ISMAIL SHAFI @ SHAFI BELLARI vs THE STATE OF KARNATAKA

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

The police after investigation submitted the

charge sheet for the offence punishable under

Senction 143, 147, 341, 268, 290, 186 and 149 of IPC

alleging that the petitioner-accused having taken

permission to take out procession, however, in

violation of the condition took out the procession and

caused public nuisance.

Learned Magistrate after accepting the

charge sheet for the aforesaid offences issued

petitioners-accused are before this Court.

Learned counsel for the petitioners submits

that the cognizance can be taken by the learned

Magistrate for the offence punishable under Section

186 only on a complaint in writing by the officer

concerned as specified under Section 195 of Cr.P.C.

Hence he submits that the cognizance taken by the

learned Magistrate on the basis of final report

submitted by the respondent-police is impermissible.

In support of his contention, he places reliance on the

decision of the Co-ordinate Bench of this Court in

WP.No.13328/2018 disposed of on 18.06.2021.

On the other hand learned High Court

Government Pleader appearing for the respondent-

State submits that the petitioner by violating the

conditions imposed in the permission granted for

taking out procession have caused public nuisance.

Hence, the police after investigation have rightly filed

the charge sheet and the same does not warrant any

interference.

I have examined the submissions made by

the learned counsel for the parties.

Section 195(1)A of Cr.P.C specifies that

learned Magistrate can take cognizance of the offence

punishable under Section 188 of IPC only on a

complaint in writing of the public servant concerned.

However, the learned Magistrate in the present case

has taken cognizance of the offence punishable under

Section 186 of IPC on the basis of the final report

submitted by the police under Section 173 of Cr.P.C.

and same is one without authority of law.

The next question arises for consideration

is that whether the cognizance taken is vitiated insofar

it relates to the offence punishable under Section 188

of IPC or the cognizance taken for the other offences

punishable under the provisions of IPC. The Hon9ble

KARNATAKA

HEMAREDDY

VEMAREDDY AND ANOTHER reported in (1981) 2

SCC 185 at paragraph-8 has held follows:

"8. We agree with the view expressed by

the learned Judge and hold that in cases

where in the course of the same transaction

an offence for which no complaint by a court

is necessary under Section 195(1)(b) of the

Code of Criminal Procedure and an offence for

which a complaint of a court is necessary

under that sub-section, are committed, it is

not possible to split up and hold that the

prosecution of the accused for the offences

not mentioned in Section 195(1)(b) of the

Code of Criminal Procedure should be upheld."

A reading of the above judgment makes it clear

that if the offences form a part of same transaction of

the offences contemplated under Section 195 of

Cr.P.C. then it is not possible to split up and hold the

prosecution of the accused for the offences not

mentioned in Section 195(1)(b) should be upheld.

Therefore, the cognizance taken by the learned

Magistrate for the aforesaid offences also is vitiated.

Accordingly, I pass the following:

Criminal petition is allowed.

C.C.No.23/2018 pending on the file of JMFC-II Court,

Mangaluru is hereby quashed.

2022 Supreme(Online)(Kar) 54666

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