Prasad Mallappa Gudagnavar R/o Kurbar Galli, Gokak v. State Of Karnataka Gokak Town Police Station
2020-09-29
SURAJ GOVINDARAJ
body2020
DigiLaw.ai
JUDGMENT Suraj Govindaraj, J. - Shri Ramesh Chigari, learned HCGP accept notice for respondent. 2. The petitioners, who are accused Nos.15, 46 to 48 are before this Court seeking for quashing of the order dated 26.05.2018, passed in C.C.No.1043/2018 by the Prl. Civil Judge and JMFC Court, Gokak taking cognizance for the offences punishable under Sections 79 and 80 of the Karnataka Police At and Sections 341, 353, 224 read with Section 149 of IPC. 3. It is alleged that the FIR and complaint in Crime No.207/2017 was registered for the aforesaid offences on 21.10.2017. In the said complaint it is alleged that on 21.10.2017 at about 0005 hours the complainant received information that around 60 to 70 persons were engaged in playing cards in Prince Social Club. The complainant after intimating the same to his superior officials as also obtaining the permission from the Magistrate. 4. The complainant after securing the senior officials and some staff and panchas, went to the spot. At about 1:15 a.m., he found that around 60 to 70 persons were playing cards Andhar-Bahar. The said persons stated to have obstructed in the discharge of official duty. On a search an amount of Rs.4,30,470/- was seized, an investigation was conducted and charge sheet was filed for the aforesaid offences. 5. Shri N.D. Gunde, learned counsel for the petitioners would submit that the order passed by the Magistrate is not in accordance with the decision rendered by this Court in the case of Vaggeppa Gurulinga Jangaligi vs. the State of Karnataka through P.S.I. Kagwad Police Station, Kagwad, (2020) 1 KCCR 371 , wherein it has been categorically stated that before granting permission, the Magistrate is required to apply his mind and record an order, which would establish the said application of mind. He further submits that in the present case the Magistrate has only endorsed "permitted" on the requisition sent by the complainant. The said endorsement does not indicate the application of mind and is therefore violative of requirement under Section 155(2) of the Cr.P.C. as held by this Court in the case of Vaggeppa Gurulinga Jangaligi (Supra). On this ground, he submits that the proceedings are required to be quashed. 6.
The said endorsement does not indicate the application of mind and is therefore violative of requirement under Section 155(2) of the Cr.P.C. as held by this Court in the case of Vaggeppa Gurulinga Jangaligi (Supra). On this ground, he submits that the proceedings are required to be quashed. 6. Shri Ramesh Chigari, learned HCGP for the respondent State would submit that the fact that the complainant has taken the permission from the learned Magistrate is sufficient and in compliance with the provisions of Section 155(2) of the Cr.P.C. The complainant was only required to seek for such permission, which has been granted by the learned Magistrate; that would be sufficient for the complainant to investigate and initiate the proceedings against the accused and as such he submits that the proceedings ought to go on and this Court ought not to quash the complaint at this stage. 7. Heard Shri N.D. Gunde, learned counsel for the petitioners and Shri Ramesh Chigari, learned HCGP for the respondent State. Perused the papers. 8. Having perused the judgment of this Court in the case Vaggeppa Gurulinga Jangaligi (Supra), it is clear more so in terms of paragraph No.18, which is extracted hereunder for easy reference: "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 noncognizable 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 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 noncognizable case without the order of the Magistrate having power to try such case or commit such case for trial.
Section 155(2) of Cr.P.C. specifically provides that no police officer shall investigate the noncognizable 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 Subsection (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'." 9. In the said judgment there are certain aspects, which are required to be considered by the Magistrate before granting permission. There cannot be a mechanical granting of permission for the initiation of criminal prosecution. 10. A perusal of the complaint indicates only perfunctory statements, which are made as regards the alleged offences under and Sections 341, 353, 224 read with Section 149 of IPC, they are without any substance and perhaps made only to avoid the requirement of compliance with Section 155(2) of the Cr.P.C. In view thereof, the said provisions not being attracted and the entire proceedings against the petitioners are concerned in C.C.No.1043/2018 pending on the file of the Prl. Civil Judge and JMFC Court, Gokak are hereby quashed. 11. Accordingly, the petition is allowed.