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Judgment
PER:HON'BLE MR. JUSTICE VENKATESH NAIK T
Heard Sri.Rakesh S.Hattikatagi, learned counsel for the petitioners and Sri.Praveena Y.Devareddiyavara, learned High Court Government Pleader for respondent-State.
The petitioners/accused Nos.1 and 2 have filed this petition under Section 528 of BNSS (Section 482 Cr.P.C) seeking to quash the entire proceedings initiated against them in C.C.No.1999/2025, pending on the file of learned II Additional Civil Judge and JMFC, Sirsi arising out of Banavasi Police Station crime No.101/2025, registered for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963 (“K.P.Act” for short).
The brief facts of the case of prosecution are as under:
On 22.09.2025 at 11:10 a.m., the de facto complainant received a credible information about playing of O.C Matka being taken place on public road at Janta Colony, Soraba road, Banavasi. Hence, the de facto complainant secured his sub-staff and panchas and proceeded to conduct a raid. The de facto complainant, along with his sub-staff and panchas, reached the said spot and found that accused No.1 was stating that he would pay a sum of Rs.80/- for Rs.1/-, thus, the de facto complainant conducted the raid and seized a sum of Rs.540/- in cash, a ball pen and a Matka chit under a seizure panchanama. Thereafter, the Investigating Officer conducted the investigation and filed the charge sheet. Taking exception to the same, the petitioners/accused Nos.1 and 2 have filed this petition seeking to quash the entire proceedings.
Learned counsel for the petitioners vehemently contended that the petitioners have been falsely implicated in the case and they have not committed any offence. Further, the mandatory provisions under Section 155(1) and (2) of Cr.P.C. have not been complied with. It is contended that the information was received on 22.09.2025 at 11:10 a.m. and the raid was conducted at 11:15 a.m. The requisition seeking permission was submitted to the learned Magistrate on 22.09.2025 at 07:45 p.m. and the FIR was registered on 22.09.2025 at 08:15 p.m. Hence, the Investigating Officer conducted the investigation without compliance of the statutory provisions under Section 155 of Cr.P.C. Thus, the very act of the respondent-Police apparently reveals that they have not complied with the mandatory provisions. Accordingly, learned counsel for the petitioner prayed to allow the petition.
Per contra, learned HCGP vehemently contended that the Investigating Officer has complied with the statutory provisions and filed the charge sheet against the petitioners. It is contended that the petitioners are involved in the offences alleged against them. Therefore, the proceedings cannot be quashed.
It is not in dispute that an offence punishable under Section 78(3) of the Act is a non-cognizable offence. When the report is received by the Station House Officer of the Police Station in respect of commission of non-cognizable offence, the Station House Officer has to follow the mandatory procedure prescribed under Section 155(1) and 155(2) of Cr.P.C.
Section 155(1) and (2) of Cr.P.C. reads as under:
“155. Information as to non-cognisable
cases and investigation of such cases.
(1)When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognisable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2)No police officer shall investigate a non-cognisable case without the order of a Magistrate having power to try such case or commit the case for trial.”
In view of the aforesaid proposition of law, it is the duty of the Police Officer to enter the substance of the information in the prescribed book and to refer the informant to the Magistrate under Section 155(1) of Cr.P.C., and thereafter, the jurisdictional Magistrate is required to pass an order permitting the Police Officer to investigate the case as required under Section 155(2) of Cr.P.C. Therefore, unless the Police Officer is permitted by the Magistrate in an order to investigate a non-cognizable offence, the Police Officer does not get jurisdiction to investigate the matter and file a final report or charge-sheet.
This Court in the case of VAGGEPPA GURULINGA JANGALIGI V. STATE OF KARNATAKA, reported in ILR 2020 KAR 630, considering non-compliance of mandatory provisions of Section 155(1) and (2) of Cr.P.C., has held as under:
“20.Therefore, under Rule 1, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the Police Officer or the Police Officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155(1) and (2) of Cr.P.C., and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rules of Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.
i)The Jurisdictional Magistrates shall stop hereafter making endorsement as ‘permitted’ on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155(2) of Cr.P.C.
ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.
iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the informant to him with such requisition.
iv) The Jurisdictional Magistrate should examine the contents of the requisition with his/her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he/she shall reject the prayer made in the requisition. Only after his/her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he/she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.
v)In case the Magistrate passes the orders permitting the investigation, he/she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than informant or the complainant.”
In view of the mandatory requirements stated in Section 155(1) and (2) of Cr.P.C. and the ratio laid down in the decision cited supra, the Station House Officer of the Police Station has no authority unless the jurisdictional Magistrate permits him for investigation of non-cognizable offence.
The Co-ordinate Bench of this Court in Crl.P.No.4090/2023 disposed of on 16.08.2023 at paragraph Nos.7 & 8 are held as follows:
"7.The coordinate Bench of this Court in Cri.P. No.2929/2021 at para-12 has held as follows:
"12.One of the petitioners is bookie said to have involved in betting. Sri Hashmath Pasha has relied upon a judgment of the Supreme Court in Board of Control for Cricket vs Cricket Association of Bihar and others (2016 (8) SCC 535) where it is observed that betting is to be legalized. It was argued by the respondent that betting amounts to gaming which is an offence under the Karnataka Police Act. If Section 2(7) of the Karnataka Police Act is seen, its explanation very clearly says that game of chance does not include any athletic game or sport. Cricket is a sport and therefore even if betting takes place, it cannot be brought within the ambit of definition of 'gaming' found in Karnataka Police Act."
8.Admittedly, the accused No.4 is alleged to have been found betting on the cricket match, and the coordinate Bench of this Court has held that cricket is a sport, and therefore even if betting takes place, it cannot be brought within the ambit of definition of gaming found in Karnataka Police Act. Hence, in the absence of essential elements so as to constitute the commission of offence punishable under Section 78(ii) of the Karnataka Police Act, the registration of FIR for the aforesaid offence stands vitiated. Hence, the continuation of criminal investigation will be an abuse of process of law”.
Further, this Court in Crl.P.No.102334/2024 disposed of on 26.07.2024, citing the judgment of the Co-ordinate Bench of this Court passed in Crl.P.No.4090/2023 disposed of on 16.08.2023.
In light of the order passed by the Co-ordinate Bench of this Court, the proceedings initiated against the petitioners/accused Nos.1 and 2 cannot be sustained. Accordingly, I proceeds to pass the following:
ORDER
The criminal petition is hereby allowed.
The proceedings initiated against the petitioners/accused Nos.1 and 2 in C.C.No.1999/2025, pending on the file of learned II Additional Civil Judge and JMFC, Sirsi arising out of Banavasi Police Station crime No.101/2025, registered for the offence punishable under Section 78(3) of the Karnataka Police Act, 1963, are hereby quashed.
In view of the disposal of the main petition, pending I.A’s, if any, stand disposed of.