Alywin Kiran Monthero & Ors vs State Of Karnataka

M G Uma, J

Petitioners being accused Nos.1 and 2 in CC No.2829/2019 on the file of the learned JMFC III Court Mangalore, registered for the offences punishable under Sections 78 and 80 of the Karnataka Police Act are seeking to quash the criminal proceedings initiated against them.

Heard Smt.Pooja Kattimani, learned counsel for the petitioners and Smt. Asma Kouser, learned Additional SPP for respondent. Perused the materials on record.

In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

"Whether the petitioners have made out any grounds to allow the petition and to quash the criminal proceedings initiated against them?"

My answer to the above point is in the 'Affirmative' for the following:

REASONS

It is the contention of the prosecution that CCB Sub Inspector of Police, Ullal Police Station, Mangalore received credible information on 06.12.2018 that some persons were betting on a cricket match by using their laptop at Monthero House, Chembugudde. On the basis of such information, the Sub Inspector of Police went to the spot along with his staff. By confirming that three persons were involved in Cricket Betting, he filed the first information with Ullal Police Station. NCR was registered against three unknown persons and sent requisition to the Magistrate seeking permission. After getting permission, a raid was held. Accused Nos.1 and 2, who are petitioners herein were apprehended. Subsequently, even accused No.3 was apprehended. After registering FIR, investigation was completed and the charge sheet came to be filed for the above said offences.

It is the contention of the petitioners that there is non-compliance of Section 155(2) of Cr.PC. Learned counsel for the petitioner places reliance on the decision of this Court in VAGGEPPA GURULINGA JANGALIGI (JANGALAGI) VS. THE STATE OF KARNATAKA, THROUGH PSI, KAGWAD POLICE STATION, BELAGAVI ILR 2020 KAR 630, where the coordinate Bench of this Court considered a case in detail and issued guidelines for the police, as well as to the Trial Court to be followed while considering registration of the non-cognizable offences. This Court in the aforesaid judgment at paragraph Nos.19 to 21 held as under:

Chapter V Rule 1 of Karnataka Criminal Rules of Practice, 1968 also deals with investigation of non-cognizable case. The said provision reads as follows:-

"INVESTIGATION AND PROSECUTION

*1. Report under Section 154.-(1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by the post or muddam.

(1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted."

Therefore, under Rule 1, 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 of the Karnataka Criminal Rules of 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 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.

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.

Coming to the case on hand, the SHO of Kagwad Police Station received a complaint from PSI on 23/9/2019 and SHO submitted a requisition to IV Additional JMFC, Athani, seeking permission to investigate the offence under Section 87 of the K.P. Act which is a non-cognizable offence. It is seen that the Learned Jurisdictional Magistrate has made an endorsement on the requisition which reads as follows:-

"Perused materials. Permitted

Sd/-"

In the present case, on perusal of materials on record it is noticed that the requisition from the Sub Inspector of Police, Ullal Police Station was received on 06.12.2018 and on receipt of the same, learned Magistrate has passed the following order:

" The requisition received on 06.12.2018 at 2.00 p.m., I have perused the requisition and its enclosures, it reveals that 3 persons are involved in betting on cricket in the Monthero house at Permernuru village, Mangaluru. Hence, permission is accorded."

Learned counsel for the petitioners has produced the order dated 31.01.2022 passed in Crl.P.No.6643/2021, where the coordinate Bench considering the facts and circumstances of the case, allowed the petition that was filed by accused No.3 on the ground that the complainant was not referred to the learned Magistrate for the purpose of getting permission as required under Section 155 (1) and (2) of Cr.PC before conducting investigation. Therefore, learned counsel for the petitioners contends that on parity, the petitioners who are arrayed as accused Nos.1 and 2 are also entitled for similar relief. Satisfied with the submissions made.

In view of the above, I am of the opinion that the petitioners are entitled for the benefit of parity of quashing the criminal proceedings registered against them, as such proceedings against accused No.3 is already quashed. Accordingly, I answer the above point in the affirmative.

ORDER

(i) The Criminal Petition is allowed.

(ii) The criminal proceedings initiated in CC No.2829/2019 pending on the file of the learned JMFC III Court Mangalore, registered for the offences punishable under Sections 78 and 80 of the Karnataka Police Act, is hereby quashed against the petitioners.

(iii) The petitioners are at liberty to file necessary application for the release of any movables that are seized from their custody if they are advised to do so.