Karnataka High Court Directs Police, Election Commission To Provide Proper Training To Officials On Procedure For FIR Registration During Polls

The Karnataka High Court has directed the Chief Election Commission, State Election Commission and the Police Department to provide proper training to the officials, who are attached to the Election flying squad, on the procedure to be followed while reporting offences pertaining to Election Code violation.

A single judge bench of Justice K Natarajan said most of the cases registered by the Police on the complaint filed by flying squad remain only as an empty formality during the election and finally in most of the cases, the Police files 'B' final report when the candidate is elected or files the charge-sheet against the losing candidate, "even though the police knowing very well that in a non-cognizable offence, the FIR cannot be registered without permission of the Magistrate.”

The court said there is a gross violation of the procedures by the police in registering the FIRs without obtaining permission from the Magistrate under Section 155 of Cr.P.C. in non-cognizable offence. “They are facilitating the accused persons to escape from the clutches of law even though huge amounts were seized by the flying squad apart from other articles etc,” observed the court.

Thus, it issued the following directions:

(i) If any such non-cognizable offences were found committed, the informant have to obtain permission under Section 155(2) of Cr.P.C. by very informant shall approach the Magistrate under Section 155(1)

of Cr.P.C. and thereafter, the Magistrate shall accord permission under Section 155(2) of Cr.P.C. by application of mind by following the judgment of the Co-ordinate Bench in the case of Vaggeppa Gurulinga Jangaligi (Jangalagi) vs. The State of Karnataka, ILR 2020 KAR 630 and then the police to register the FIR and file the charge sheet.

(ii) In respect of offences punishable under Section 188 of IPC, though it is cognizable offence, the complainant or the flying squad shall not file any complaint before the Police under Section 154(1) of Cr.P.C., but, the complainant can seize the materials by preparing panchanama in the presence of witnesses, based upon the power conferred by the Election Commission of India and thereafter, the Election Commission of India may authorize the complainant to file the complaint under Section 2(d) read with Section 200 of Cr.P.C. along with the documents before the Magistrate as per Section 195(1)(a)(iii) of Cr.P.C.

It also said: “The Magistrate can take cognizance and dispense with the recording of sworn statements of the complainant-public servant and then pass the order by issuing the process under Section 204 of Cr.P.C. in accordance with law.”

The directions were given while allowing a petition filed by one A Manju and quashing the proceedings initiated against him under Section 188 of the Indian Penal Code, 1860 and Section 126 of Representation of People of Act, 1950 (for short 'R.P. Act').

It was alleged that on 17.04-2019, the complainant (Flying squad officer) came to know that the petitioner who was the BJP Lok Sabha candidate for Hassan constituency conducted a press meet at Mallige Hotel, Hassan, in spite of imposing curfew under Section 144 of Cr.P.C. The Police after registering the FIR under Section 188 of IPC and 126 of R.P. Act. filed the charge-sheet, which was challenged before the court.

The court said in view of the bar under Section 195(1)(a)(i) and (iii) of Cr.P.C., the Magistrate is barred to take cognizance without filing complaint by the complainant under Section 2(d) read with Section 200 of Cr.P.C.

"The Police have no authority to register the FIR without permission of the Court for non cognizable offence. Therefore, the criminal proceedings against the petitioner is not sustainable under the law and have to be quashed,” it added.

Case Title: A Manju And State of Karnataka

Case No: CRIMINAL PETITION NO. 10435 OF 2022

Citation: 2023 LiveLaw (Kar) 97

Date of Order: 17-02-2023

Appearance: Advocate Manjunath B for petitioner

HCGP B J Rohith for respondent.

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