation. Therefore, the proceedings are
vitiated.
5. On the other hand, the learned High Court Government
Pleader would seek to support the action of the learned
Magistrate contending that it is not required for the learned
Magistrate to pass an elaborate order while granting permission
to register a FIR and seeks dismissal of the petition.
21
6. I have given my anxious consideration to the
submission made by the respective learned counsel and have
perused the material on record.
7. A complaint comes to be registered before the K.R.
Puram Police Station alleging intimidation or threatening the life
of the complainant. The complaint reads as follows:
"Sub: Complainant against Mr.Vijesh Pillai for
threatening me to life.
With regard to the above mentioned subject I would
like to bring to you kind attention that a gentleman from
kerla named Vijesh Pillai came to meet me at Zuri Hotel,
Bengaluru initially asking me for an interview and told me
he wants to meet me and discuss above the same. Last
Saturday, I went with family to the hotel I mentioned with
my family and these after 5 minutes of police introduction,
he said was sent by the party secretary, Mr. Govindan to
settle the issue between Hon'ble CM of kerala, his family
and as a settlement amount they will provide 301 crores
INR to leave Bengaluru in a weeks time and go
absconding. It I do not agree to the same then he will
have to look for alternative option like charging false case
against me by putting contrabands is my baggage while
traveling or will kill me so that all issues will settle down.
They will also do harm to my family member to teach me a
lesson, the has given me week time to think and decide.
I hereby request the authorities to please take
necessary action to protect me and my family from this
threat for life as I have a small son going to school.
I humbly prays to your goodself office to provide me
with protection to body and life.
Kerala police used to provide the same in Kerala
when I was there."
(Emphasis added)
The complainant when approached K.R.Puram Police Station, a
non-cognizable report is made and a requisition is taken to the
learned Magistrate to register a crime on such non-cognizable
22
report as the facts would lead to an offence under Section 506
of the IPC. Section 506 of the IPC reads as follows:
"506. Punishment for criminal intimidation.--Whoever
commits the offence of criminal intimidation shall be punished with
imprisonment of either description for a term which may extend to
two years, or with fine, or with both;
if threat be to cause death or grievous hurt, etc.--and
if the threat be to cause death or grievous hurt, or to cause the
destruction of any property by fire, or to cause an offence
punishable with death or imprisonment for life, or with
imprisonment for a term which may extend to seven years, or to
impute unchastity to a woman, shall be punished with
imprisonment of either description for a term which may extend to
seven years, or with fine, or with both."
Section 506 deals with criminal intimidation. The ingredients of
criminal intimidation are found in Section 503 of the IPC. Whoever
threatens another with any injury to his person, reputation or property
with intent to cause alarm to that person is said to have criminally
intimated the victim. Therefore, the complaint did make out certain
ingredients of Section 503. Since Section 506 is an offence that is
non-cognizable, permission of the Magistrate would be required under
Section 155 of the Cr.P.C., to register a crime. Section 155 of the
Cr.P.C., reads as follows:
"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.
(3) Any police officer receiving such order may exercise the
same powers in respect of the investigation (except the power to
arrest without warrant) as an officer in charge of a police station
may exercise in a cognizable case.
23
(4) Where a case relates to two or more offences of which
at least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are non-
cognizable."
(Emphasis supplied)
Section 155 has four parts to it. Sub-section (1) directs that
when information is given to an officer in charge of a police
station of the commission of a non-cognizable offence, he
should enter the substance of the information and refer the
informant to the Magistrate. Therefore, what could be gathered
from the said provision is that on a non-cognizable offence the
informant has to be referred to the learned Magistrate. Sub-
section (2) directs that no investigation on a non-cognizable
offence can take place without the written order of the
Magistrate. Sub-section (4) relates to amalgam of a cognizable
and a non-cognizable offence and if it is an amalgam the rigour
of Section 155(1) and (2) would lose its significance. The entire
issue now revolves around the aforesaid provisions of law. In
the case at hand upon receipt of the afore-quoted complaint,
the Station House Officer records a non-cognizable report and
sends a requisition to the learned Magistrate seeking to register
a crime. The learned Magistrate passes the following order:
"Perused the requisition seeking permission
to register FIR in non-cognizable case. Permitted to
register and investigate in accordance with law."
(Emphasis added)
Therefore, the order is perused and permitted. Except saying
perused, the requisition and permitted investigation or
registration of FIR, there is no indication of any application of
mind on the part of the learned Magistrate. This Court in
plethora of cases has been emphasizing the fact that
Magistrates should not permit registration of FIR by usage of
words "permitted", "perused permitted" or even "permitted
registration of FIR". All these illustrations of granting permission
on the face of it suffers from want of application of mind.
Permitting registration of a FIR cannot be a frolicsome act on
the part of the Magistrate. The Magistrate exercises power
under sub-section (2) of Section 155 of the Cr.P.C., In doing so,
it cannot be that he could pass orders which do not bear a
24
semblance of application of mind. This Court in VAGGEPPA
GURULINGA JANGALIGI v. STATE OF KARNATAKA3
following all the earlier judgments rendered on the issue has
held as follows:
"3. The petitioner has stated that the complaint is
misconceived, and the alleged offence is non-cognizable as
per the Code of Criminal Procedure, 1973. Therefore, the
Police have no authority to investigate the crime. It is
further submitted that the Police have not complied with
mandatory requirement of Section 155 of Cr. P.C. When the
officer-in-charge of the Police Station received 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 he Magistrate. Further,
sub-Section (2) of Section 155 of Cr. P.C., mandates that
no Police Officer shall investigate a non-cognizable case
without order of a Magistrate having power to try such case
or commit such case for trial. The petitioner has further
stated that there is no iota of evidence that the above said
mandatory requirement are complied with. There is no
speaking order by the jurisdictional Magistrate permitting
the Police to take up investigation. Therefore, the
proceedings initiated against the petitioner who is arrayed
as accused No. 4 in the charge sheet are liable to be
quashed.
5. The Learned Counsel for the petitioner submitted
that the offence punishable under Section 87 of the K.P. Act
is non-cognizable one and therefore, as per Section 155(1)
of Cr. P.C., the informant PSI ought to have been referred
to the jurisdictional Magistrate and the jurisdictional
Magistrate ought to have passed the order, permitting the
concerned Police to take up investigation of the case and
these are the mandatory requirements of the provisions
under Section 155(1) and 155(2) of Cr. P.C. which are not
followed in the present case. Therefore, the proceedings
initiated against the petitioner are vitiated and are liable to
be quashed.
8. It is not in dispute that the alleged offence
punishable under Section 87 of the K.P. Act is a non-
cognizable offence. When the report is received by
the SHO of Police Station in respect of commission of
3
ILR 2020 KAR 630
25
non-cognizable offence, the SHO has to follow the
mandatory procedure prescribed under Section
155(1) and 155(2) of Cr. P.C. Therefore, it is
necessary to refer the said provision. Section 155 of
Cr. P.C., which deal with the procedure for
investigation and for taking cognizance of non-
cognizable offence reads as follows:--
"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.
(3) Any police officer receiving such order
may exercise the same powers in respect of the
investigation (except the power to arrest without
warrant) as an officer in charge of a police station
may exercise in a cognizable case.
(4) Where a case relates to two or more
offences of which at least one is cognizable, the
case shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-
cognizable."
9. Therefore, when the SHO of the Police Station receives a
report regarding commission of non-cognizable offence, it is his
duty 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. Thereafter, the jurisdictional Magistrate
is required to pass an order permitting the Police Officer to
investigate the case as mandated by the provisions of Section
155(2) of Cr. P.C., stated supra. Unless, the Police Officer is
permitted by an order of the jurisdictional Magistrate to investigate
the non-cognizable offence, the Police Officer does not get
26
jurisdiction to investigate the matter and file a final report or the
charge sheet.
.... .... ....
11. This Court in the case of Mukkatira Anitha
Machaiah v. State of Karnataka and Another in Crl.P. 5934/2009
decided on 20/8/2013 considered the scope of Section 155(1) and
(2) of Cr. P.C., has observed in para 5 as follows:--
"5. Section 155 of Cr. P.C. deals with the procedure to
be adopted in respect of an information received by the officer in
charge of a police station relating to commission of a non-
cognizable offence. According to sub-section (1) of Section 155
of Cr. P.C., when an officer in charge of the Police Station
receives an information as to the commission of a non-
cognizable offence, he shall enter or cause to be entered the
substance of the information in the prescribed book and refer the
informant to the Magistrate. According to sub-section (2) of
Section 155 of Cr. P.C., no police officer shall investigate a non-
cognizable case without a order of a Magistrate having power to
try such case or commit the case for trial. Thus reading of sub-
section (1) of Section 155 of Cr. P.C. makes it clear that the duty
of the SHO, who receives information as to the commission of a
non-cognizable offence is only to enter or cause to be entered
the substance of the information in the prescribed book and refer
the informant to the Magistrate. It is for the informant to
approach the jurisdictional Magistrate and seek a direction to the
police for investigation. If the Magistrate on being approached by
the informant, directs investigation, the Police Officer concerned
would get jurisdiction to investigate the matter."
12. This Court in paragraph 6 has further has observed as
follows:--
"In the case on hand, as noticed supra, upon receipt of
the report submitted by the 2nd respondent, the SHO of Virajpet
Police Station registered the same as NCR and submitted a
requisition to the jurisdictional Magistrate seeking permission to
investigate the matter, based on which, the Magistrate granted
permission. Thus, the procedure adopted by the SHO is without
the authority of law and the same is not contemplated under
Section 155 of Cr. P.C. Therefore, the permission granted by the
Magistrate on such requisition is also without any basis, as such,
the investigation carried on by the police and the charge sheet
filed thereon are without the authority of law. Therefore, the
prosecution launched against the petitioner is liable to be
quashed. However, it is open to Respondent No. 2, who is the
informant before the police to approach the jurisdictional
27
Magistrate and seek necessary orders as contemplated under
Section 155 of Cr. P.C."
13. Therefore, the SHO of the Police Station has no
authority of law unless the jurisdictional magistrate permits
the Police Officer for investigation of the non-cognizable
offence.
14. This Court in the case of Padubidri Members
Lounge v. Director General and Inspector General of Police in W.P.
Nos. 42073-75/2018 Decided on 3/10/2012, considered the
mandatory provision of Section 155(1) and (2) of CrP.C., where
the charge sheet was filed for the offence under Section 87 of the
K.P. Act. In paragraphs 6 and 7, this Court has held as follows:--
"6. As per the above provisions, when an Officer-
in-charge of the police station receives an information
with regard to commission of non-cognizable offence/s, i)
he shall enter or caused to be entered the substance of
the information in a book to be maintained by the said
Officer in a prescribed form and ii) refer the informant to
the Magistrate. Further, Sub-Section (2) of Section 155
Cr. P.C., mandates that no Police Officer shall investigate
a non-cognizable offence without the order of a
Magistrate having power to try such case or commit such
case for trial.
7. In the instant case, police have failed to comply
with the requirements of Section 155(1) and 155(2) of Cr.
P.C. There is nothing on record to show that the
respondents have referred the informant to the concerned
Magistrate as required under Section 155(1) of Cr.P.C., or
obtained necessary order as envisaged under Section
155(2) of Cr. P.C., before embarking upon investigation.
Thus, on the face of it, the respondents are seen to have
violated the provisions of Sections 155(1) and 155(2) of
Cr.P.C."
15. Again this Court, in the case of Veeranagouda and
others vs. The State of Karnataka in Crl.P. No. 102021/2018
decided on 11/1/2019, considered the requirements of Section
155(1) and (2) of Cr. P.C., and has held in para 9 as follows:--
"The Counsel appearing for the petitioner' also brought
to the notice of this Court that when a requisition was given to
the Magistrate, only an endorsement is made as permitted to
investigate as per section 155 of Cr. P.C. on the very request
letter itself and the same is not in accordance with law. The
28
concerned Magistrate did not apply his mind and passed any
considered order. On the requisition only an endorsement is
made and the same is not the permission in the eye of law.
Therefore in reality it is not permission at all and the prosecution
has not satisfied the Court that mandatory requirements are
complied before proceeding with the investigation in the matter.
Legal aspect has not been complied and the same has been over
looked by the Court below while ordering for registering the
criminal case against the petitioners' herein. Looking to these
materials it goes to show that it is the abuse of process of Court
to continue the proceedings. Not only it is wasting of valuable
time and energy of the Court. Even if the trial is proceeded with,
it is a futile exercise in the matter."
16. Therefore, this Court time and again has quashed
the proceedings initiated against the accused persons in
respect of non-cognizable offence on the ground that the
mandatory provisions of Section 155(1) and (2) of Cr. P.C.,
are not complied with. However, this Court has not laid
down any guidelines for the Learned Magistrates as to how
and in what manner they have to pass the Order under
Section 155(2) of Cr. P.C., when a requisition is submitted
to the Learned Magistrate seeking permission to investigate
the non-cognizable offence.
17. In the cases referred above, invariably the Learned
Magistrates have passed the orders on the requisition submitted by
the SHO of the Police Station by writing a word "permitted" or
"permitted to investigate". This Court has held that making such an
endorsement on the requisition submitted by the Police is not
passing orders and there is no application of judicious mind in
permitting the Police Officer to take up the investigation for non-
cognizable offence.
18. Under these circumstances, this Court felt it necessary
to lay down some guidelines for the benefit of our Judicial
Magistrates as to how they have to approach and pass orders when
requisition is submitted by the SHO of Police Station seeking
permission to investigate into the non-cognizable offence. The
provision of Section 155(1) and (2) of Cr. P.C., referred above
make it very much clear that the SHO of the Police Station on
receiving the information regarding the commission of non-
cognizable offence, his first duty is to enter or cause to be entered
the substance of such commission in a book maintained by such
Officer and then refer the informant to the Magistrate. This is the
requirement of Section 155(1) of Cr. P.C. Once the requisition is
submitted to the Magistrate, it is for the Jurisdictional Magistrate to
29
consider the requisition submitted by the SHO of Police Station and
pass necessary order either permitting the Police Officer to take up
the investigation or reject the requisition. Section 155(2) of Cr.
P.C., specifically provides that no Police Officer shall investigate the
non-cognizable case without the order of the Magistrate having
power to try such case or commit such case for trial. Therefore,
passing an "order" by the Magistrate permitting the Police Officer
to investigate the non-cognizable offence is an important factor.
The word without the order of the Magistrate appearing in sub-
Section (2) of Section 155 of Cr. P.C., makes it clear that the
Magistrate has to pass an 'order' which means supported by
reasons. On the other hand, in number of cases, the Jurisdictional
Magistrates are writing a word 'permitted' on the requisition
submitted by the Police itself which does not satisfy the
requirement of Section 155(2) of Cr. P.C., Such an endorsement
cannot be equated with the word 'Order'.
19. Chapter V Rule 1 of Karnataka Criminal Rules of
Practice, 1968 also deals with investigation of non-cognizable case.
The said provision reads as follows:--
"INVESTIGATION AND PROSECUTION
*1. Report under Section 154.--(1) On receipt of the
report of the Police Officer under Section 154 of the Code, the
Magistrate shall make a note on the report of the date and time
of the receipt thereof and initial the same. Before initialing, the
Magistrate shall also endorse on the report whether the same
has been received by the post or muddam.
2. (1) When a Magistrate directs an investigation of a
case under Sections 155(2), 156(3) or 202 of the Code, he shall
specify in his order the rank and designation of the Police Officer
or the Police Officers by whom the investigation shall be
conducted."
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 of
Practice, this Court proceed to laid down the following guidelines
for the benefit of the judicial Magistrate working in the State.
30
i) The Jurisdictional Magistrates shall stop hereafter making
endorsement as 'permitted ' on the police requisition itself Such an
endorsement is not an order in the eyes of law and as mandated
under Section 155(2) of Cr. P.C.
ii) When the requisition is submitted by the informant to the
Jurisdictional Magistrate, he should make an endorsement on it as
to how it was received, either by post or by Muddam and direct the
office to place it before him with a separate order sheet. No order
should be passed on the requisition itself. The said order sheet
should be continued for further proceedings in the case.
iii) When the requisition is submitted to the Jurisdictional
Magistrate, he has to first examine 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 be other
than informant or the complainant.
21. Coming to the case on hand, the SHO of Kagwad Police
Station received a complaint from PSI on 23/9/2019 and SHO
submitted a requisition to IV Additional JMFC, Athani, seeking
permission to investigate the offence under Section 87 of the K.P.
Act which is a non-cognizable offence. It is seen that the Learned
Jurisdictional Magistrate has made an endorsement on the
requisition which reads as follows:--
"Perused materials. Permitted
Sd/-"
22. Therefore, absolutely there is no application of
judicious mind by the Learned Magistrate before permitting
the Police to investigate the non-cognizable offence much
less an order passed by the Learned Magistrate.
31
23. Under these circumstances, the proceedings
initiated against the petitioner in CC No. 3397/2019
pending on the file of the IV Additional Civil Judge and
JMFC, Athani, are liable to be quashed so far as the
petitioner is concerned. Accordingly, the petition filed under
Section 482 of Cr. P.C., is allowed and the said proceedings
are hereby quashed as against the petitioner is concerned."
(Emphasis supplied)
This has been the law right from 2016 as followed in the afore-
quoted judgment. But, the Magistrates have not changed their
attitude of passing callous orders of granting permission which
sometimes is only a one word order "permitted". Therefore, the
learned Magistrates by their callous action of passing of such
orders have generated huge litigation before this Court as
petitions are being filed under Section 482 of the Cr.P.C.,
seeking quashing of such orders which grant permission bearing
no application of mind. Therefore, the learned Magistrates who
pass such orders have contributed/ contributing to the docket
explosion before this Court. It is rather unfortunate that the
learned Magistrates are contributing to the pendency of such
cases in the judiciary itself. It is high time now, that the
learned Magistrates should mend their ways and apply their
mind to the requisitions received and then pass appropriate
orders. Since no orders are being passed despite repeated
orders of this Court of the kind that this Court has directed.
Therefore, I deem it appropriate to invoke the power under
Section 483 of the Cr.P.C., and direct correction of errors by the
learned Magistrates. Section 483 of the Cr.P.C., reads as
follows:
"483. Duty of High Court to exercise
continuous superintendence over Courts of Judicial
Magistrates.--Every High Court shall so exercise its
superintendence over the Courts of Judicial Magistrates
subordinate to it as to ensure that there is an expeditious
and proper disposal of cases by such Magistrates."
Section 483 directs that every High Court shall so exercise its
superintendence over Courts of Judicial Magistrates to ensure
that expeditious and proper disposal of cases by such
Magistrates. Section 483 did fall for interpretation before the
32
Apex Court in plethora of cases. I deem it appropriate to quote
a few. The Apex Court in the case of POPULAR MUTHIAH v.
STATE4 has held as follows:
"24. It is also significant to note that whereas
inherent power of a court or a tribunal is generally
recognised, such power has been recognised under the
Code of Criminal Procedure only in the High Court and
not in any other court. The High Court apart from
exercising its revisional or inherent power indisputably
may also exercise its supervisory jurisdiction in terms
of Article 227 of the Constitution of India and in some
matters in terms of Section 483 thereof. The High
Court, therefore, has a prominent place in the Code of
Criminal Procedure vis-à-vis the Court of Session which
is also possessed of a revisional power.
(Emphasis supplied)
The Apex Court holds that the High Court apart from
exercising its revisional or inherent power may also exercise its
supervisory jurisdiction in terms of Article 227 of the
Constitution of India and in some cases in terms of Section 483
of the Cr.P.C., The Apex Court again in the case of
DHARMESHBHAI VASUDEVBHAI AND OTHERS v. STATE OF
GUJARAT5 has held as follows:
"12. The High Court, apart from exercising its
supervisory jurisdiction under Articles 227 and 235 of
the Constitution of India, has a duty to exercise
continuous superintendence over the Judicial
Magistrates in terms of Section 483 of the Code of
Criminal Procedure. It reads as under:
"483. Duty of High Court to exercise continuous
superintendence over Courts of Judicial Magistrates.--
Every High Court shall so exercise its superintendence
over the Courts of Judicial Magistrates subordinate to it
as to ensure that there is an expeditious and proper
disposal of cases by such Magistrates."
4
(2006) 7 SCC 296
5
(2009) 6 SCC 576
33
13. When an order passed by a Magistrate which was wholly
without jurisdiction was brought to the notice of the High Court, it
could have interfered therewith even suo motu. In Adalat
Prasad v. Rooplal Jindal [(2004) 7 SCC 338 : 2004 SCC (Cri) 1927] ,
although this aspect of the matter has not been considered but
having regard to the power exercised by the Magistrate under
Chapters 16 and 17 of the Code, it was held: (SCC p. 343, para 14)
"14. But after taking cognizance of the complaint and
examining the complainant and the witnesses if he is satisfied
that there is sufficient ground to proceed with the complaint he
can issue process by way of summons under Section 204 of
the Code. Therefore, what is necessary or a condition
precedent for issuing process under Section 204 is the
satisfaction of the Magistrate either by examination of the
complainant and the witnesses or by the inquiry contemplated
under Section 202 that there is sufficient ground for
proceeding with the complaint hence issue the process under
Section 204 of the Code. In none of these stages the Code has
provided for hearing the summoned accused, for obvious
reasons because this is only a preliminary stage and the stage
of hearing of the accused would only arise at a subsequent
stage provided for in the latter provision in the Code. It is true
as held by this Court in Mathew case [K.M. Mathew v. State of
Kerala, (1992) 1 SCC 217 : 1992 SCC (Cri) 88] that before
issuance of summons the Magistrate should be satisfied that
there is sufficient ground for proceeding with the complaint but
that satisfaction is to be arrived at by the inquiry conducted by
him as contemplated under Sections 200 and 202, and the
only stage of dismissal of the complaint arises under Section
203 of the Code at which stage the accused has no role to
play, therefore, the question of the accused on receipt of
summons approaching the court and making an application for
dismissal of the complaint under Section 203 of the Code on a
reconsideration of the material available on record is
impermissible because by then Section 203 is already over and
the Magistrate has proceeded further to Section 204 stage."
Adalat Prasad has been followed by this Court in Everest
Advertising (P) Ltd. v. State Govt. of NCT of Delhi [(2007) 5 SCC 54
: (2007) 2 SCC (Cri) 444] and Dinesh Dalmia v. CBI [(2007) 8 SCC
770 : (2008) 1 SCC (Cri) 36] . To the same effect is the decision of
this Court in S. Suresh v. Annappa Reddy [(2004) 13 SCC 424] .
14. For the reasons aforementioned, the impugned judgments
cannot be sustained which are set aside accordingly. Other impugned
judgments have been passed by the High Court relying on the
judgment and order passed in SCRLA No. 701 of 2005. It is,
34
however, made clear that we have not entered into the merits of the
matter."
(Emphasis supplied)
The Apex Court directs the High Court that apart from exercising its
supervisory jurisdiction under Articles 227 and 235 of the
Constitution of India it has a duty to exercise continuous
superintendence over judicial Magistrates in terms of Section 483
of the Cr.P.C. In the light of the provision and its interpretation by
the Apex Court, I deem it appropriate to invoke the said power to
direct the learned Magistrates to pass appropriate orders which
should contain the following:
" (i) The learned Magistrates shall record as to who has
submitted the requisition whether it is the informant or the
Station House Officer and make an endorsement of receipt
of requisition in a separate order sheet.
(ii) The learned Magistrates shall not pass any order if the
complaint is not enclosed to the requisition.
(iii) The learned Magistrates shall notice and examine the
contents of the requisition and record a prima facie finding
as to whether it is a fit case to be investigated and if it is
not a fit case to be investigated, the learned Magistrates
shall reject the prayer made in the requisition. To pass this
order, the order of the learned Magistrates shall bear
application of mind by not rendering a detailed order or
detailed inquiry at that stage but it shall bear application of
mind.
(iv) The learned Magistrates should forthwith stop using the
words "permitted", "perused permitted" or "perused
requisition permitted registration of FIR" on the requisition
itself and pass separate orders and maintain a separate
order sheet with regard to the grant of such permission.
Granting permission on the requisition would be contrary to
law.
(v) The order of the learned Magistrates shall contain all the
aforesaid. Any deviation thereof from what is directed will
be construed that the Magistrates are contributing to the
huge pendency of cases by their callous action of passing
inappropriate orders and would be viewed seriously."
(Emphasis supplied)
35
The aforesaid directions/guidelines have become necessary, as
this Court in plethora of cases has quashed orders passed by
learned Magistrates permitting registration of FIRs on the
ground that they bear no application of mind. If a victim would
go before the Station House Officer of a jurisdictional Police
Station and seek to register a crime of being beaten up which
would become an offence punishable under Section 323 of the
IPC or intimidation which would become offence under Section
506 of the IPC or any other non-cognizable offences and as a
matter of fact several offences under the Karnataka Police Act
which the Police themselves seek to register, all go away to the
winds for the sole reason of the learned Magistrates not
applying their minds while granting permission. The victim who
has received blows which will become an offence under Section
323 or offence under Section 506 of the IPC or any other non-
congnizable offence, will never get justice all because of the act
of the learned Magistrates. Therefore, in a criminal justice
system, the victim cannot be seen to be shown the doors by
judicial acts. Hence, it is high time that the learned Magistrates,
who would grant permission to investigate, follow the drill that
is indicated hereinabove, failing which justice to a victim would
become illusory.
8. Insofar as the submission of the learned counsel for
the petitioner that the informant should be sent to the learned
Magistrate seeking permission and not the Station House Officer
would again become unacceptable though not completely but at
least partially. This Court in the case of ANAND SINGH v.
STATE OF KARNATAKA in Crl.P.No.3082 of 2007, disposed
on 22.10.2008, has held that the informant should be referred
to the learned Magistrate with a requisition seeking permission
to investigate the case. This is further followed by another co-
ordinate Bench in PRAVEEN BASAVANNEPPA SHIVALLI v.
STATE OF KARNATAKA AND OTHERES6 where this Court has
held as follows:
"11. The Karnataka Police Manual, which does not
have statutory force, but contains the guidelines to the
Department Officers, in Chapter XXVII, Order 1211 relating
to non cognizable cases states as follows:
6
2016 SCC OnLine Kar 4070
36
"1211. (1) When a Police Officer finds it
necessary to lay information before a Magistrate in a
non cognizable case, he may, under Clause (b) of
Sub-Section(1) of Section 190 of the Code of Criminal
Procedure, make a report to the Magistrate in writing
of the facts which constitute such offence.
(2) if there are persistent complaints against a
particular individual, which legally fall under the category of
a non-cognizable offence, the following action may be
taken-
(a) Obtain orders of the competent court to register
the N.C. case and investigate and/or
(b) initiate action under Section 110 Cr. P.C. if there
is persistent commission of non-cognizable offence by a
given individual resulting in breach of peace."
12. Concededly, there was no other complaint
against the petitioner and hence, clause 2(b) supra, is not
attracted.
13. In the case of Anand Singh v. State of
Karnataka, (Crl. P. No. 3082/2007, decided on 22.10.08),
this Court has held, "that under S. 155 of Cr. P.C., the
police officer has no authority to approach the Magistrate
with a requisition seeking permission to investigate the
case."
14. In Mukkatira Anitha Machaiah v. State of
Karnataka, (Crl. P. No. 5934/2009 decided on 20.08.2013),
the 2nd respondent - informant, having submitted a
complaint, SHO registered a case and submitted a
requisition to the Magistrate to accord permission to
investigate the matter. With reference to the said
requisition, permission was granted by the Magistrate.
Investigation was made and the charge-sheet was filed. to
quash the charge-sheet and all related proceedings, a
criminal petition under S. 482 Cr. P.C. was filed. By noticing
that the procedure adopted by the SHO is without authority
of law and holding that same is not contemplated
under S. 155 Cr. P.C. and that, therefore, the permission
granted by the Magistrate on such a requisition is also
without any basis and as such the investigation carried and
the charge-sheet filed thereon by the police was held to be
37
without authority of law and the prosecution launched was
quashed.
15. In the case or Dr. Gururaj v. State of Karnataka,
(CRL.P. 100046/2014, decided on 22.01.2014), a complaint
was filed before the police alleging abusive words used and
life threat given by the petitioners and about the robbery of
some gold ornaments. Police registered the case for the
offences under Ss. 504, 506 and 392 of IPC and conducted
the investigation. It was found that the offences punishable
under Ss. 504 and 506 of IPC are only made out. A charge-
sheet was filed and the learned Magistrate took cognizance
of the offences punishable under Ss. 504 and 506 of IPC,
registered the criminal case and ordered issue of summons
to the accused. The said action was assailed by filing a
petition under S. 482 Cr. P.C. on the ground that the police
are empowered to investigate the offences but if the police
arrive at the conclusion that only non cognizable offences
are made out, then, they can file a report and the
Magistrate has to look into the matter and find out, whether
cognizance can be taken for the non cognizable offences or
whether it requires any further investigation, by referring
the matter to the police to reinvestigate the case under S.
202 of Cr. P.C. Reliance was placed on the decisions in the
cases of (i) Mam Chand v. State, 1999 Crl. L.J. 1592 and
(ii) P. Kunhumuhammed v. State of Kerala, 1981 Crl. L.J.
356. Having considered the matter and finding that the
police have submitted charge-sheet for the offences under
Ss. 504 and 506 of IPC and the Magistrate without
application of mind and without perusing the charge-sheet
papers to ascertain whether the report submitted by the
police has to be treated as a complaint under S.2(h) of Cr.
P.C. or whether under S. 202 Cr. P.C. further investigation
is required, has passed the impugned order, the case was
remitted to the Magistrate and the criminal petition was
disposed of accordingly.
16. In the present case, 2nd respondent having
acted contrary to sub-section(1) of S. 155 Cr. P.C. and
the learned Magistrate having not passed 'an order',
instead, having made an entry 'permitted', being
not 'an order' in the eye of law and in view of the
prohibition contained in sub-section(2) of S. 155 Cr.
P.C., the investigation made and the consequential
charge-sheet filed for the offences under Ss. 504, 506
and 323 of IPC and the taking of cognizance of these
offences and the issue of non bailable warrant in the
38
first instance itself for proceeding further with the
case against the accused are absolutely illegal. It is
obvious that the police and the Magistrate have not
bothered to look into S. 155 Cr. P.C. before
proceeding further in the matter. Non application of
mind and mechanical approach to the case are
apparent.
17. The question as to how, in what manner and to
what extent, the inherent power under S. 482 of the Code
can be exercised for quashing the registration of
FIR/charge-sheet/complaint etc. is no more res integra.
In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 535,
the propositions of law has been laid down in para 102. The
relevant proposition for this case is at SI. No. (4) and the
same reads as follows:
"(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a Police
Officer without an order of a Magistrate as contemplated
under S. 155(2) of the Code."
(emphasis supplied)
18. Statutory safeguard given under S.155(2) Cr.
P.C. must be strictly followed, since the same has been
conceived in public interest and as a guarantee against
frivolous and vexatious investigations.
19. In the present case, as is clear from Annexure-J
itself, the alleged offences being non-cognizable, in view of
the safeguard provided under S.155(2) Cr. P.C. the police
should have referred the respondent No. 3 to the
Magistrate."
(Emphasis supplied)
Though the afore-quoted judgments of the co-ordinate benches
of this Court have held that it is the informant who has to
approach the Magistrate and not the Station House Officer, what
is necessary to be noticed is, what this Court holds in PRAVEEN
BASAVANNEPPA SHIVALLI (supra) referring to the Police
Manual which mandates that a Police Officer finding it necessary
to lay information before a Magistrate in a cognizable offence,
may make a report in writing of such facts which constitute such
offence. Therefore, it becomes necessary to notice the
39
interpretation rendered by several High Courts of the very
provision that has fallen for consideration in the case at hand.
(i) The Bombay High Court in the case of
KEDARNATH v. STATE OF MAHARASHTRA7 has held as
follows:
"4 . Thus, the grievance in a nutshell is that
the police without the order from the Magistrate
investigated into the offence which is non-cognizable.
All that which is required to be done is to make a
report to the Magistrate of having received a report of
Commission of non-cognizable offence. According to
the present non-applicant No. 2, therefore, the action of the
Investigating Officer in seeking permission for investigation
into the offences was absolutely without any grounds and
foundation. According to the non-applicant, as was further
urged before the Court, that in the intervening period, the
present applicant has already filed a private complaint
before the Judicial Magistrate First Class and even examined
the witnesses in which process was issued and in that
background, no further investigation was warranted or
permissible. The order was also challenged on account of
being an unreasoned order.
.... .... ....
14. It is pertinent to note that the Additional
Sessions Judge has not quashed the FIR lodged by
Kedamath i.e. the applicant herein. What would remain is
the FIR as a fact without any investigation, while the
applicant's case for cognizable offence filed by him will be
proceeded as a private case unassisted by the prosecution
by State when the State Police is otherwise well acquainted
and equipped with the investigating machinery. It can still
happen that in the course of investigation of a non-
cognizable offence, the investigating Officer may file a final
report under Section 173 of Criminal Procedure Code for the
offences which may be cognizable if so found to have been
committed. The process of investigation which is to be
commenced, therefore, cannot be throttled based on
grounds such as apprehensions or propriety."
(Emphasis supplied)
7
2005(4) Mh.LJ 833
40
The High Court of Bombay notices that a report has to be made to the
learned Magistrate once the Station House Officer receives a report of a
non-cognizable offence.
(ii) The High Court of Allahabad in BRIJ LAL BHAR v.
STATE OF U.P. AND OTHERS8 has held as follows:
"5. It is opposed by the learned A.G.A. by
submitting:
1. That according to the provisions of Section 155 Cr.P.C. the
information of registering N.C.R. is referred to the magistrate
concerned and no police officer shall investigate a non cognizable case
without the order of the magistrate having power to try such case or
commit the case for trial Therefore, only incharge of the police station
concerned was the competent person to get the permission from the
magistrate concerned for doing the investigation of a case of non
cognizable offence. The first informant was having no right to move an
application under Section 155(2) There is no illegality in the impugned
order dated 17.11.2005 so the same may not be set aside.
After hearing the learned Counsel for the revisionist and the
learned A.G.A. and from the perusal of the report, it appears that in
the present case two important "issues" are involved as;
(1) whether the officer in charge of the police station concerned
himself is empowered to convert the report of non-cognizable offence
into the report of cognizable offence upon receiving sufficient material
disclosing the commission of a cognizable offence without the order of
the magistrate concerned.
(2) Whether for getting, the order to investigate the
non-cognizable case, the first informant has any right to move
an application, before the magistrate concerned under Section
155(2) Cr.P.C. or it can only be moved by a police officer of a
police station concerned.
.... .... ....
8. Now I deal with issue No. 2. According to the
provision of Section 155 Cr.P.C. only officer in charge or any
police officer of a police station concerned can move an
application to obtain the order for investigation from the
magistrate concerned of a non cognizable case and there is
8
2006 (55) ACC 864
41
no legal bar for moving such application by the first
informant, Section 155(2) Cr.P.C. also envisages that no
police officer shall investigate a non cognizable case
without the 'order' of magistrate, here the word 'order' as
mentioned above, it is relevant to deal with issue No. 2, in
the wording of the provision of Section 155(2) the word
'without order' is used. Therefore, the order may be passed
by the magistrate concerned on the application of a police
officer concerned or on the application of the first informant
also. According to the provisions of Section 154 Cr.P.C. also
the case is registered on the information given to the officer
in-charge of a police station, relating to the commission of a
cognizable offence. In default, the first informant may move
an application under Section 156(3) for passing the 'order'
for doing investigation, it provides a right to the first
informant to move an application on this analogy the first
informant is also a competent person to move an application
under Section 155(2) Cr.P.C."
(Emphasis supplied)
The High Court of Allahabad frames a specific issue with
regard to getting an order to investigate, is only the right of the
first informant to move the Magistrate or it can be moved by the
Police Officer of a police station concerned. It is answered that
it can either be the first informant or the police officer.
(iii) This is iterated by the Allahabad High Court in the
case of KUNWAR SINGH v. STATE OF U.P. AND OTHERS9
wherein it has held as follows:
"7. From the perusal of the aforesaid statutory
provision it is absolutely clear, without any ambiguity, that
no non-cognizable offence can be investigated by the police
without an order passed by a Magistrate. It is nowhere
provided under the said section as to who will apply
for making an investigation under Section 155(2)
Cr.P.C. of a non-cognizable offence. The Court cannot
add or subtract anything in the statutory section. The
court is empowered only to interpret the statute as is
enacted by the legislature. The power to amend any
statutory provision is the province of the legislature and not
of the courts.
9
2007 (57) ACC 331
42
8. In this view of the matter, when we look at
Section 155(2) Cr.P.C. we find that there is nothing in
the aforesaid Section as to disentitle the complainant
to approach the Court with the prayer seeking his
direction to direct the police to make an investigation
of his N.C.R. Section 155(2) Cr.P.C. does not provide
that but for the Police Officer no other person can
approach the Magistrate for seeking his direction
under the aforesaid Section.
9. In this view of the matter, I am of the considered
opinion that the law laid down in 1995 ACC page 254
Naveen Chandra Panday v. State is not a good law. On the
contrary the said judgment is against the statutory
provision. The law laid down by this Court in 2006 (55) ACC
864 Brij Lal Bhar v. State of U.P. through Principal
Secretary, Lucknow and Ors. lays down the correct
proposition of law."
(Emphasis supplied)
(iv) The Andhra Pradesh High Court in SAJJAL
AGARWAL v. STATE OF A.P. AND OTHERS10 has held as
follows:
"8. In my opinion, there is no illegality or
contravention of Section 155(1) Code of Criminal Procedure
by any of the two Station House Officers in these cases. In
case a Station House Officer receives a report containing
information of commission of non-cognizable offence, then,
he is bound to refer the informant/complainant to the
Magistrate after entering substance of the information in
general diary maintained in the police station. In such an
event, the Magistrate will follow the procedure prescribed
under Sections 200 - 204 Code of Criminal Procedure. After
recording statement of the complainant and the witnesses
present if any, on oath, it would be open for the magistrate
either to dismiss the complaint under Section 203 Code of
Criminal Procedure if the Magistrate is of the opinion that
there is no sufficient ground for proceeding, or otherwise to
issue process under Section 204 Code of Criminal Procedure
to the accused.
9. The police officer is barred from
10
Criminal Petition No.4442/2009
43
investigating a non-cognizable case without order of
a Magistrate who has power to try such case or
commit such case for trial, in view of Section 155(2)
Code of Criminal Procedure Argument of the
Petitioners' counsel that the Station House Officer is
not entitled to approach the Magistrate with a
petition for permission under Section 155(2) Code of
Criminal Procedure for investigating a non-cognizable
case, has no legal basis. Sub-section (2) of Section
155 Code of Criminal Procedure which provides for
investigation of a non-cognizable case by a police
officer, is silent as who is competent to invoke the
said provision before the Magistrate. It is open either
to a police officer or to any complainant to approach
the Magistrate under Sub-section (2) of Section 155
and seek permission of the Magistrate empowering a
police officer to investigate a non-cognizable case. In
my opinion, Sub-section (2) is an exception to Sub-
section (1) of Section 155. Not only a police officer or
a complainant can approach the Magistrate under
Section 155(2) Code of Criminal Procedure but also
the Magistrate suo motu can order a police officer to
investigate a non-cognizable case.
10. It is contended by the Petitioners' counsel that
the Courts below in these two cases granted permission
under Section 155(2) Code of Criminal Procedure without
giving any reasons for grant of such permission. In case a
police officer or a complainant approaches the Magistrate
for permission under Section 155(2) Code of Criminal
Procedure, it is not incumbent on the Magistrate to grant
the permission invariably. It is open to the Magistrate either
to grant permission or refuse to grant permission. When
there is such discretion vested in the Magistrate, it is
desirable that the Magistrate should give reasons for
empowering a police officer to investigate a non-cognizable
case, so that an aggrieved party will be in a position to
question the same in higher Courts and will be in a position
to know for what reasons his application was considered or
not considered. This Court is of the opinion that the
Magistrate should not be casual in granting permission
under Section 155(2) Code of Criminal Procedure simply
because a police officer requested for such permission. The
Magistrate has to consider entire gamut of the case and
take into account whether a police officer will be in a
position to collect better material during investigation than
the complainant himself furnishing material in support of his
44
case. Otherwise there is every possibility of misuse of
Section 155(2) Code of Criminal Procedure in case such
power is given to any unscrupulous police officer misusing
his official position and harassing the named accused
persons........"
(Emphasis supplied)
The High Court of Andhra Pradesh while interpreting sub-section
(2) of Section 155 of the Cr.P.C. holds that not only the Police
Officer can knock at the doors of the learned Magistrate, but the
informant as well. Therefore the inference would be, it can
either be the first informant or the police officer who could
approach the learned Magistrate.
(v) The High Court of Kerala in ANTO JOSEPH v. STATE
OF KERALA11 has held as follows:
"15. It was held that there was nothing in S. 155 of
the Code which dis-entitles the complainant to approach the
Court with the prayer seeking his direction to direct the
police to make an investigation of his complaint. It was
further held that S.155(2) of the Code does not
provide that but for the Police Officer no other person
can approach the Magistrate for seeking his direction
under the aforesaid Section.
16. It is a fundamental canon of statutory
construction that the words of a statute must be read in
their context and with a view to their place in the overall
statutory scheme. It is of course true that under sub-section
(1) of S.155 of the Code mandates that when the
information relates to a non-cognizable offence, the police
has to refer the informant to the Magistrate after recording
the substance of the information. However the section does
not say that the order to investigate should be secured by
the informant. The principle of the maxim "A Verbis Legis
Non Est Recedendum" meaning that there can be no
departure from the express words of law is apposite in this
context. The statute requires to be interpreted without
doing any violence to the language used therein. The Court
cannot re-write, recast or reframe the legislation for the
reason that it has no power to legislate.
11
ILR 2016 (3) Ker.556
45
17. A reading of sub-section (2) will reveal that
upon information given of the commission of a non-
cognizable offence, a police officer can, instead of
merely referring the informant to the Magistrate
under S.155(1), report the case to the Magistrate
under S.155(2), who can, under such circumstances,
order such investigation, without first taking
cognizance of the offence under S.190 of the Code.
Once a police officer takes up investigation of a non-
cognizable case, after getting due orders, the investigation
which he holds becomes an investigation under Chapter XII,
and he becomes vested with all the powers bestowed on
him under that Chapter including the power to file a final
report. Of course, a private person may also move the
learned Magistrate and secure order but the investigation
can only be carried out by the officer-in-charge of the police
station within whose limits the non-cognizable offence was
committed. In view of the above, the contention
vociferously urged by the learned Counsel cannot be
sustained. It is held that no such embargo can be placed
and the orders can be passed by the learned Magistrate on
the motion of the complainant himself or at the instance of
the Officer-in-Charge of the Police Station.
18. However, the learned Magistrate before
whom such information is placed seeking orders
under S.155(2) of the Code will have to make sure
that the police officer is not indiscriminately abusing
his powers to commence an investigation in a non-
cognizable case. The learned Magistrate is bound to
form his own conclusion on the basis of the materials
placed before him."
(Emphasis supplied)
(vi) Again, the Kerala High Court in the case of MANOJ
P.JOHN v. STATE OF KERALA12 has held as follows:
"8. The reading of section 155 Cr.P.C. along with
above decisions, clearly show that a non cognizable offence
cannot be investigated by the police officer without the
permission of the jurisdictional magistrate and also that
such permission can be sought by a private person or the
police officer concerned. There is nothing in the section
to indicate that when an informant approach the
12
Crl.MC No.3221 of 2018
46
police officer, he alone shall seek permission of the
Magistrate to commence investigation. In fact, an
identical contention as now raised by the petitioner
herein was raised in Anto Joseph case ,which was
correctly rejected. Hence, the above contention of the
learned counsel for the petitioner cannot survive.
9. According to the petitioner, the second respondent
had submitted a detailed complaint enclosing the print out
of certain Facebook posts. However, when the permission
was sought, none of the above materials were placed before
the Magistrate. It was hence, contended that the Magistrate
did not have any material before him for a proper
application of mind. It was contended that, in Anto Joseph's
case it was held that learned Magistrate before whom such
information is placed seeking order under section 155 (2)
will have to make sure that the police officer is not
indiscriminately abusing his powers in commencing an
investigation in a non-cognizable case.
10. It is true that there is nothing to show that either
the complaint or the enclosures were placed before the
Magistrate. However, the crux of the facts constituting the
allegation was referred to in the application submitted by
the SHO. Essentially, the very purport of the section 155
Cr.P.C. is to ensure that the power of the police officer to
commence investigation is not indiscriminately used. In
view of that matter, I cannot agree with the contention of
the learned counsel for the petitioner that the Magistrate did
not judiciously apply the mind while according permission to
commence investigation."
(Emphasis supplied)
The High Court of Kerala in the afore-quoted judgments, also
holds that it can either be the first informant or the police officer
who can approach the Magistrate seeking permission to register
an FIR on a non-cognizable offence.
(vii) In PRAKASH RAJ v. STATE OF KARNATAKA13 a
co-ordinate Bench of this Court holds as follows:
"6.2. Section 155(2) of the Code states that in case
a police officer decides to investigate, he cannot do so
13
Criminal Petition No.2394 of 2020
47
without the order of the Magistrate having power to try such
case or commit the case for trial. That means the police
officer has to approach the Magistrate for an order. Section
156 of the Code deals with power of the police officer to
investigate any cognizable offence. He need not approach
the Magistrate for an order as required in relation to a non-
cognizable offence. To make it more clear, for investigating
a non-cognizable offence, what is required is the order of
the Magistrate (permission) and in respect of cognizable
offence, the police officer has got every right to investigate
without any kind of order or permission by the Magistrate.
Since section 155(1) states that after entering the
substance of the information in a book, the Station House
Officer may refer the informant to the Magistrate, it is
necessary to elucidate this aspect. And for this purpose
section 190 of the Code needs to be referred to.
6.3. Section 190 of the Code deals with taking
cognizance of the offences by the Magistrate. A Magistrate
of the First Class and a Magistrate of the Second Class
specially empowered by the Chief Judicial Magistrate can
take cognizance of any offence under three circumstances,
namely (a) upon receiving a complaint of facts constituting
an offence or offences, i.e., under section 200 of the Code
(b) upon a police report under section 173 of the Code and,
lastly (c) upon information received from any person other
than a police officer or upon his (Magistrate's) own
knowledge about commission of an offence. Now, if the
purpose of referring the informant to the Magistrate as
envisaged under section 155(1) is analyzed, it can be said
that it is for the purpose of enabling the informant to make
a complaint to the Magistrate according to section 200 of
the Code if he so desires, and in that event the Magistrate
may take cognizance of the offence according to section
190(a) of the Code if a case is made out. So it is clear that
a person who reports to the police of an offence which is
non-cognizable has every right to make a complaint
according to section 200 of the Code. At the same time it
may also be stated that nothing prevents a police
officer from applying to the Magistrate for an order to
register FIR and proceed further according to section
155(2) of the Code. This is what is discernible if
sections 155 and 190 of the Code are read."
(Emphasis supplied)
48
The co-ordinate bench deviates from the earlier principles laid
down by this Court and holds that nothing prevents a Police
Officer from applying to a Magistrate for an order to register FIR
and proceed according to sub-section (2) of Section 155 of the
Cr.P.C.
9. On a coalesce of all the judgments what would
unmistakably emerge is that, it is open to a Police Officer or any
complainant to approach the Magistrate under sub-section (2) of
Section 155 of the Cr.P.C., to investigate a non-cognizable
offence. There is nothing in the section to indicate that the
informant alone should seek permission from the Magistrate to
commence investigation. I deem it appropriate to concur such
plethora of opinions rendered by various High Courts as what
sub-section (1) mandates referring the informant to the
Magistrate. Sub-section (2) remains silent as to who has to
obtain permission. Therefore, permission can either be sought
by the complainant or by the Station House Officer. Wherefore,
it is not necessary for the informant alone to knock at the doors
of the learned Magistrate with a requisition seeking permission
for registration of FIR, it could be either the informant or the
Station House officer. I am in respectful agreement with the
view taken by other High Courts and the co-ordinate bench of
this Court in PRAKASH RAJ (supra).
10. Coming to the facts of the case at hand, the learned
Magistrate has granted permission as quoted hereinabove. It is
in blatant violation of what is narrated and analysed in the
course of the order. Therefore, I deem it appropriate to quash
the order granting such permission and resultant registration of
crime and direct the learned Magistrate to pass order afresh
upon the requisition made bearing in mind the observations
made in the course of the order. The order shall contain what is
needed to contain as is observed hereinabove.
11. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
49
(ii) The order and the Crime registered on the strength
of the order permitting registration stands
quashed.
(iii) The matter is remitted back to the hands of the
learned Magistrate to pass appropriate orders in
accordance with law bearing in mind the
observations/guidelines laid down in the course of
the order.
(iv) The Registry shall circulate this order to all the
Magistrates in the State for their guidance and its
strict compliance.
(v) The Registry is directed to communicate the order
to the Director General and Inspector General of
Police, for compliance with the guidelines laid down
in the course of the order.”
It is no doubt true that on an earlier occasion in the case of
GOPALAKRISHNA M.N. v. STATE OF KARNATAKA – Criminal
Petition No.55 of 2022 decided on 27th September, 2022 this Court
had followed the judgment in the case of ANAND SINGH supra
and had quashed the proceedings on the ground that the informant
is the one who has to travel to the doors of the learned Magistrate
seeking permission. But, that was only following the judgment in
the case of ANAND SINGH supra. In the subsequent judgment
considering the case of ANAND SINGH, co-ordinate Benches of
this Court had deviated from the said mandatoriness of the
50
informant himself travelling to the doors of the Magistrate and held
that it can be either the informant or the Station House Officer. In
that light considering the earlier judgment of this Bench in VIJESH
PILLAI supra this Court did hold that either the informant or the
Station House Officer can seek permission of the learned Magistrate
in a non-cognizable offence. Merely because the informant does not
go to the Magistrate to seek permission it would not vitiate the
proceedings. Therefore, the contention that the informant has not
sought permission from the hands of the learned Magistrate
becomes unacceptable. But, that would not mean that the matter
should be remitted to the hands of the learned Magistrate or the
concerned special Court, in the light of the offence itself not being
met in the case at hand. Therefore, permitting further proceedings,
despite the aforesaid lacunae in the ingredients for the offence and
the procedural aberration, would become an abuse of the process of
law and result in miscarriage of justice.
10. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petitions are allowed.
51
(ii) Charge sheet in Crime No.107 of 2023 and proceedings
in C.C.No.638 of 2024 pending before the 42nd
Additional Chief Metropolitan Magistrate (Special Court
for Trial of Cases against sitting as well as former
MPs/MLAs, triable by Magistrate in the State of
Karnataka) at Bangalore stand quashed.
Sd/-
______________________
JUSTICE M.NAGAPRASANNA
bkp
CT:SS
[ad_1]
Source link