K Natarajan, J
1. This petition is filed by the petitioner/accused No.3 for quashing the criminal proceedings in CC No.4094/2023 arising out of Crime No.54/2023 of Chittapur Police Station, Kalaburagi district based on the PC No.4/2023 and charge sheeted for the offences punishable under Sections 188 read with Section 149 of IPC.
2. Heard learned counsel for the petitioner and learned High Court Government Pleader for the State.
3. The case of the prosecution is that the police said to have received the first information from Flying Squad of Assembly Election of Karnataka, where there was said to be a violation of Model Code of Conduct by the petitioner and others by assembling in a office, from about 10:00 p.m. on 18.04.2023 and till morning of 19.04.2023 and they said to have held the meeting of about 40 to 50 persons. Thereby, they have violated the Model Code of Conduct and committed the offence punishable under Section 188 read with 149 of IPC. The complainant came before the police and the police said to have instructed the defacto-complaint to file a private complaint before the learned Magistrate. Accordingly, the private complaint was lodged by the complainant on 19.04.2023 and the learned Magistrate passed an order holding that the offence alleged was non cognizable offence. Therefore, granted permission to investigate the matter under Section 155(2) of Cr.P.C. Subsequently, the police registered the FIR and filed the charge sheet, which is under challenge.
4. Learned counsel for the petitioner has contended that the name of the petitioner was not arrived as accused in the FIR and even otherwise, the police report is not sustainable for taking cognizance for the offences punishable under Section 188 of IPC. Therefore, the FIR and charge sheet is liable to be quashed.
5. Per contra, learned High Court Government Pleader objected the petition.
6. Having heard the arguments and perused the records, it is seen that the petitioner and others said to have violated the Model Code of Conduct on 18.04.2023 and 19.04.2023. Therefore, the complainant Karankumar FST officer filed a complaint before the police in respect of the violation of Model Code of Conduct, whereas the police refused to register the FIR and directed the complainant to approach the learned Magistrate for filing the private complaint as there was a bar for filing the police report under Section 195 of Cr.P.C. Hence, the police have rightly directed the flying squad to file the complaint before the learned Magistrate. Accordingly, learned Magistrate received the complaint, which is nothing but the complaint under Section 2(d) of Cr.P.C. Once, the complaint is registered as PCR, then, the learned Magistrate is required to consider that as a complaint filed under Section 200 of Cr.P.C.
7. As per Section 200 of Cr.P.C., if a private complaint is filed, learned magistrate, if found there is any offence is made out, he should take cognizance by posting the matter for recording the sworn statement of the complainant or if it is a public servant, recording sworn statement can be dispensed with. Then, the court can also record the statement of the witnesses on the complaint, if any and issue process. Thereafter, the complaint can be referred to the police for the purpose of registering the FIR for investigation and submitting the report under Section 202 of Cr.P.C. After receiving the report, if the learned Magistrate found no offence, then he shall pass the order by dismissing the complaint under Section 203 of Cr.P.C. or if, the offence is made out, then the learned Magistrate can issue the process by issuing summons to the accused under Section 204 of Cr.P.C. The said procedure has also been laid down by the Coordinate Bench of this Court in the case of Dr. Ravi Kumar v/s. Mrs. K.M.C. Vasantha and Another, reported in ILR 2018 KAR 1725. Based upon the same, this Court has also laid out the procedure in various cases as to how to deal with the private complaint filed before the learned Magistrate under Section 200 Cr.P.C. and to follow the procedure as per Sections 200 to 204 Cr.P.C.
8. Here in this case, the complaint has been filed before the learned Magistrate and learned Magistrate without taking cognizance ordered to register it as PCR. Once, it came under Section 200 Cr.P.C., then, the learned Magistrate is required to follow the procedure prescribed under Sections 200 to 204 Cr.P.C. But, a perusal of the impugned order, where the learned Magistrate has passed the order holding that the offence is non cognizable would go to show that learned Magistrate granted permission to the police to investigate the offence under Section 155 (2) of Cr.P.C. Learned Magistrate is confused in respect of 155(2) of Cr.P.C. and Sections 200 to 204 of Cr.P.C.
9. Under Section 195 of Cr.P.C., there is a bar for taking cognizance except on the complaint filed before the Magistrate. Such being the case, the very order of the learned Magistrate granting permission under Section 155(2) Cr.P.C. is abuse of process of law and liable to be quashed. Accordingly, the order for registering the FIR by granting permission under Section 155(2) to Cr.P.C. and filing charge sheet and taking cognizance once again after filing the charge sheet is violation of Section 195 of Cr.P.C. Therefore, the FIR and the charge sheet is liable to be quashed. Accordingly, I pass the following:
ORDER
i. Petition is allowed in part.
ii. Criminal proceedings in CC No.4094/2023 arising out of Crime No.54/2023 of Chittapur Police Station, Kalaburagi district based on the PC No.4/2023 and charge sheeted for the offences punishable under Sections 188 read with Section 149 of IPC is hereby quashed.
iii. However, the matter is remitted back to the learned Magistrate for considering the complaint, by following the procedure prescribed under Sections 200 to 204 of Cr.P.C.
iv. Pending I.A. does not survive for consideration. Hence, dismissed.
