Thipparaju @APPELLANT@Hash The State of Karnataka

The petitioner has filed the present criminal petition to quash the entire proceedings in C.C.No.28/2015 arising out of Crime No.76/2013 pending on

the file of the Additional Senior Civil Judge and JMFC-I, Raichur.

It is the case of the prosecution that one Sikandar Basha, an Government Officer Gazetted, Flying Squad Chief lodged a written complaint before

the Netaji Nagar police station alleging that he has received information on 16.04.2013 at 11.00 a.m. at the time of submission of nomination of

assembly election in Raichur Rural Constituency 53, one Tipparaju Hawaldar, a BJP candidate engaged unauthorized private vehicles by giving money

to the said vehicle owners for the purpose of bringing the voters and campaign at the time of submitting his nomination by violating the code of conduct

of election and without obtaining the permission from the authorized election officer. It was further alleged that the Gazetted Officer along with his

staff and panchas seized 11 vehicles and filed the complaint before Netaji Nagar police station for the offences punishable under Sections 171-H and

188 of IPC. The respondent â€" police have registered a case in Crime No.76/2013 against the accused/petitioner and submitted the charge sheet

against him. Hence, the present is filed petition to quash the entire proceedings in Crime No.76/2013.

I have heard the learned counsel for the parties to the lis.

Sri Mahadev S. Patil, learned counsel for the petitioner vehemently contended that the very initiation of proceedings under the provisions of Section

171-H of IPC without prior permission from the learned Magistrate to investigate is not maintainable. He further contended that to initiate any criminal

proceeding against the accused under Section 188 of IPC, the complainant has to file a private complaint as contemplated under Section 195 of

Cr.P.C. He further contended that the petitioner is innocent and has not committed any crime muchless as alleged in the complaint and has been

falsely implicated in the crime by the police. He further contended that the Court cannot take cognizance unless a public servant files a private

complaint under Section 200 of Cr.P.C. It is further contended that Section 171-H is non-cognizable offence and the police cannot investigate the

matter without prior permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C. He further contended that though the petitioner has

filed discharge under Section 239 of Cr.P.C., the learned Magistrate has held that this Court has power under Section 482 of Cr.P.C. and Trial Court

already took cognizance and cannot go behind the stage of taking cognizance.

Therefore, sought to quash the proceedings by allowing the present petition.

Sri Mallikarjun Sahukar, learned High Court Government Pleader for the respondent sought to justify the impugned order passed by the Trial Court

and has not disputed the fact that before initiation of proceedings under Section 171-H of IPC, the police have to take prior permission of the

Magistrate. He also submits that the Court cannot take cognizance unless a public servant files a private complaint under Section 200 of Cr.P.C.

Having heard the learned counsel for the parties, the material on record clearly depicts that there was no complaint in writing by the complainant,

who was an official of Gazeetted Flying Squad Chief against the petitioner before the jurisdictional Magistrate alleging the offence under Section 188

of IPC. On the other hand, he has filed a complaint to the jurisdictional police for investigation. The registration of a case by the police under Section

188 of IPC itself is illegal. On the date of registration of case itself, the bar under Section 195 of Cr.P.C. was operating and the police gets no

jurisdiction even to register a case under Section 188 of IPC. Once an illegality perpetrates into the investigation, such investigation is hit by the

statutory principles, then it cannot be construed as a legal proceeding or a legal investigation by the police. Therefore, as rightly contended by the

learned counsel for the petitioner, the Magistrate could not have taken cognizance for the offence under Section 188 of IPC without there being a

private complaint in writing by the public servant.

It is relevant at this stage to consider the provisions of Section 195 of Cr.P.C., which reads as under:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to document

given in evidence. â€" (1) No Court shall take cognizance â€

 (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal code (45 of 1860), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public

servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely Sections 193 to 196 (both

inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in

any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is

alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except

on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate].

 (2) Where a complaint has been made by a public servant under clause (a) of sub-section

(1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court;

and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court†means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a

Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section.

(4) For the purposes of clause (b) of Sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the

appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeals ordinarily lies, to the principal

Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

Provided that â€

(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdictional shall be the Court to which such Court shall be deemed to

be subordinate;

(b) Where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to

the nature of the case or proceeding in connection with which the offence is alleged to have been committed.â€​

A plain reading of the said provision makes it clear that there is a statutory bar to the Court for taking cognizance unless the complaint in writing

made by the public servant concerned or some other public servant to whom he is administratively subordinate. In view of the above, the said

provision takes away the general power of the Magistrate under Section 190 of Cr.P.C.

Insofar as initiation of proceedings under Section 171-H of IPC is concerned, which reads as under:

“Illegal payments in connection with an election. - Whoever without the general or special authority in writing of a candidate incurs or authorises

expenses on account of the holding of any public meeting, or upon any advertisement, circular or publications, or in any other way whatsoever for the

purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to file hundred rupees.

Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from

the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the

authority of the candidate.â€​

A plain reading of the said Section makes it clear that the punishment imposed is fine that may extend to Rs.500/-. Therefore, the said provision is

categorized as non-cognizable offence under the classification of the offences in Schedule-I to the Cr.P.C. When the offence is declared as non-

cognizable in nature, Section 155(2) of Cr.P.C. bars the police to investigate such matter without valid permission from the jurisdictional Magistrate.

The provisions of Section 155(2) of Cr.P.C. clearly depicts that:

“Information as to non-cognizable cases and investigation of such cases and sub-section (2) specify that no police officer shall investigate a non-

cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.â€​

The Apex Court in the case of M.S.Ahlawat vs. State of Haryana and Another reported in (2000) 1 SCC 278 held that the provisions of Section

195 of Cr.P.C. are mandatory and no Court has jurisdiction to take cognizance of the offences mentioned therein, unless there is a complaint in writing

as required under that Section.

The Apex Court in the case of Sachida Nand Singh and Another vs. State of Bihar and Another reported in 1998(2) SCC 493, while considering

the provisions of Section 190 of Cr.P.C. held in paragraph No.7 as under:

Section 190 of the Code empowers “any magistrate of the first class†to take cognizance of “any offence†upon receiving a complaint, or

police port or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to

move the Court with a complaint is to that extent curtailed. It is a well-recognized canon of interpretation that provision curbing the general jurisdiction

of the Court must normally receive strict interpretation unless the statute or the context requires otherwise (Abdul Waheed Khan vs. Bhawani, AIR

1966 SC 1718).â€​

The Hon’ble Supreme Court in the case of Daulat Ram vs. State of Punjab reported in AIR 1962 SC 1206 wherein it was held that where the

cognizance of the offence had been taken on police report by the Magistrate and the appellant therein, had been tried and convicted, though the public

servant concerned, the Tahsildar, had not filed any complaint. Considering the factual background and while allowing and setting aside the judgment of

conviction and order of sentence passed on the appellant it has been held as under:

“The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant, namely, the

Tahsildar in this case. The trial was thus without jurisdiction ab-initio and the conviction cannot be maintained.â€​

The provisions of Section 2(d) of Cr.P.C. defines the ‘complaint’, which reads as under:

“2(d). “complaint†means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some

person, whether known or unknown, has committed an offence, but does not include a police report.â€​

Admittedly, in the present case, the public servant has not lodged any complaint before the jurisdictional Magistrate in writing as contemplated

under Section 195 of Cr.P.C. being mandatory and there being non-compliance, the Magistrate has committed illegality in taking cognizance of the

offences i.e., without the complaint being made to him in writing by the public servant concerned.

This Court in identical circumstances in the case of Sri Manikanta vs. The State of Karnataka and Others in W.P.No.23611/2015 dated

16.06.2015, wherein also the police have registered a case in Crime No.167/2014 for the offences punishable under Sections 78 and 79 of the

Karnataka Police Act and also under Section 188 of IPC. This Court has come to the conclusion that the registration of case under Section 188 of

IPC becomes illegal as bar contained under Section 195 of Cr.P.C. held that the remaining provision under Sections 78 and 79 of the Karnataka Police

Act could not have been investigated by the police without a valid permission from the jurisdictional Magistrate under Section 155(2) of Cr.P.C.

Therefore, this Court has quashed the proceedings.

Admittedly, in the present case, the public servant has not lodged complaint in writing and no permission was obtained from the jurisdictional

Magistrate by the police as contemplated under Section 155(2) of Cr.P.C. and the public servant has not filed any private complaint as contemplated

under Section 200 of Cr.P.C. to initiate proceeding under Sections 171-H and 188 of IPC. Therefore, the initiation of proceeding made by the

jurisdictional police and subsequently cognizance taken by the Magistrate is contrary to the provisions stated supra. The petitioner has made out

exceptional circumstances to quash the proceedings as prayed for.

In view of the aforesaid reasons, the criminal petition is allowed. The entire proceedings in C.C.No.28/2015 arising out of Crime No.76/2013

pending the file of the Additional Senior Civil Judge and JMFC-I, Raichur for the offences punishable under Sections 171-H and 188 of IPC are

hereby quashed.

 Ordered accordingly.