ORDER

The petitioner is before this Court calling in question proceedings in C.C.No.1075 of 2019 pending before the II Additional Civil Judge and JMFC at Harihara arising out of crime No.99 of 2019 registered for offences punishable under Section 78 (3) of the Karnataka Police Act, 1963 (‘the Act’ for short).

2. Heard Sri D.S. Shivananda, learned counsel appearing for the petitioner and Sri Mahesh Shetty, learned High Court Government Pleader appearing for the respondent.

3. Facts, in brief, germane are as follows:-

On 15-07-2019 at about 1.45 p.m. credible information was received that some persons were collecting money from public for Matka at Hindisaghatta Village, Harihara Taluk within the jurisdiction of Malebennur Police Station. Based on the said information, a crime comes to be registered in Crime No.99 of 2019. Thereafter, on the said premise, a raid was conducted on the accused and a sum of Rs.920/- was recovered in cash. Several Matka chits and a pen were also confiscated. On the said basis, the respondent/Station House Officer communicates to the jurisdictional Magistrate seeking his permission to register a FIR. The learned Magistrate grants permission to register the FIR on a communication made by the Station House officer by endorsing “Perused and registration permitted”. Based upon the permission so granted by the learned Magistrate, the Police investigate into the issue, found the petitioner guilty of the offence and filed a charge sheet for the offences punishable under Section 78(3) of the Act. It is filing of the charge sheet by the Investigating Officer on 16-07-2019 is what drives the petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner submits that the learned Magistrate has not applied his mind while granting permission by the words “Perused and registration permitted” which is contrary to the law laid down by this Court in plethora of cases. It is his further submission that without registration of crime spot mahazar and seizure were conducted which are impermissible in law. Since the offence alleged is non-cognizable without the permission from the learned Magistrate, the crime could not have been registered and further proceedings could not have been taken up. Even if permission is granted, such permission should be with the application of mind.

5. On the other hand, the learned High Court Government Pleader would submit that the charge sheet is already filed. If the charge sheet is already filed, there is no warrant to go back in time and consider whether the permission granted by the learned Magistrate is valid or otherwise. He would submit that if the submission of the petitioner is accepted, all the accused will get away from imposition of penalty under the Act. He would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The issue lies in a narrow compass, as the afore-narrated facts are not in dispute. What requires consideration is the permission that is granted by the learned Magistrate to register the crime. The Station House Officer after conduct of a search on 15-07-2019 communicates to the learned Magistrate seeking permission to register a FIR. Such permission is necessary as the offence under Section 78(3) is non-cognizable and for a non- cognizable offence permission of a learned Magistrate under Section 155 of the CrPC is imperative. Section 78(3) of the Act reads as follows:-

“78. Opening, etc., of certain forms of gaming.—

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(3) Whoever is found gaming on any of the objects specified in sub-section (1) in any public street or thoroughfare or in any place to which the public have or are permitted to have access shall, on conviction be punished with imprisonment which may extend to three months or with fine which may extend to three hundred rupees, or with both.”

Section 155 of the CrPC reads as follows:-

“155. Informat