Ramesh vs State & Others

Rajendra Badamikar, J

The petitioner has filed this petition under Section 482 of Code of Criminal Procedure (for short, 'Cr.P.C') for quashing the proceedings in

C.C.No.209/2019 arising out of Crime No.117/2018 of Sindagi Police Station, Vijayapur District on the file of Senior Civil Judge and JMFC Court,

Sindagi registered for the offences punishable under Section 127A(a)(b) of Representation of the People Act, 1951 (for short, 'R.P.Act').

The factual matrix leading to the case are that the complainant-Aravind Amogi Anjutagi, AEE, KBJNL, Rampur (PA), was working as a Flying

Squad No.3. That, on 05.05.2018 at about 2.00 p.m. near Kokatnur bus stop the complainant has received a message that 4-5 supporters and

followers of the petitioner at the instruction of petitioner, were circulating the model ballet paper, wherein the serial numbers of the candidates were

intentionally misprinted and was being circulated among the people in order to create a confusion among them. When the complainant rushed to the

spot, the followers of the petitioner ran away by throwing the ballet papers at the spot and they were seized and this case came to be registered.

Thereafter, the Investigating Officer after investigation submitted the charge-sheet. The Investigating Officer has also sought a permission from the

learned Magistrate to proceed with the investigation and the learned Magistrate simply endorsed on the application submitted by the Investigating

Officer, as ""permitted"" without passing any speaking order. Hence, the petitioner has challenged the proceedings initiated against him before this

Court.

Heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent/State at length. Perused the records.

The learned counsel for the petitioner would submit that taking cognizance and initiation of proceedings by the learned Magistrate itself is against

the settled principles of law. She would further contended that the offences alleged are non- cognizable one and without the leave of the Court, the

Investigating Officer has proceeded to investigate the matter which is against the provisions of Section 155(2) of Cr.P.C.

It is also contended that mere endorsement on the application of the Investigating Officer as ""permitted"" by the learned Magistrate does not amount

to permission as there is no application of judicious mind and hence, she sought for quashing the proceedings.

Per contra, learned High Court Government Pleader has specifically asserted that the Investigating Officer has sought the leave of the court to

proceed with the investigation and accordingly he was permitted by the learned Magistrate by making endorsement on the application itself. Hence, he

contended that only after obtaining permission from the learned Magistrate the Investigating Officer has investigated a non-cognizable offence and as

such he has sought for rejection of the petition.

Having heard the arguments canvassed by both the parties and on perusing the records, it is evident that the FIR was lodged under Section 127(A)

of R.P.Act. Admittedly, the offences alleged against the petitioner is a non-cognizable one and by virtue of Section 155(2) of Cr.P.C the permission of

the learned Magistrate is mandatory for investigation. Further, the Investigating Officer is required to make entry of the gist of the information in a

book to be kept by officer in such form as the State Government may prescribe as per the Section 155(1) of Cr.P.C. But, in the instant case, no

evidence is forthcoming to show that the Investigating Officer has kept any book in this regard. Apart from that, he has moved an application seeking

permission for investigation of the matter and the learned Magistrate without application of mind on the application itself passed an order as

permitted"". Mere asserting that he is permitted, it does not amount to application of mind and the learned Magistrate should ascertain from the

allegations made in the complaint and then only he should have passed an order to proceed with the investigation. But, in the instant case, it is evident

that he is in a mechanical way without application of mind simply endorsed that permission is granted. The said act of the learned Magistrate disclose

that there is no application of mind and in this context the learned counsel for the petitioner has placed reliance on the decision of this Court in Writ

Petition Nos.42073-42075/2018 (GM- RES) and Criminal Petition No.201290/2019. She has also placed reliance on an unreported decision of this

Court in Criminal Petition No.100535/2017 dated 23.03.2017.

In all the above decisions, it is consistently held that in non-cognizable offences, the mere asserting by the learned Magistrate that he is ""permitted

is improper and consistently, it is observed that the learned Magistrate is required to apply his mind by passing some speaking order which is lacking.

Hence, the entire proceedings are vitiated and initiation of proceedings itself is in violation of the provisions of Section 155(2) of Cr.P.C. As such,

petition needs to be allowed and accordingly, I proceed to pass the following :

ORDER The petition is allowed.

The proceedings in C.C.No.209/2019 arising out of Crime No.117/2018 of Sindagi Police Station, Vijayapur district, registered for the offence

punishable under Section 127A(a)(b) of the Representation of the People Act, 1951, pending on the file of the Court of the Senior Civil Judge and

JMFC, Vijayapur are quashed.