Nabisab and Ors. vs. The State of Karnataka (07.04.2017 – KARHC): MANU/KA/1351/2017
| Citation | MANU/KA/1351/2017 |
| Date of Judgment | 7th April 2017 |
| Court | High Court of Karnataka |
| Case Type | Criminal Petition Nos. 3365/2016 |
| Appellant | Nabisab and ors |
| Respondent | The state of Karnataka |
| Bench | Budihal R.B., J. |
| Referred | Section –78(3) of Karnataka Police Act, 482 of CrPC |
FACTS OF THE CASE
Section 155(1) of CrPC states that when the officer (the one in charge of the police station) gets the information of a non-cognizable offense that is within the jurisdiction of that station, he shall enter the cause in a dairy which is provided by the state government to keep all the record and refer the information to the magistrate. Also in this section, the word “shall enter” bind the officer to enter the information and present it before the magistrate.
There is a total of 16 such FIR registered under section 78(3) of the Karnataka Act, and section 429 of IPC, out of 16 cases in 5 cases the investigation has been completed, and the charge sheet was filed as well as all five offenses filed under only section 78(3) of Karnataka Act and section 420 of IPC later dropped out. In the other 11 cases, the investigation is still going but in these 5 cases, no complaint or even the public came forward as a witness that they have been cheated by the petitioners.
Under section 78(3) of the Karnataka Act, which states that any person found gambling (which is listed in a subsection of 1) in a public place or access to any public shall be convicted to imprisonment of up to 3 months or up to three hundred rupees or may both.
Now, as per the prosecution, it was said that police received secret information about the offense, so they immediately left and reached that place, they seized some ball pens, matka chits, a few mobile phones, also some witnesses, and also some of the accused person. Then they return to the police station, obtain a complaint and register the FIR.
ISSUES
- Whether the offenses raised in this case are cognizable or non-cognizable?
- What is the importance of timing filing the FIR?
- In this case is there a compliance of the mandatory requirement of sections 155 and 114 of CrPC?
ARGUMENTS
On the behalf of petitioner side, the learned counsel shri U.M Sheelevant, Sri Chandrashekhar Patil, Sri M.H.Patil, Sri Shivaraj Hiremath, and Sri M. Amaregovda are-
- 78(3) of the Karnataka Act, 1963 is a non-cognizable offense, even the charge sheet registered against the petitioner alleged this offense but required under section 155(2) of CrPC before proceeding to an investigation they should take prior permission before the magistrate which is not done in this case.
- There is no compliance with section 155(1) of the CrPC also notice that the information received by the police was not entered in the diary which is kept in the police station.
- The offense of deceiving the public is under 420 of the IPC which is a cognizable offense and the mandatory requirement of cognizable offense mentioned in section 154(1) of CrPC is also not complied with.
- Further, learned councils argue that under section 78(3) it is mandatory for an accused to be found at the place where the raid was conducted, and if the accused is not found in the location cannot invoke said section.
- The case is not maintainable as registration of the very case itself against the mandatory provision.
- The additional claim made by learned councils that the police issued a circular and only sustained to that circular different police station, even though no such offence has occurred the police did the proceeding and booked the case against the petitioner.
- In Crl. P, 100504/2016 learned councils contended that even though the mandatory permission mentioned under section 155(2) of CrPC has been obtained, still the case is not maintainable because my client (petitioner) was not present at the place where the raid was conducted.
- In Crl. P, 100328/2017 and 100356/207 additional claim by the learned counsel that the police were “permitted” the permitted is not sufficient to the end decision that there is a compliance of mandatory requirement.
Counsel appearing on behalf of respondent learned HCGP argues that the object of section 482 of CrPC, is the prosecution should not be false against the accused and the court also must focus on the object of said section.
He further argues that there have been many cases where the police granted prior permission from the concerned magistrate, then investigated the matter, and then filed a charge sheet.
During his argument, he relied on these judgments
- Lalita Kumari vs. Government of Uttar Pradesh and others
- Rajiv Thapar and Ors. vs. Madan Lal Kapoor
- State of Haryana and others vs. Bhajan Lal and others
- Parkash Singh Badal and another vs. State of Punjab and others
& many others cases filed along with memo.
Not agreeing with the petitioner’s counsel, that the proceeding are not maintainable, he argues that under CrPC and Karnataka Act, the police machinery have a statutory right, it cannot be lightly held that they have proceeded with the investigation without compliance with the mandatory requirement, relied upon the section 482 of CrPC, he said it cannot be invoked in this case and also proceeding cannot be quashed.
JUDGEMENT
After hearing both sides, the court held that in section 155(1) of CrPC, police must be entered in the diary before proceeding to the spot at the first instance, as there is no such material and evidence found that the court to believe that they had the information before proceeded to the spot.
The court while announcing the judgment refer to the case of Lalita Kumari vs the Government of Uttar Pradesh and others, in this case, the judge observed and stated the importance of entering the diaries’ timing. In this case, the judge also observed that there is the mandatory registration of FIR after the receptor discloses the information which is a cognizable offense in general rule.
Now coming to the case at hand, the court observed that as per the general rule and this case even if the case is cognizable in nature and the offense is under section 420 of IPC, the police should have to register the same and maintain the dairies, which police failed to do so.
Also, the prosecution failed to show the evidence and requirement under section 154(1) of CrPC and there is no compliance as well.
The court observed that even though the offense is non-cognizable in nature under section 78(3) of the Karnataka Act, there is a mandatory provision mentioned under section 155(1) which states that information shall be entered in the register immediately but in this case, the police failed to comply with these provisions.
And in the case of 5 out of 16, the court said that as no witness came forward and observed the material fact at hand, it was decided that police suo motu registered the case and that shows the intention that they wanted to overcome the prior permission from the magistrate in the said offense.
Now, the court quashed all the above FIR and chargesheet, the petitioner is also allowed and free from the criminal charges mentioned above under the jurisdiction of section 482 of IPC.
REFERENCES
*Nabisab_and_Ors_vs_The_State_of_Karnataka_07042017KA201728061716422687COM505017.pdf
This Article is written by Nikhil Yadav of Dr. B.R. Ambedkar National Law University, Intern at Legal Vidhiya.
