Prosecution for an offence under Section 188 IPC requires a written complaint by the officer who issued the promulgation order or their superior under Section 195 CrPC; such authority cannot be delegated unless expressly provided for.

IN CRL.P.NO.7228/2023:

BETWEEN:

UMESH SHETTY

S/O VITTAL SHETTY,

AGED ABOUT 49 YEARS,

R/AT NO.1441, 2ND CROSS, 2ND STAGE,

CHANDRALAYOUT,

BANGALORE – 560 040.

(ADDRESS AS PER AADHAR)

…PETITIONER

(BY SRI. UDAY KUMAR M., ADVOCATE FOR SRI. NEHRU M N.,ADVOCATE)

AND:

STATE OF KARNATAKA

BY S.J.PARK POLICE STATION,

BANGALORE CITY – 560 001.

REPRESENTED BY STATE PUBLIC PROSECUTOR,

HIGH COURT OF KARNATAKA,

BANGALORE – 560 001.

…RESPONDENT

(BY SRI.B N JAGADEESH., ADDL. SPP)

THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.24636/2022 REGISTERING THE CASE AGAINST THE PETITIONER FOR THE ALLEGED OFFENCE P/U/S 188 OF IPC AND SECTION 103 OF KARNATAKA POLICE ACT PENDING ON THE FILE OF HON’BLE VI ADDL.C.M.M., BENGALURU BY ALLOWING THIS CRL.P U/S 482 OF CR.P.C.

IN W.P.NO.14239/2023:

BETWEEN:

SRI.CHAKRAVARTHY SULIBELE,

AGED ABOUT 44 YEARS,

S/O SRI.DEVIDAS SHET SULIBELI,

R/AT SULIBELE, BENGALURU RURAL – 562 129.

KARNATAKA.

…PETITIONER

(BY SRI.ARUNA SHYAM., SENIOR COUNSEL A/W SRI. SUYOG HERELE E., ADVOCATE)

AND:

THE STATE OF KARNATAKA,

BY SP PARK POLICE STATION,

REPRESENTED BY THE STATE PUBLIC PROSECUTOR,

HIGH COURT BUILDING, BENGALURU – 560 001.

…RESPONDENT

(BY SRI.B N JAGADEESH., ADDL. SPP)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF THE CR.P.C, 1973 PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE ORDER DATED 29.07.2022 AND THE ENTIRE PROCEEDDINGS INCLUDING THE COMPLAINT IN C.C.NO.24636/2022 INITIATED AGAINST THE PETITIONER FOR OFFENCES PUNISHABLE UNDER SECTIONS 188 OF IPC AND SECTION 103 OF THE KARNATAKA POLICE ACT, PENDING ON THE FILE OF THE VI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE IN THE INTEREST OF JUSTICE. (PRODUCED AS ANNEXURE-A AND B) IN SO FAR AS PETITIONER.

THIS CRIMINAL PETITION AND THIS WRIT PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The fact matrix of both these cases is substantially similar and they arise from the very same complaint as well wherein violation of the provisions of Section 188 of Indian Penal Code, 1860 has been alleged. Cognizance having been taken by the learned Judge of the Court below, process has been issued to the accused/petitioners. That is how they are before this court seeking quashment of the same.

2. Learned Sr. Advocate Mr.Aruna Shyam appearing for the petitioners submits that the cognizance of the offence could not have been taken by the court below, the private complaint filed u/s 200 of the Code of Criminal Procedure, 1973, for the subject offence itself being incompetent. In support of this, he banks upon of a Coordinate Bench decision in W.P.No.13328/2018 (GM-RES) between Sri. Rajashekharananda Swamiji and Another vs. State of Karnataka , disposed off on 18.6.2021. He further submits that the provisions of Section 195 of the Code of Criminal Procedure, 1973 having been held mandatory by the Apex Court in SALONI ARORA V. STATE (NCT OF DELHI), (2017) 3 SCC 286, the quashment has to be granted by this court.

3. Learned Addl. SPP appearing for the respondent opposes the petitions contending that there can be delegation of “power to complain” in terms of promulgated order in question, is bit difficult to countenance in the absence of such delegation being demonstrated from the text of the said order itself. Even otherwise, according to him, the arguable infirmity not going to root of the matter, no relief can be granted to the petitioners, as prayed for. So contending, he seeks dismissal of the petitions.

4. Having heard the learned counsel for the parties and having perused the Petition Papers, this court is inclined