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2016 DIGILAW 756 (KAR)

KRISHNA ALIAS KUMAR DEVARAJ v. STATE OF KARNATAKA

2016-10-14

K.N.PHANEENDRA

body2016
ORDER : K.N. PHANEENDRA, J. 1. Heard the learned counsel for the petitioners and the learned High Court Government Pleader. 2. The above said petitions raised common question of law as to whether the police can investigate the offence under Sections 79 and 80 of the Karnataka Police Act, which are non-cognisable in nature without prior permission of the jurisdictional Magistrate, as contemplated under Section 155(2) of Cr.P.C. 3. Criminal Petition No.7496/2016 arising out of the charge-sheet filed in C.C.No.2060/2010 on the file of the V Additional Civil Judge and JMFC, Mysore, whereas the Criminal Petition No.7497/2016 arising out of C.C.No. 322/2015 on the file of the IV JMFC, Mysore. In both the cases, as could be seen the First Information Reports were registered for the offences under Sections 79 and 80 of the Karnataka Police Act. The police have not taken any permission from the jurisdictional Magistrate for the purpose of investigation and even they have not taken permission to file the charge-sheet for the above said offences before the Court. It is contended by the learned counsel for the petitioners that the said offences are non-cognisable in nature and the police have no jurisdiction to register and investigate the case without prior permission of the jurisdictional Magistrate as contemplated under Section 155(2) of the Criminal Procedure Code. The learned counsel also contended that, this Court in Criminal Petition No. 100319/2014 dealing with the above said matter has observed that Sections 79 and 80 of the Karnataka Police Act falls under the category of non-cognisable offence. Therefore, the police cannot investigate nor file any charge sheet without prior permission of the jurisdictional Magistrate under Section 155(2) of the Cr.P.C. 4. The above said two cases particularly in Criminal Petition No.7496/2016 the police have alleged that on 21.5.2010 the accused persons were playing a game with cards by name "Andar bahar" and the police have raided the said place which is Jai Chandra lodge and seized certain articles and also after investigation filed the charge-sheet. Likewise, in Criminal Petition No.7497/2016 the facts involved are of similar in nature wherein, on 11.12.2008 the respondent police have raided the same Jai Chandra lodge at 6.45 p.m. and found that the accused petitioners were playing "Andar bahar" game by using playing cards. In that case also some amount and some articles were seized by the police. 5. Likewise, in Criminal Petition No.7497/2016 the facts involved are of similar in nature wherein, on 11.12.2008 the respondent police have raided the same Jai Chandra lodge at 6.45 p.m. and found that the accused petitioners were playing "Andar bahar" game by using playing cards. In that case also some amount and some articles were seized by the police. 5. This Court while dealing with the above said point of law after discussing in detail came to the conclusion that the offences under the Karnataka Police Act which are not specially considered as cognisable offences falls under the category of non-cognisable offences, in a case law reported in (2014) 4 KCCR 3355 : (2015 (1) AKR 1) relevant portion of the judgment is reiterated below : "Case Note : Criminal - Quashing of proceedings - Sections 173, 460 and 461 of Code of Criminal Procedure, 1973 and Section 78(3) of Karnataka Police Act - Present petition filed for quashing of proceedings initiated against petitioners-accused, for playing illegal game of 'Matka' under Section 78(3) of Act -Whether Section 78(3) of Act, was cognisable or non-cognisable offence and investigation of cases were vitiated by incurable illegalities for want of permission to investigate by competent Magistrate - Held, combined reading of provisions of Sections 2(c) and 2(e) read with Schedules I and II appended thereto, cleared that, insofar as other penal laws were concerned, offences which were punishable with imprisonment less than three years and fine only were categorized as non-cognisable offences - Though Section 88 of Act empowered police to arrest person without warrant for offence under Section 78(3) of Act, it could not be said that such non-cognisable offence could be deemed to be considered as cognisable offence - Magistrate had taken cognizance on basis of report of Police Officer which could not be treated as report under Section 173 of Code - So provisions of Sections 460 and 461 of Code also did not come to aid of Police to file report to Magistrate to take cognizance, unless he treated report as complaint under Section 2(d) of Code - Therefore, offence under Section 78(3) of Act should be categorized as non-cognisable offence as per II Schedule of Code, 1973 and entire investigation and cognizance and all further proceedings were vitiated by incurable defects and illegality - Petition allowed, (paras 19, 39 and 50). 6. 6. In view of the said decision, this case also falls under the same category as offences under Sections 79 and 80 of Police Act, are not punishable with imprisonment for more than 3 years. Hence they are also to be treated as non cognisable offences. Hence the entire investigation and filing of the charge-sheet is completely vitiated by serious illegality and procedural irregularity, the illegality crept in is not curable in nature. Hence, both the petitions deserve to be allowed. As such, the following order is passed: 7. Both the criminal petition in Nos.7496/2016 and 7497/2016 are hereby allowed. Consequently, the entire proceedings in C.C.Nos.2060/2010 and 322/2015 pending on the file of V Addl. CJ (Jr. Dn) & JMFC, Mysore and JMFC-IV, Mysore, respectively are hereby quashed. In view of the petitions being disposed of on merits, IA No. 1/2016 does not survive for consideration and accordingly it stands dismissed.