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2021 DIGILAW 640 (KAR)

Shivashankarachari S/o Nagendrachari v. state of Karnataka by Pavagada Police Station, Pavagada Circle, Tumkur District (Represented by State Public Prosecutor, High Court Buildings, Bengaluru

2021-06-04

S VISHWAJITH SHETTY

body2021
ORDER : Heard the learned counsel for the petitioners and learned counsel for the respondent. 2. On the report of PSI-Kantharaj.K, Pavagada dated 21.08.2017, NCR was registered against the petitioners and a requisition was given by the investigation Officer to the learned Magistrate to permit them to conduct investigation as provided under Section 155(2) of Cr.P.C having regard to the fact that the alleged offence under Section 78(3) of the Karnataka Police Act, 1963 is non-cognizable offence. The learned Magistrate has made an endorsement to the effect “permitted” on the very same requisition submitted by the investigating officer and thereafter FIR, has been lodged in Cr.No.197/2017 of Pavagada Police Station of Tumkur District and police after investigation have filed a charge sheet against the petitioners for the offences punishable under Section 78(3) of Karnataka Police Act, 1963 which is now pending in C.C.No.579/2017 before the Court of Principal Civil Judge and JMFC., Pavagada. The petitioners have questioned the validity of said proceedings on the ground that that the learned Magistrate had no jurisdiction to take cognizance of the alleged offences having regard to the fact that no valid permission as required under law was granted to the investigating officer by the learned Magistrate. 3. The learned counsel for the petitioners submits that the endorsement made on the requisition submitted by the investigating officer to the effect “permitted” is not in compliance of the requirement of Section 155(2) of Cr.P.C. He also submitted that there is no application of mind by the learned Magistrate at the time of granting such a permission and therefore, he prays to allow the petition. 4. Per Contra, learned HCGP opposes the petition and contends that charge sheet has been already filed and therefore, the petitioners are required to stand trial for the said offences. Validity of the proceedings could be considered even at the time of trial and therefore, there is no requirement to exercise the power under Section 482 of Cr.P.C. and accordingly, he prays to dismiss the petition. 5. There is no dispute that the petitioners have been chargesheeted for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 which is a non-cognizable offence. Section 155(2) of Cr.P.C. provides that prior to registration of the case and proceeding for investigation in respect of a non-cognizable offence a permission is required to be obtained from the jurisdictional Magistrate. Section 155(2) of Cr.P.C. provides that prior to registration of the case and proceeding for investigation in respect of a non-cognizable offence a permission is required to be obtained from the jurisdictional Magistrate. Failure to obtain such a permission would vitiate the proceedings. In this case learned Magistrate has granted permission under Section 155(2) of Cr.P.C by making an endorsement to the said effect in the requisition submitted by police. This Court in Crl.P.No.101997/2019 disposed on 10.12.2019 under similar circumstances while quashing the Criminal proceedings has laid down certain guidelines for the benefit of the judicial officers working in the state which reads as follows: “20. Therefore, under Rule I, 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 24 of the Karnataka Criminal Rules Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State. (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 25 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. (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.” 6. In the said judgment it is held by this Court that a endorsement made on the police requisition is not an order in the eye of law as mandated under Section 155(2) of Cr.P.C. and having regard to the law laid down by this Court in the above referred judgment, I am of the considered view that the impugned criminal proceedings cannot be sustained for the simple reason that the prosecution has failed to obtain any permission under Section of 155(2) of Cr.P.C. from the jurisdictional Magistrate before proceedings to investigate the case. Non compliance of the requirement of Section 155(2) of Cr.P.C. could vitiate the entire proceedings before the trial Court and therefore, continuation of the proceedings would be futile and to secure the ends of justice, it is necessary to quash the entire proceedings as prayed for by the petitioners. Accordingly, I pass the following: ORDER Criminal petition is allowed. Criminal Proceedings in C.C.No.579/2017 pending on the file of Principal Civil Judge and JMFC, Pavagada (Crime No.197/2017 of Pavagada Police Station, Pavagada Circle, Tumkur District, charge sheeted for the offence punishable under Section 78(3) of Karnataka Police Act, 1963) is hereby quashed.