1. These petitions are filed under Section 482 of Cr.P.C. seeking to quash the proceedings arising out of in C.C.No.606/2023 before the Senior Civil Judge and JMFC, at Devadurga, in C.C.No.628/2023 before the III Additional Senior Civil Judge and JMFC, at Raichur and in C.C.No.583/2023 before the Senior Civil Judge and JMFC, at Devadurga, which are all initiated for the offence punishable under Section 78 of the Karnataka Police Act (for short ‘K.P. Act).

2. All these three petitions are taken up for disposal, since, the common question of law is involved in these petitions.

3. In all these petitions, the petitioner is questioning the initiation of the investigation without there being any sanction as required under Section 155 of the Cr.P.C., since, the offence alleged under Section 78 of the K.P. Act, is non-cognizable offence. The factual matrix of the case that is relevant for these cases is that the Investigating Officer after having received a credible information, obtains approval / informs his higher officer that he is going to a raid, as he has received the information that a game of gambling is being played with betting of money. The Investigating Officer had secured the panchas, raided the spot, seized the cash which was found at the spot along with the number slips (Matka) and then returned to the police station and hands over the spot mahazar along with the accused who were apprehended at the spot. On the basis of such report, the SHO registers a case and thereafter, seeks permission of the Court under Section 155 of Cr.P.C. and then completes the investigation and files the charge-sheet.

4. The learned counsel appearing for the petitioner submits that when Investigating Officer proceeded to the spot on the basis of credible information, he should have obtained the permission of the concerned Magistrate under Section 155 of Cr.P.C. since the offence alleged i.e., under Section 78 of K.P. Act is non-cognizance offence and any investigation made without such permission is a nullity. In this regard he relies upon the judgment of this Court in the case of Vaggeppa Gurulinga Jangaligi vs. State of Karnataka1 in Criminal Petition No.101997/2019.

5. Per contra, the learned High Court Government Pleader appearing for the respondent – State submits that the Investigating Officer has obtained the permission of the learned Magistrate. Therefore, there cannot be any irregularity or illegality in the investigation. It is submitted that even though the permission was obtained later, it cannot be faulted with in view of the urgency involved in the matter. Section 78 of K.P. Act is non-cognizance offence and any investigation made without such permission is a nullity. In this regard he relies upon the judgment of this Court in the case of Vaggeppa Gurulinga Jangaligi vs. State of Karnataka1 in Criminal Petition No.101997/2019.

6. The provisions of Section 155 of Cr.P.C. and Section 78 of the K.P. Act, was dealt with in length by this Court in the case of Vaggeppa (supra). In the said judgment, this Court has laid down the guidelines by referring to Karnataka Criminal Rules Practice also. In Para No.20, this Court has laid down the following guidelines :-

“20. Therefore, under Rule I, the Magistrate shall endorse on the report whether the same has been received by post or muddam. Under Rule 2, Magistrate has to specify in his order the rank and designation of the police officer or the police officer by whom the investigation shall be conducted. Considering the mandatory requirement of Section 155 (1) and (2) of Cr.P.c. and Rule 1 and 2 of Chapter V of the Karnataka Criminal Rule Practice, this Court proceed to laid down the following guidelines for the benefit of the judicial Magistrate working in the State.

i) The Jurisdictional Magistrates shall stop hereafter making endorsement as ‘permitted’ on the police requisition itself. Such an endorsement is not an order in the eyes of law and as mandated under Section 155 (2) of Cr.P.C.

ii) When the requisition is submitted by the informant to the Jurisdictional Magistrate, he should make an endorsement on it as to how it was received, either by post or by Muddam and direct the office to place it before him with a separate order sheet. No order should be passed on the requisition itself. The said order sheet should be continued for further proceedings in the case.

iii) When the requisition is submitted to the Jurisdictional Magistrate, he has to first examine whether the SHO of the police station has referred the iformant to him with such requisition.

iv) The Jurisdictional Magistrate should examine the contents of the requisition with his / her judicious mind and record finding as to whether it is a fit case to be investigated, if the Magistrate finds that it is not a fit case to investigate, he / she shall reject the prayer made in the requisition. Only after his / her subjective satisfaction that there is a ground to permit the police officer to take up the investigation, he / she shall record a finding to that effect permitting the police officer to investigate the non-cognizable offence.

v) In case the Magistrate passes the orders permitting the investigation, he / she shall specify the rank and designation of the Police Officer who has to investigate the case, who shall be other than information or the complainant.”

7. A perusal of the records in the cases on hand would show that the Investigating Officer has proceeded for the raid, without obtaining the required permission to investigate the matter under Section 155 of Cr.P.C. It is relevant to know that the provisions of K.P. Act do not provide to proceed for the investigation as provided under Section 54 of the Excise Act. There is no such enabling provision which permits the Investigating Officer to either make a record of the statement and inform the higher officer and then proceed for the investigation. Therefore, registration of the non-cognizable case and then obtaining the permission of the Court to investigate the matter is a sine-quo-non for initiation of any proceedings. Evidently, in all the cases herein, the Investigating Officer had obtained the permission of the Court to investigate as required under Section 155 of Cr.P.C. He obtained the permission subsequent to the raid and the investigation officer had arrested accused and the material used for gambling. Therefore, it is evident that the raid as well as the arrest of the accused at the spot were without the sanction as required under Section 155 of Cr.P.C. No doubt the judgment of this Court in the case of Vaggeppa (supra), deals with the manner in which the Magistrate has to act while granting the permission under Section 155 of Cr.P.C., it also deals with the manner in which the Investigating Officer should initiate the action. It is pertinent to note that in the case of Mukkatira Anitha Machaiah vs. State of Karnataka and another in Crl.P.No.5934/2009 dated 20.08.2013, which was referred to by this Court in the case of Vaggeppa (supra), this Court had laid down as below:-

“5. Section 155 of Cr.P.C. deals with the procedure to be adopted in respect of an information received by the officer in charge of a police station relating to commission of a noncognizable offence. According to sub-section (1) of Section 155 of Cr.P.C. when an officer in charge of the Police Station receives an information as to the commission of a noncognizable offence, he shall enter or cause to be entered the substance of the information in the prescribed book and refer the information to the Magistrate. According to sub-section (2) of Section 155 of Cr.P.C. no police officer shall investigate a non-cognizable case without a order of a Magistrate having power to try such case or commit the case for trial. Thus, reading of sub-section (1) of Section 166 of Cr.P.C. makes it clear that the duty of the SHO, who receives information as to the commission of a non-cognizable offence is only to enter or cause to be entered the substance of the information in the prescribed book and refer the information to the Magistrate. It is for the informant to approach the jurisdictional Magistrate and seek a direction to the police for investigation. If the Magistrate on being approached by the informant, directs investigation, the Police Officer concerned would get jurisdiction to investigate the matter.”

8. Thus, it is evident that the very initiation of the proceedings by the Investigating Officer is without any authority and validity under the provisions of law. As a result, this Court has no hesitation to hold that the proceedings which were initiated without a valid permission by the learned Magistrate are not sustainable in law. Consequently, the petitions deserve to be allowed. Accordingly, the following;

O R D E R

I. The petitions are allowed.

II. The proceedings arising out of 1) in C.C.No.606/2023 before the Senior Civil Judge and JMFC, at Devadurga, 2) in C.C.No.628/2023 before the III Additional Senior Civil Judge and JMFC, at Raichur and 3) in C.C.No.583/2023 before the Senior Civil Judge and JMFC, at Devadurga, which are all initiated for the offence punishable under Section 78 of the Karnataka Police Act, are hereby quashed.