ALWYN KIRAN MANTHERO & Ors vs THE STATE

Heard learned counsel for the petitioners. Perused the records.

The respondent Police, i.e. Ullal Police Station, Dakshina Kannada District, lodged a chargesheet against the petitioners and others for the

offences under Sections 78(1)(b), 78(2) and 80 of Karnataka Police Act, 1963 on the allegation that the petitioners and others were indulged in

betting on the cricket match, on the ground that it is purely a game of chance.

The factual aspects, particularly, the First Information Report discloses that, on 24.1.2016, when the first informant, Mr.Shyamsundar H.M.,

Police Sub- Inspector was in C.C.B, Mangalore, he received a credible information with regard to some persons indulged in playing cricket

betting, which is a game of chance in the house of a person by name, Alwyn Kiran Monteiro at Chembugadde, Permannur Village, Mangaluru.

After receiving such credible information and after taking permission of the higher officials, the said Police Sub-Inspector went to the spot and

found that three persons, i.e. the petitioners herein were indulged in such game of chance. The Police have seized some articles and money on the

spot, came to the Police Station and registered a case in Crime No.39/2016 for the offences under Sections 78 and 80 of Karnataka Police Act

and also under Section 420 of I.P.C. After investigation, the chargesheet came to be filed.

On a careful perusal of the FIR, it is seen that there is no allegation of whatsoever with regard to the receipt of any information with regard to

any offence being committed under Section 420 of IPC. Therefore, the offences under Sections 78(2) and 80 of the Karnataka Police Act are

held to be non-cognizable offences, as per the decision of this Court, reported in the case of MOIN BASHA KURNOOLI Vs. STATE OF

KARNATAKA BY COWL BAZAAR P.S., BELLARY reported in 2014 (4) KCCR 3355 , wherein this Court has categorically held that the

Police have no jurisdiction to investigate the matter without there being any permission from the jurisdictional Magistrate to investigate a non-

cognizable offence under Section 155(2) of Cr.P.C. Therefore, the initiation of proceedings and proceeding to the spot without the permission of

the jurisdictional Magistrate is bad in law, so far as this case is concerned.

Further, even if we consider that the Police have found the offence being committed under Section 420 IPC during the course of investigation,

but at the time of filing of the chargesheet, such offence under Section 420 IPC has been deleted and the chargesheet has been filed for the

offences under Sections 78 and 80 of the Karnataka Police Act. Therefore, it indicates that in order to avoid proceeding to the Magistrate for

taking permission under Section 155(3), the Police might have used their intelligence to incorporate under Section 420 of IPC, though there was

no ingredient of the said offence made out for the purpose of investigating the matter and filing the chargesheet.

Looking to the above said facts and circumstances, when at the initial stage itself, the Police have got the information only with regard to the

commission of offences under Sections 78 and 80 of the Karnataka Police Act, they ought to have obtained an order of learned jurisdictional

Magistrate for the purpose of investigating the matter under Section 155(2) of Cr.P.C.

Under the above said circumstances, the whole exercise done by the Police indicates that, either to avoid going to the jurisdictional Magistrate

to take permission or to avoid the principles to be followed as laid down in the above said case, reported in 2014 (4) KCCR 3355 , wherein this

Court has categorically held that the Police have no jurisdiction to investigate a non-cognizable offence without the order of the court, they have

invoked Section 420 of IPC without any basis. Therefore, I find sufficient force in the argument of learned counsel for the petitioners that the entire

proceedings is vitiated by serious procedural irregularity, which amounts to illegality and the same is incurable in nature.

Hence, I pass the following:-

''Petition is allowed. Consequently, all further proceedings in C.C.No.2077/2017 on the file of III JMFC Court, Mangaluru against the petitioners

herein for the offences under Section 78(1)(b) and 78(2) and 80 of the Karnataka Police Act is hereby quashed.''

The petitioners are at liberty to move the jurisdictional Magistrate for the release of property and money which are seized and in that event, the

Magistrate has to pass appropriate orders, in accordance with law.