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Judgment
A.N. Venugopal Gowda, J.
These petitions were filed seeking quashing of the cases registered in various Police Station/s and also the charge sheet/s submitted in some of the cases by various Police Station/s in the State of Karnataka, alleging commission of offence by the petitioners, punishable under Ss.79 and 80 of Karnataka Police Act, 1963 (for short ''the Act''). Since the legal issue which arises for consideration is common, with the consent of learned advocates appearing on both sides, these petitions are taken up together for hearing. Since question of law urged for consideration is common, these petitions are being disposed of by this common order.
The respondent/Police having registered case/s against the petitioners, criminal cases for the offences punishable under Ss.79 and 80 of the Act and in some cases, charge sheet/s having been submitted, cognizance was taken and summons having been issued, the individual petitioners having appeared and got enlarged on bail, filed these petitions assailing the registration of criminal case/s, investigation done and the charge sheet/s filed as well as the taking of cognizance by the Magistrate/s, as ab-initio void.
Learned advocates appearing for the petitioners contended that these petitions being identical in all the material aspects to Criminal Petition No. 100319/2014 and connected cases, which were decided on 25.07.2014, are liable to be allowed accordingly and the impugned proceedings herein quashed. Learned advocates submitted that this Court having considered various legal aspects and having allowed the identical criminal petitions and quashed the impugned proceedings therein, these petitions being fully covered by the said common order, the petitioners are entitled to the relief.
Sri B.T. Venkatesh, learned SPP, on the other hand, contended that certain aspects having not been urged for consideration and decided in the common order dated 25.07.2014 passed in Crl.P. No. 100319/2014 and connected cases, it is not open to the petitioners to contend that these cases are covered by the aforesaid order. Learned HCGP sought dismissal of the petitions.
42 Criminal Petitions were clubbed together along with Crl.P. No. 100319/2014 and were taken up together for consideration and decision, on the ground that they can be conveniently disposed of, since identical questions of law were raised.
Various Police Stations in the State, on receipt of credible information on different date/s, that some people were indulged in playing ''Matka'' at several places situated within the jurisdiction of their respective Police Station/s, conducted raids and arrested the accused persons and seized some articles allegedly used for the purpose of playing the game of ''Matka'' and registered case/s, specifically under S.78(3) of the Act. Upon investigation, police having submitted the charge sheet/s, alleging commission of offence under S.78(3) of the Act, aforesaid criminal petitions were filed before the Dharwad Bench, under S. 482 of Cr.P.C., to quash the entire proceedings therein.
With reference to the rival contentions, the points raised for adjudication read as follows:
"POINT No. 1:
Whether Sec.78(3) of the K.P. Act, is a cognizable offence or non cognizable offence, in view of the power of arrest without a warrant provided under section 88 of the said Act.?
POINT No. 2.
Whether in this case, investigation of the cases under section 78(3) of the K.P. Act and all further proceedings before the court are vitiated by incurable illegalities or defects for want of permission to investigate the case by the competent Magistrate u/s. 155(2) of the Cr.P.C.?
POINT No. 3
Whether the reports (Charge Sheets) of the Police Officers with regard to non cognizable offences in the above cases, can be treated as complaints under section 2(d) of the Cr.P.C. If so, under what circumstances?"
7(a). The offence under the Act being a minor offence punishable with imprisonment for 3 months or with fine, Point No. 1 was answered as follows:
"43. As could be seen from the Police Act, the offences are minor offences. Particularly Sec.78(3) of the KP Act is a minor offence which is punishable with imprisonment for three months or with fine. The said Sec.78(3) of the KP Act disclose that the offences being committed or expected to be committed on a public street, thorough fare or in a place to which the public have, or permitted to have access. Perhaps that may be the reason, immediately after receipt of the credible information by the time if the Police Officers have to rush to the Jurisdictional Magistrate or competent person to obtain warrant and then proceed to the place of incident for arresting or seizing the article, by the time they reach the place, the accused or the persons who have committed are reasonably expected of having been committed the offence may escape from the said place. Therefore, under such circumstances, a swift and quick action by the Police is required to prevent the offence being committed, or to take immediate action about the offence being committed by the accused persons, they have to rush to the spot and take immediate action. Therefore, that may be reason, under the Police Act especially the police are empowered to arrest a person without warrant, that does not mean to say, the power of arrest given to the police under peculiar circumstances as noted above can convert a non-cognizable offence into a cognizable offence so as to obviate the other procedural mandates of the law. Therefore, agreeing with the above said rulings of the Hon''ble High Court of Delhi, Calcutta and Andhra Pradesh, I hold that the power of arrest u/s.88 of the K.P. Act is only a power of arrest given to the police under peculiar circumstances and u/s.78(3) of the Act under special circumstances, and the said power of arrest is not a general power of arrest so as to draw an inference that the Police Officer is authorized to arrest a person in any other law for the time being in force as contemplated u/s.2(c) of the code in order to bring Sec.78(3) of the KP Act under the category of cognizable offences. Therefore, the offence u/s.78(3) of the KP Act shall be categorized as a non-cognizable offence as per the II Schedule of Cr.P.C."
(emphasis supplied)
7(b). With regard to Point No. 2, extracted supra, after detailed discussion at paras 44 to 51, it was held that the entire investigation and the cognizance taken and all further proceedings in the case/s, as being vitiated by incurable defects and illegality.
7(c). With regard to Point No. 3, relating to the reports submitted by the police after investigation, whether the same can be treated as a complaint, under S.2(d) of Cr.P.C., defining the word ''complaint'' and relying on a decision in the case of NARAIN SINGH Vs. STATE OF DELHI, rendered by the Delhi High Court, after detailed discussion at para Nos. 53 to 56, it was held that in the absence of explanation with regard to Police Officer having proceeded to investigate the matter under an impression that there may be commission of cognizable or non-cognizable offence, explanation to S.2(d) of Cr.P.C., being not applicable, it was held that the cognizance taken by the learned Magistrate/s is hit by S.155(2) of Cr.P.C. and therefore, the same cannot be treated as a complaint under S.2(d) of the Cr.P.C.
7(d). Noticing that the illegality is explicit on the face of the record/s and there being no legal impediment to exercise the powers under S.482 of Cr.P.C., in order to prevent the abuse of process of Court and to secure the ends of justice, the petitions were allowed and the impugned proceedings relating to the respective criminal petitions were quashed.
Learned HCGP, though contended that all aspects of the matter have not been considered in the common order dated 25.07.2014 passed in Crl.P. No. 100319/2014 and connected cases, was unable to point any material aspect which needs consideration and decision afresh. In my view, these petitions raise the same questions as was considered and decided by this Court, in the aforesaid common order. Hence, following the said order, these petitions being identical are liable to be allowed.
In the result, these petitions are allowed and the proceedings of the following cases, which have been assailed in these petitions are hereby quashed;
Crime No. 449/2014 on the file of Prl. Civil Judge (Jr.Dn.) and JMFC Court, Chitradurga District.
Crime No. 106/2013 on the file of MMTC-IV, Bengaluru.
Crime No. 217/2013 on the file of I Addl. CMM Court, Mayohall, Bengaluru.
C.C. No. 1379/2013 on the file of MMTC-I, Mayohall, Bengaluru.
Crime No. 60/2014 on the file of 4th Civil Judge (Jr.Dn.) and JMFC Court, Mangaluru.
Crime No. 23/2014 on the file of Prl. Civil Judge (Sr.Dn.) and CJM Court, Sira, Tumakuru.
C.C. No. 1777/2011 on the file of Addl. Civil Judge (Jr.Dn.) &JMFC, Kundapura.
C.C. No. 3368/2011 on the file of Addl. Chief Judicial Magistrate, Bengaluru.
Crime No. 68/2013 on the file of I ACJ and JMFC at Mysuru.
C.C. No. 1226/2010 on the file of JMFC-II Court, Davanagere.
C.C. No. 1931/2013 on the file of JMFC-I Court, Davanagere.
C.C. No. 10395/2006 on the file of II Addl. CMM, Bengaluru.
Crime No. 289/2013 on the file of Prl. Civil Judge (Jr. Dn.) and JMFC Court, Tumkur.
Crime No. 188/2014 on the file of Prl. Civil Judge (Jr.Dn.) and JMFC, Bagepalli, Chikkaballapura District.
Crime No. 351/2014 on the file of Addl. Civil Judge and JMFC, Sagar.
Crime No. 212/2014 on the file of Addl. Civil Judge (Jr.Dn.) and JMFC, Periyapatna, Mysuru District.
C.C. No. 1867/2014 on the file of 4th Civil Judge (Jr.Dn.) and JMFC Court, Mangaluru.
C.C. No. 2918/2009 on the file of III MMTC, Bengaluru.
Crime No. 14/2014 on the file of Prl. Civil Judge (Jr.Dn.) and JMFC at Channarayapatna, Hassan District.