A Magistrate cannot legally take cognizance of an offence under Section 269 of IPC if the primary offence under Section 188 and related charges are not actionable.

ORDER :

1. In this petition, the petitioners seek the following reliefs:

“WHEREFORE, it is prayed that this Hon'ble Court be pleased to:

(i) Quash the order (date not forthcoming in the order sheet) taking cognizance of offence under Section 269 of the INDIAN PENAL CODE , 1860, against the Petitioners and the proceedings in C.C. No. 50077/2023 pending on the file of the Learned X Additional Chief Metropolitan Magistrate, Bangalore, produced herewith as ANNEXURE-B;

(ii) Pass such other orders/ directions as this Hon'ble Court may deem fit in the facts and circumstances of the case, in the interests of justice.”

2. Heard the learned Counsel for the petitioners and learned High Court Government Pleader for the respondent and perused the material on record.

3. A perusal of the material on record will indicate that in the first instance, pursuant to the complaint dated 07.02.2022 filed by the complainant, an FIR was registered in Crime No.32/2022 against the petitioners herein, i.e., accused Nos.1 to 3, 6, 7 and 9 and other accused persons for the offences punishable under Sections 188 and 269 of IPC and Section 51 (b) of Disaster Management Act, 2005. In pursuance to the same, the respondent-Police conducted investigation and filed a charge sheet before the learned Magistrate, who took cognizance only of the offence under Section 269 of IPC and not under Section 188 of IPC and Section 51 (a) of Disaster Management Act, in relation to which the cognizance was not taken by the learned Magistrate, which is pending in C.C.No.50077/2023. Aggrieved by the impugned proceedings against the petitioners for the alleged offence punishable under Section 269 of IPC , the petitioners are before this Court by way of the present writ petition.

4. In addition to reiterating the various contentions urged in the petition referring to the material on record, learned Counsel for the petitioners submits that the Trial Court having declined/refused to take cognizance for the primary offence punishable under Section 188 of IPC and Section 51 (b) of Disaster Management Act, it is impermissible in law to take cognizance in relation to the impugned offence punishable under Section 269 of IPC, especially during the COVID-19 period. It is also submitted that the material on record does not disclose necessary ingredients attracting offence punishable under Section 269 of IPC and consequently, the impugned proceedings deserve to be quashed. In support of her submissions, learned Counsel for the petitioners has placed reliance on the following judgments:

1. Rajashekharananda Swamiji and another v. State of Karnataka ,W.P. No. 13328/2018 dated 18.06.2021

2. Vishwesh Madane Vs. The State through Police Inspector, Tarikere Police Station , W.P. No. 5185 of 2021 dated 19.07.2021

3. D.K. Shivakumar Vs. State of Karnataka and Another , W.P. No. 3329/2023 dated 09.06.2023

5. Per contra, learned Counsel for the respondent submits that there is no merit in the petition and the same is liable to be dismissed.

6. A perusal of the material on record will undisputedly indicate that insofar as the primary offences punishable under Section 188 of IPC and Section 51 (b) of Disaster Management Act, the learned Magistrate declined to take cognizance for the aforesaid offences. As rightly contended by the learned counsel for the petitioners, so long as offence under Section 188 of IPC has been invoked, it is impermissible to split up the same from the remaining offences as held by this Court in the case of Sri Rajashekharananda Swamiji's case supra, which reads as under:

“Whether the proceedings in C.C.No.3660/2016 on the file of Judicial Magistrate First Class (III Court), Mangalore, Dakshina Kannada against the petitioners are sust