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2015 DIGILAW 1200 (KAR)

Ravendra v. State of Karnataka

2015-10-28

RATHNAKALA

body2015
ORDER : Rathnakala, J. 1. Learned Addl. SPP is directed to take notice for R-1. 2. The petitioner herein is arrayed as accused No. 16 in the FIR registered by respondent No. 1 on the complaint of respondent No. 2. The allegation of the prosecution is that this petitioner along with co-accused was indulged in gambling. I.O. on credible information went to the spot along with panchas raided the spot, seized the incriminating materials, thereafter, on getting permission from the jurisdictional magistrate, has registered the case in NCR No. 214/15. 3. Sri Bharath Kumar V., learned Counsel for the petitioner submits that offence alleged since non-cognizable in nature, the Investigating Officer was required to follow mandatory provisions under Section 155(1) & (2) of Cr.P.C. (for short 'the Code') and he had no jurisdiction to investigate without prior permission of the Court. After the major part of the investigation was carried out, he has registered the case and thereafter obtained permission from the jurisdictional Magistrate, which is not in accordance with the scheme of Section 155(1) & (2) of the Code. This Court has been consistently quashing the criminal proceedings in respect of non-cognizable cases, where investigation is not preceded with the order of the Magistrate. 4. Sn Vijayakumar Majage, learned Additional SPP distinguishing the present case from the earlier ones referred to by the petitioner (wherein proceedings were quashed) submits that, the Investigating Officer on credible information obtained search warrant from the Magistrate, raided the spot and seized incriminating material under Mahaazar in the presence of panchas, arrested the accused, returned to the Police Station with seized articles and arrested the person, registered the case in Non-cognizable Case Register, on obtaining necessary permission from the Magistrate under Section 155(2) of the Code, registered the F.I.R. It is not a case where a private party approached the Investigating Officer with the allegation of non-cognizable offence. Hence referring the informant to the Magistrate as at Section 155(1) of the Code, would not arise. It is a case under the Karnataka Police Act, Section 155(2) have to be read independently without reference to Section 155(1) of the Code. The Investigating Officer after compliance of procedure contemplated under Section 155(2) has registered the case. The petitioners have not made out any case to invoke jurisdiction of the Court under Section 482 of the Code. 5. It is a case under the Karnataka Police Act, Section 155(2) have to be read independently without reference to Section 155(1) of the Code. The Investigating Officer after compliance of procedure contemplated under Section 155(2) has registered the case. The petitioners have not made out any case to invoke jurisdiction of the Court under Section 482 of the Code. 5. The informant of the case is Police Inspector/Station House Officer of the respondent/Police. On his own showing, at the direction of his superior Officer and also with the search warrant issued by him, he went to the spot with his staff and panchas and has came out search warrant in respect of search of a place as contemplated by Section 94 of the Code and the authority to issue search warrant is with District Magistrate, Sub-divisional Magistrate and Judicial Magistrate of first class. It is not clear who was the authority that issued search warrant. However, the things stand cleared that the Investigating Officer had definite information about the place and nature of offence. It is not as if he went to the spot to ascertain the credibility of information. He has gone to the spot well prepared with his staff and panchas. The first and foremost duty of an officer in charge of a Police Station on receiving an information about commission of an offence within his jurisdiction is, to reduce the same into writing. As per the procedure contemplated, if the information is about commission of a cognizable offence, the procedure under Section 154 and in respect of non-cognizable offence incidents of Section 155(1) shall follow which reads as below: "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". 6. In the case on hand, it is evident that there was enough of space and time for the Investigating Authority to get a search warrant, but at the same time, they have not obtained permission to investigate. 6. In the case on hand, it is evident that there was enough of space and time for the Investigating Authority to get a search warrant, but at the same time, they have not obtained permission to investigate. It is only after raid is conducted, which is sufficiently a major part of investigation, N.C. case is registered, thereafter permission for investigation is obtained and case is registered. The procedure followed is identical of putting the horse behind the cart. Any raid/investigation carried out prior to registration of a complaint is bad in law as per judgments of this Court in Girishchandra Vs. The State by Lokayuktha Police, ILR 2013 Kar 983, D.R. Raviprakash Vs. State of Karnataka in Crl.P. No. 7094 of 2012; Sri. Shivanna Vs. State of Karnataka in Crl.P. No. 6978 of 2013; K.S. Ravindra & Another Vs. The State of Karnataka in Crl.P. No. 10423 of 2013 & Sri Mallikarjuna @ Fighter Ravi Vs. The State of Karnataka in Crl.P. No. 5745 of 2015. 7. The illegality takes into its fold present case for the above said reason and cannot be allowed to continue any more and deserves to be quashed. Accordingly, the petition is allowed. The F.I.R. in Crime No. 296/2015 dated 1.8.2015 pending before the M.M.T.C.-I, Mayo Hall, Bangalore, is hereby quashed.