Sanchayita Lahkar

The High Court of Karnataka at Kalaburagi, Single Bench of Justice V Srishananda quashed the order of taking cognizance and issuing process in a case involving alleged gambling activities. The court declared that the investigation and subsequent charge sheet filed under Section 78(III) of the Karnataka Police Act, 1963 were not in accordance with the law due to non-compliance with the procedural mandates laid out under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Consequently, the court directed the quashing of the criminal proceedings pending before the Additional Civil Judge and JMFC, Lingasugur, Raichur district.

The Bench recorded that the case registered by the Station House Officer (SHO) of Hutti Police Station was for a non-cognizable offence and that the investigation had been conducted without obtaining prior permission from the jurisdictional Magistrate. In issuing its directive, the court also mandated that a copy of the order be forwarded to the Law Department for necessary action, stating the absence of rules under the BNSS despite the law coming into force on July 1, 2024.

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A criminal petition was filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the cognizance and process issued by the trial court dated August 27, 2024, in C.C. No.1017/2024, pertaining to Crime No.147/2024 registered at Hutti Police Station, Raichur. The offences in question were punishable under Section 78(III) of the Karnataka Police Act, 1963.

The petitioners, both residents of Raichur district, were allegedly found involved in the activity of 'Matka' gambling near the new bus-stand of Hutti Town. According to the report submitted by Police Inspector Sri Hosakerappa K., a credible tip-off was received on July 16, 2024, at approximately 12:30 p.m., regarding illegal gambling activities at the said location.

Acting upon this information, a raid team was formed comprising the complainant, sub-staff, and panchas. During the raid, the present petitioners and others were reportedly found engaged in gambling. The police seized a total sum of Rs. 17,870, Matka lists, a Redmi mobile phone, a Vivo mobile phone, and several Matka chits from the possession of the accused.

Subsequently, Crime No.147/2024 was registered under Section 78(III) of the Karnataka Police Act. Following investigation, a charge sheet was filed on July 19, 2024. The petitioners challenged the very registration of the case and filing of the charge sheet on the grounds that the entire proceedings were illegal and not in accordance with the procedure mandated under the new criminal law framework, BNSS, 2023.

Learned counsel for the petitioners, Sri Shivanand V. Pattanashetti, argued that the offence under Section 78(III) of the Karnataka Police Act is non-cognizable. Therefore, the SHO had no authority to register the FIR or proceed with the investigation without obtaining prior permission from the jurisdictional Magistrate, as stipulated under Section 174 of BNSS, 2023.

The State, represented by Smt. Arati Patil, High Court Government Pleader, opposed the petition and supported the action taken by the police.

The focal point of the petition was the legality of registering a non-cognizable offence and conducting an investigation without compliance with the procedural safeguards laid out under Section 174 of BNSS, 2023.

The court recorded the relevant legal position under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It "is crystal clear that whenever an information is received by an officer in-charge of the police station within whose jurisdiction a non-cognizable offence has been committed, he is bound to enter or cause to be entered the substance of the information in a book to be kept in the police station as the State Government may prescribe in the rules."

The court further stated: "Later on, the informant should be referred to the Magistrate for obtaining necessary permission. It is also incumbent on the SHO to forward the daily diary report of all such cases fortnightly to the Magistrate."

Quoting Sub-Section 2 of Section 174, the court observed: "No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial."

The Bench stated the procedural mandate that "the police should register a case and investigate the matter... except arresting the person involved in the said case without arrest warrant and file appropriate report as is contemplated under Sub-Section 3 of Section 174 of BNSS, 2023."

Regarding Sub-Section 4, the court noted: "Where a case relates to two or more offences of which any one of the offence is cognizable, the whole incident is to be treated as an incident where cognizable offence has taken place..."

However, in the present case, it was admitted that the sole charge was under Section 78(III) of the Karnataka Police Act, which is non-cognizable in nature. The court recorded: "Without following the procedure as is contemplated under Section 174 of BNSS, 2023, the SHO has not only registered the case but investigated the matter and filed the final report."

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The Bench further observed: "It is to be noted that even though BNSS, 2023 came to force from 01.07.2024, till today no rules are framed by the State. It is expected that State would take necessary steps in this regard at the earliest."

The Court concluded that the actions of the SHO and the subsequent prosecution were not legally sustainable.

The High Court issued the following directions: "Criminal petition is allowed.The order of taking cognizance and issue of process dated 27.08.2024 passed in C.C.No.1017/2024 (Crime No.147/2024 of Hutti Police Station, Raichur), pending on the file of Additional Civil Judge and JMFC, Lingasugur, Raichur district, is hereby quashed."

"Copy of this order is directed to be forwarded to Law Department for taking suitable action."

Advocates Representing the Parties

For the Petitioners: Sri Shivanand V. Pattanashetti, Advocate

For the Respondents: Smt. Arati Patil, High Court Government Pleader

Case Title: Asif & Anr. vs. State of Karnataka

Neutral Citation: 2025: KHC-K:3525

Case Number: Criminal Petition No. 201594 of 2024

Bench: Justice V Srishananda