B. Somanath Kotian vs State of Karnataka

A.N. Venugopal Gowda, J.—Assistant Commissioner of Police, Mangaluru, North Division, on 26.10.2012, at about 4.30 p.m., while checking vehicles at NH-66 - Panambur Jokatte Road, having found two pickup vans, bearing registration Nos. KA-19D/6262 and KA-21/A-6224, loaded with wooden logs, intercepted the same and during the course of enquiry, found the petitioner and others having cut and removed the timber from the property of CW-7 and transporting the same without any permission. The timber along with vehicles were seized and a mahazar was prepared and the petitioner along with others were arrested. A written complaint having been filed against the petitioner and others, a case in Crime No. 189/2012 was registered against the petitioner and others, for the offences punishable under the provisions of the Karnataka Forest Act and Rules and Karnataka Preservation of Trees Act, 1976. After investigation, a charge-sheet having been submitted to the JMFC (II Court), Mangaluru, a case in C.C. No. 19/2013 was registered for the offences punishable under Rules 130, 145, 165 read with Rule 144 of Karnataka Forest Rules, 1969 and Sections 8 and 22 of Karnataka Preservation of Trees Act, 1976. Assailing the said action and seeking quashing of the entire proceedings of the said case, this petition under S. 482 Cr.P.C. was filed.

Sri Nishit Kumar Shetty, learned advocate contended that the offences for which the charge-sheet was filed are non cognizable in nature and in view of S. 155(2) of Cr.P.C., a Police Officer cannot investigate a non cognizable case without the order of the Magistrate having power to try such case or commit the case for trial. He submitted that, in the instant case, police registered the case for the aforesaid offences under S. 154 Cr.P.C., without there being an order of the competent Magistrate under S. 155(2) of Cr.P.C., proceeded in the matter and investigated the offences in question and submitted the charge-sheet, the cognizance of which was mechanically taken by the learned Magistrate. He submitted that the impugned action being illegal, the petitioner is entitled to the relief sought, on account of the ratio of the decisions reported in the cases of Keshav Lal Thakur Vs. State of Bihar, and Sri Lingaraj v. The State of Karnataka, 2012(3) KCCR SN 83.

Learned HCGP on the other hand submitted that the petitioner can raise all objections during the course of trial and no interference at this stage is called for.

On the own showing of the respondent -police, the offence of which the petitioner was charge-sheeted are non cognizable and therefore, they could not have registered a case for the said offences under S. 154 of Cr.P.C., in the absence of an order of the competent Magistrate under S. 155(2) of Cr.P.C. Learned HCGP did not dispute the fact that the jurisdictional Magistrate did not pass any order directing investigation by the police. Consequently, the registration of the case, its investigation and submission of the report by the police to the Court and based on which cognizance was taken is illegal.

The ratio of the two decisions on which Sri Nishit Kumar Shetty placed reliance squarely applies to the instant case. Consequently, there being abuse of process by the respondent, causing harassment to the petitioner, there is need to interfere in the matter.

In the result, the petition is allowed and the case in C.C. No. 19/2013 on the file of JMFC (II Court), Mangaluru, in so far as the petitioner is concerned, is quashed. However, liberty is reserved to the respondent to proceed against the petitioner and others, in accordance with law.