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2019 DIGILAW 1650 (KAR)

Bheemannagouda v. State Of Karnataka

2019-07-10

ASHOK G.NIJAGANNAVAR

body2019
JUDGMENT : Ashok G Nijagannavar, J. 1. This petition is filed under Section 482 of Cr.P.C. for quashing the proceedings in C.C.No.177/2017 arising out of Crime No.16/2016 of Devadurga Police Station for the offences punishable under Sections 171(H) & 188 of IPC. 2. The facts leading to this petition are that on the basis of the complaint filed by one Sri.Shivasharanappa Kattole, Tahasildar Deodurga, the respondent - police have registered the case. The allegations are that on 18.1.2016 the petitioner had submitted an application seeking permission to hold the meeting on behalf of the Congress party. Considering the said application, the permission was granted. Thereafter, it was learnt that on 19.1.2016 a public meeting was held in a Kalyan Mantap at Manasgal Renganath Temple, a public place and thereby the petitioner has violated the Election Code of Conduct. 3. This matter is at the stage of admission. With the consent of both the learned counsel appearing on both side, this petition is taken up for final disposal. 4. Heard the learned counsel for the petitioner and respondent. Perused the records. 5. The learned counsel for the petitioner submitted that the cognizance taken by the learned Magistrate and the proceedings initiated by filing the charge sheet are not in accordance with law. As such, the said proceedings cannot be sustained in law. There are valid grounds for quashing the entire proceedings. 6. The learned counsel for the petitioner has relied on the following decisions: 1. M.S.Ahlawat vs. State of Haryana and Another, (2000) 1 SCC 278 2. Sachida Nand Singh and Another vs. State of Bihar and Another, (1998) 2 SCC 493 3. Thipparaju vs. State of Karnataka, (2018) 4 KarLJ 695 4. Dr.K.P.Gopal Krishna vs. H.Hariyappa, Sub-Inspector, Jeevanbheema Nagar, Police Station, Bengaluru and Another, (2018) 1 KarLJ 469 5. Sri F.J.M.Crasta vs. The State of Karnataka by its Secretary, Education Department and Others, (2018) ILR(Kar) 369 7. Per contra, the learned Addl. S.P.P. submitted that the impugned order passed by the learned Magistrate and initiation of proceedings are in accordance with law. There are no grounds to interfere with the said orders or to quash the further proceedings. As such the petition deserves to be dismissed. 8. Section 195 of Cr.P.C. reads as under: 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. There are no grounds to interfere with the said orders or to quash the further proceedings. As such the petition deserves to be dismissed. 8. Section 195 of Cr.P.C. reads as under: 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate................ 9. In the case of Thipparaju (supra) observed as under: 14. The provisions of Section 2(d) of Cr.P.C. defines the 'complaint' which reads as under: "2(d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." 15. Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated under Section 195 of Cr.P.C. being mandatory and there being noncompliance, the Magistrate has committed illegality in taking cognizance of the offences i.e., without the complaint being made to him in writing by the public servant concerned. 16. This Court in identical circumstances in the case of Sri Manikanta v. State of Karnataka and Others, in W.P.No.23611 of 2015, dated 16.06.2015, wherein also the police have registered a case in Crime No.167 of 2014 for the offences punishable under Sections 78 and 79 of the Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of case under Section 188 of IPC becomes illegal as bar contained under Section 195 of Cr.P.C. held that the remaining provision under Sections 78 and 79 of the Karnataka Police Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. Therefore, this Court has quashed the proceedings. 10. 10. In the case of Dr.K.P.Gopal Krishna (supra) observed as under: In this regard, Section 195 of Cr.P.C. clearly indicates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. These provisions, in fact, have not been looked into by the learned Magistrate before passing the impugned Order. This is a glaring mistake committed by the learned Magistrate and it appears that the Magistrate passed the Order mechanically even without looking into the averments in the charge sheet to ascertain whether he has any jurisdiction to issue summons against the accused. This type of order passed without looking into the law should be deprecated, such Officers shall be properly trained in the Judicial Academy often calling them for training. The Learned Magistrate who has passed the order should have gone through the provisions under Section 188 of IPC and 195 of Cr.P.C. before issuing any process. Calling a person to the Court by issuing summons or warrant, is a very serious act of the Court. If unnecessarily or without any law, any orders are passed, it virtually creates a paralytic stroke to the legal right of a person. The court cannot have any exception that due to some oversight or due to some pressure of work, such act has been done. Such explanation is not acceptable in the judicial system. It is the duty of the learned Magistrate before taking cognizance of the offence to go through the contents of the charge sheet or private complaint. First they have to ascertain whether any offence has been constituted after analyzing the averments made in the charge sheet. Secondly, they have to ascertain as to whether the court has got jurisdiction to entertain the charge sheet. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India. 11. Thirdly, whether there is any legal impediment to take cognizance as to whether any compliance under law is required to be made before filing such charge sheet. These are all the aspects the court has to take note before passing such order affecting liberty of a citizen, whose right of liberty is guaranteed under the constitution of India. 11. In the case on hand, the records disclose that on the basis of the complaint filed by the Government Official who was on election duty, the Police have registered the case and conducted the investigation for the aforesaid offences. The learned Magistrate has passed the order for taking cognizance without looking into the contents of the charge sheet or considering the procedure to be followed as required under Section 195 of Cr.P.C. Admittedly, the complainant being public servant has lodged a complaint before the police instead of filing it before the jurisdictional Magistrate. Therefore, the initiation of proceedings on the basis of the complaint filed by the election officer and the cognizance taken by the learned Magistrate are contrary to law and procedure prescribed. As such, the initiation of criminal proceedings in C.C. cannot be sustained in law. Hence, I proceed to pass the following ORDER The petition is allowed. The entire proceedings initiated in C.C.No.177/2017 arising out of Crime No.16/2016 pending on the file of Civil Judge & JMFC Devadurga is quashed. Since the main petition is disposed of, I.A.No.1/2019 does not survive for consideration. Hence, same is disposed of.