Failure to obtain permission from the jurisdictional Magistrate as required under Section 155(2) of Cr.P.C. can lead to the quashing of proceedings for non-cognizable offences.

JUDGMENT

1. The petitioner is before this Court seeking for quashing of the order dated 16.10.2010 passed by the Principal Civil Judge & JMFC Gangavathi in C.C.No.2213/2018 against the petitioner for the offences punishable under Section 78(3) of Karnataka Police Act, in Crime No.282/2018 (C.C.No.2213/2018) registered by the Town Police Station Gangavathi, District Koppal, which are non-cognizable in nature.

2. The case of the prosecution is that the Police Sub-Inspector, Town P.S. Gangavathi had registered a suo moto complaint as against the petitioner and other alleging that on 16.10.2010 at about 5.00 p.m., he received credible information that near Islampur Masjed at public place some persons were indulged in playing Matka. Based on the said information, he conducted a raid along with staff and panch witness and arrested some persons as also seized some articles which were used for the purpose of plying the said Matka and thereafter registered a case under Section 78(3) of K.P.Act.

3. The Police without obtaining the prior permission of the jurisdictional Magistrate had gone ahead with the investigation and registered the above complaint against the petitioner.

4. Shri Anand.R.Kolli, learned counsel for the petitioner would contend that non obtaining permission by the Police from the jurisdictional Magistrate is fatal and it is mandatory for such permission to be obtained in terms of Section 155(2) of the Cr.P.C., hence it is required that this Court exercise its power under Section 482 of Cr.P.C. to quash the said proceedings.

5. Heard Shri Anand R.Kolli, learned counsel for the petitioner and the learned HCGP and perused the records.

6. The question that would arise for determination is that in the present facts and circumstances of the case is the mandatory requirement contained under Section 155(2) for the purpose of initiating investigation and the consequent steps to be taken thereon, has been obtained.

7. A perusal of Sections 155(1) and (2) of Cr.P.C. would indicate that whenever there is a non cognizable offence, which is to be investigated, it is the duty of the concerned Police Officer to enter the details of the same in the Station House Diary, and send the information to the concerned Magistrate under Section 155(1) of the Cr.P.C. and in terms of Section 155(2) of the Cr.P.C. permission has to be obtained from the jurisdictional Magistrate to initiate the investigation therein and or the proceedings against the accused therein.

8. A perusal of the record available would indicate that no such permission from the jurisdictional Magistrate has been obtained. Therefore, there being a substantive violation of the mandatory procedural law. The proceedings cannot be continued against the petitioner herein.

9. In view of the above, I pass the following:

ORDER

(i) The petition is allowed;

(ii) The proceedings initiated before the Principal Civil Judge and JMFC Gangavathi in C.C.No.2213/2018 against the petitioner for the offences punishable under Section 78(3) of Karnataka Police Act, in Crime No.282/2018 (C.C.No.2213/2018) registered by the Town Police Station Gangavathi, District Koppal, are hereby quashed;

(iii) Liberty is however reserved to the jurisdictional police to obtain necessary permission from the jurisdictional Magistrate and initiate the investigation as regards the petitioner.

In terms of the above direction, the petition is disposed of.