The magistrate's permission to register a case must be in accordance with law and the ingredients of the offence must be attracted against the accused person.

This petition is filed by the petitioner accused No.3

under section 482 of Cr.P.C for quashing the criminal

proceedings against the petitioner in Crl.No.105/2015

(CC.No.230/2017) pending on the file of the Senior Civil

Judge

and

CJM,

Chamarajanagar

for

the

offences

punishable under Section 353 read with Section 149 of the

Indian Penal Code, 1860 (for short 'IPC') and 186 of IPC

and under Section 2 of Prevention of Insults to National

Honour Act, 1964.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent No.1-State and learned counsel for

respondent No.2.

3

3. The case of the prosecution is that on the

complaint of respondent No.2 one Mahadevu S.M., the

Tahsildar of Chamarajanagar filed a written complaint to

the police alleging that on 15.08.2016 after hoisting the

National Flag when the Minister for Chamarajanagar

District (incharge) in charge was addressing the gathering

at that time a group of accused persons along with this

petitioner rushed towards the dias showing black flag and

obstructed the smooth functioning of the flag hoisting

ceremony and thereby disrespected the National Flag.

After receiving the complaint the police sent the requisition

to magistrate under Section 155 (2) of Cr.P.C and the

magistrate permitted the police to registered the case as

the offence is under the non cognizable offence and then

after registering the case, the police filed charge sheet for

the offence punishable under Section 353 read with

Section

149

of

IPC,

in

Crime

No.105/2015

(CC.No.230/2017)

pending

on

the

file

of

Chamarajanagara Town Police, Chamarajanagara and the

same is challenged before this Court.

4

4. The learned counsel for the petitioner contended

that the co-accused persons had already filed similar

petition in Crl.P.No.8174/2020 which came to be a allowed

and all the accused persons except this petitioner have

been obtained the order of quashing in their favour and

the investigating officer did not follow the proper

procedure for registering the case. The magistrate

without application of mind endorsed the requisition as

"Permitted" which cannot be considered as permission in

accordance with law. Therefore, it is violation of provision

of section 155 (2) of Cr.P.C. Hence prayed for allowing

this petition.

5. The learned HCGP though objected but fairly

admits that the magistrate has not applied mind and

endorsed only as "Permitted" not giving proper reason for

allowing the police to register the case in a cognizable

offence against the petitioner and others

6. Heard the arguments and perused the records,

admittedly the magistrate upon receipt of the report from

5

the

police

made

an

endorsement

as

permitted.

Investigating officer obtained the permission seeking to

register the case and file the report but the magistrate

without application of mind made an endorsement on

15.08.2015 stating that "Permitted". Considering the

judgment of co-ordinate bench of this Court in the case of

BP Prasad Vs state of Karnataka and another in

Crl.P.No.426/2019 dated 17.09.2019 and in another case

Moin Basha Kurnooli vs The State Of Karnataka in

Crl.P.No.100319/2014 C/W Crl.P.No.100326/2014, dated

25.07.2014

this

Court

had

quashed

the

criminal

proceedings against the other accused persons that is

accused Nos.1, 2, 4 to 11, on the ground the permission

accorded by the magistrate is not in accordance with law

and against the principles laid down by this Court. The

permission is not in accordance with the Section 155

Cr.P.C. The ingredients of Section 353 is not at all

attracted against the accused person. The police dropped

the offences under Section 186 of Indian Penal Code and

Section 2 of Prevention of Insults to National Honour Act,

6

1964. Therefore, accused No.3 having similar allegation

against him and the co-accused were already benefited the

order in their favour for quashing the proceedings and

therefore this petitioner is also entitled for quashing