Mandatory prior permission from a Magistrate is crucial before registering FIRs for non-cognizable offences to ensure jurisdictional validity and protect individual rights.

ORAL ORDER

The captioned petition is by the accused seeking quashing of the FIR in Crime No.81/2023 and consequent charge sheet filed in C.C.No.20160/2023 for the offence punishable under Sections 14 and 34 of the Karnataka Excise Act , 1965.

2. The facts leading to the case are as under:

Respondent No.2 lodged a complaint before respondent No.1 on 10.04.2023, alleging that during the Assembly Election Code of Conduct, while he was deputed for election duty near the Muddina Palya SST vehicle- checking point, at about 8.00 p.m., a Maruti Vitara Brezza bearing registration No.KA-52-M-7376 approached from the side of Deepa Complex. Respondent No.2 stopped the vehicle and, on inspection, found five bottles of Silver Cup Brandy (750 ml each). On being questioned, the accused was unable to produce any permit or authorization for possession of the said liquor. Consequently, respondent No.2 secured independent panch witnesses, conducted a search of the vehicle, and seized the liquor. He thereafter submitted a written complaint to respondent No.1/police, leading to registration of NCR No.94/2023. Upon registration of the NCR, respondent No.1 approached the jurisdictional Magistrate seeking permission and thereafter registered an FIR dated 11.04.2023 for the offence punishable under Section 98 of the Karnataka Police Act , 1963.

3. After completing the investigation, the Investigating Officer laid a charge sheet. The present petition is filed by the accused challenging the very initiation of criminal proceedings, contending that the FIR was registered in respect of a non-cognizable offence without obtaining prior and valid permission from the jurisdictional Magistrate. Reliance is placed on the judgments of a Coordinate Bench reported in (2018) 1 AKR 776 and ILR 2021 Kar 1545 .

4. Learned counsel for the petitioner, reiterating the grounds urged in the petition, submits that the question is no longer res integra, inasmuch as this Court has consistently held that FIRs registered in respect of non-cognizable offences, without securing the Magistrate’s permission as mandated under law, are unsustainable and liable to be quashed.

5. Per contra, the learned High Court Government Pleader, supporting the prosecution, places reliance on the order sheet maintained in Crime No.81/2023, to contend that the requisite permission of the jurisdictional Magistrate had, in fact, been obtained before registration of the FIR, and therefore, the filing of the charge sheet is justified.

6. The primary allegations levelled against the accused, even if accepted at their face value, would disclose the commission of offences punishable under Sections 14 and 34 of the Karnataka Excise Act , 1965. Upon receipt of the complaint from respondent No.2, the jurisdictional Police Officer, without following the mandatory procedure contemplated under law, proceeded to register an FIR straightaway. Only thereafter was permission sought from the jurisdictional Magistrate to investigate the matter.

7. At this juncture, it is apposite to refer to Section 155 (3) of the Code of Criminal Procedure , 1973, which stipulates that in the case of a non-cognizable offence, the police may investigate the same only “under the order of a Magistrate having power to try such case or commit the case for trial.” The requirement of obtaining prior permission from the Magistrate is not a mere formality but a mandatory safeguard built into the statute to protect individuals from unwarranted prosecution in non-cognizable cases. The provision cannot be diluted or treated as a mere directive to be complied with at a later stage.

8. In the present case,