IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA. CRIMINAL PETITION No /2012

Transcription

1 1 BETWEEN IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 20 TH DAY OF MARCH, 2015 BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA CRIMINAL PETITION No /2012 B P KRISHNEGOWDA, S/O.LATE PUTTASWAMYGOWDA, AGE: 42 YEARS, MOTOR VEHICLE INSPECTOR, RTO OFFICE, KOPPAL. (BY SRI SHANKAR HEGDE & ASSOCIATES)... PETITIONER AND KARNATAKA LOKYUKTA, R/BY THE INVESTIGATING OFFICER, LOKAYUKTA POLICE STATION, BELLARY.... RESPONDENT (BY SRI MALLIKARJUNASWAMY HIREMATH, ADV.) THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C. SEEKING TO CALL FOR ENTIRE RECORDS IN KARNATAKA LOKAYUKTA, BELLARY CRIME NO.7/2009

2 2 FROM THE INVESTIGATING OFFICER KARNATAKA LOKAYUKTA, BELLARY, I.E., DY. SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTA, BELLARY AND QUASH F.I.R. BEARING K.L.A. BELLARY P.S. CRIME NO.7/2009 (ANNEXURE-A) AND COMPLAINT PENDING ON THE FILE OF SPL.JUDGE, PRINCIPAL DISTRICT & SESSIONS JUDGE, BELLARY. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R This petition is filed seeking to quash the Crime No.7/2009 registered by the Karnataka Lokayuktha, Bellary, which is submitted to the Court of Special Judge, Bellary. 2. As the facts reveal that on at 9.00 p.m., the Dy.S.P. of Lokayuktha on receipt of a credible information about the R.T.O. officials in Hagari Regional Transport Office check post indulging in receiving bribe money from the drivers and cleaners, proceeded to the spot on the same day at 9.45 p.m. and observed that four home guards were stopping the lorries passing through the checkpost and insisting the inmates of the lorry to

3 3 show trip sheets and other documents. On that, the inmates of lorry were running to the check post, and were showing the documents to the officers in the check post paying the money to those officials. Being convinced with the truthfulness of the information, the raid party surrounded a person in the uniform and another person sitting in the check post. On their body search, nothing could be recovered. On an inquiry with the drivers and cleaners who were getting their documents verified, they reveal that they had paid illegal gratification of Rs.100/- to the petitioner/r.t.o. Inspector. Totally Rs.43,500/- was traced in the office which tallied with the receipts counter receipts in the office. They had not maintained Cash Maintenance Register. Mahazar was drawn; the Police Inspector registered the case and took up further investigation. After investigation, he submitted C' report to the Court and the same is accepted. 3. Learned counsel for the petitioner submits that though C' report is submitted, the petitioner is made to suffer. He is not

4 4 given promotion since he is not discharged of the charges. Filing of the FIR and the mahazar have come in the way of his career. The officials junior to him are given promotion whereas he is made to sit under the hanging sword of departmental inquiry on the basis of the FIR and the mahazars. Learned counsel further submits that the very act of the Police Inspector in causing seizure search, drawing up of mahazars has no legal sanctity without registering a case. In that view of the matter, the FIR and mahazars are liable to be quashed. 4. In reply, learned Standing Counsel for Lokayuktha would submit that as per the judgments of Apex Court in Lalita Kumari vs. Government of Uttar Pradesh and Others, reported in (2014) 2 Supreme Court Cases 1. It is permissible for the I.O., if the information received by him does not disclose a cognizable offence, but indicates a necessity for an inquiry to conduct a preliminary inquiry to ascertain whether cognizable offence is disclosed or not. However, as per the guideline laid

5 5 down in the above judgment, the period for preliminary inquiry shall not exceed seven days. The Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad, distinguishing the case of our High Court in Crl.P. No.3213/2012 and connected cases D.D , in respect of seizure mahazar conducted prior to registration of the case has observed at para 9 as follows 9. When a complainant lodges a complaint it should contain narration of all the events that constitute the offence under section 7 of the Act. As far as demand and agreement of illegal gratification is concerned, the complainant would vouch for it. When it comes to proving acceptance of such gratification, the complainant and shadow panch would vouch for it. In view of these necessary requirements to prove an offnce under section 7 of the Act, the First Information Report must contain entire narration, and the entire narration is possible only if earlier a trap is laid and it is successful. The pre-trap panchanama and post-trap panchanama are merely formalities to give credence to the allegation. What is important in evidence that is given in such case is substantive evidence of the complainant and shadow panch. So, the

6 6 formalities that are undertaken during the preliminary inquiry are merely steps that are required to be followed before lodging a complaint. In a way all that takes place prior to registration of offence under Section 7 of the Prevention of Corruption Act is more or less part of the original complainant s narration. As said above, if such narration constituted an offence, it is only then an offence is registered. 5. The Apex Court in the case of State of Haryana And Others vs. Bhajan Lal And Others, 1992 Supp (1) SCC 335, has enumerated seven circumstances under which FIR can be quashed, under extraordinary jurisdiction of Article 226 of the Constitution of India or the inherent power under Section 482 of Cr.P.C. In the case on hand, no such circumstances has accrued in favour of the petitioner to seek for quashing of the FIR. Since the I.O. has already submitted C' report. It is not the circumstance where the case registered was found during the investigation to be the basis of a false complaint. Only, because I.O. was unable to collect required evidence constituting the offence under Section 7, 13, 1(d) and 13 of P.C. Act, C' report is

7 7 filed. The registration of the case in no way prejudices the right or interest of the petitioner. Under the circumstances, the petition is liable to be quashed. 6. In the light of the above rival submission the sole point for consideration is Whether there is any valid ground to quash the FIR so also the seizure mahazar conducted prior to registration of FIR? 7. As per the records, the I.O. receives an anonymous telephonic call at 9.00 p.m. on about the Motor Vehicle Inspector and Group D employee of the RTO office, Bellary about allowing the vehicles carrying iron ore to pass through the check post without examining the documents even if the vehicles are carrying the ores beyond permissible limit by receiving a bribe from the inmates of the lorries. Immediately, he procured the panch witnesses, went to the RTO check post, observes that the drivers and cleaners of the lorries were meeting

8 8 the official in the check post with their trip sheets and the officials without examining the documents were allowing them to pass through after receiving bribe money from them. Thereafter, he raided the check post and Rs.43,500/- disproportionate amount was seized under the mahazar. Explanation of accused persons were recorded and they were arrested and on return to the police station case is registered. 8. The petitioner challenged registration of the case against him in CRL.P. NO. 7612/2010 D.D under Section 482 of Cr.P.C. Learned Single Judge declined to interfere with the investigation which was lawfully commenced. The petition was disposed of, with the observation that the grounds urged by the petitioner were not sufficient to quash the proceeding at the initial stage, right was reserved to the petitioner to canvass all the grounds urged in the said petition in addition to any other ground for seeking discharge before the trial Court.

9 9 9. But the investigation did not culminate in the charge sheet and there no opportunity for the petitioner to seek for discharge. C' report was filed by the I.O. on It is also the submission at the bar that the departmental inquiry initiated against the petitioner on the same allegation has ended up in exoneration of the charges levelled against him. 10. Though the petition was pending ever since 2005, it was being adjourned on the submission made on behalf of the respondent Lokayuktha that similar issue is pending before Apex Court. On the Apex Court dismissed Special Leave Petition (Criminal) No.3508/2013 the State of Karnataka vs. N.A. Ramesh. It is the submission on behalf of the petitioner that since the matter has reached finality regarding the issue as to whether it is the mandatory requirement of Section 154(1) of Cr.P.C. for the I.O. to firstly register the case on receipt of information about commission of a cognizable case, and the finding of this Court has been upheld and now the law is very well

10 10 settled that the I.O. is required to follow the procedure contemplated under section 154(1) of Cr.P.C. The case registered subsequent to the mahazar, hence is liable to be quashed along with the seizure mahazar. 11. But the rival submission for the State is, the seizure mahazar is nothing but preliminary inquiry conducted on receipt of the information before registering the case. In view of the judgment of the Division Bench of the High Court of Judicature at Bombay, Bench at Aurangabad, in Crl.P. No.3213/2012 and connected cases D.D , but I am at a loss to equate the preliminary inquiry contemplated by the apex court in Lalita Kumari s judgment to the seizure mahazar conducted by the Investigating Officer in this case prior to the registration of the case. The Aurangabad Bench of Bombay High Court was dealing with the case of complaints in pursuance of which trap raids were conducted and the bribe amount was being seized from the possession of the accused public servants. But here is a case

11 11 where there was no such complaint against the petitioners. Hence, the judgments of this court cited supra applies in all force to the present case, also thereby vitiating the mahazar conducted without registration of the complaint and also the FIR registered subsequent to seizure mahazar. Still for disposal of this petition I take note of the fact that subsequently the petitioner is exonerated from the charges in departmental inquiry also. That being so, what is the exigency for invoking the inherent jurisdiction of this court under section 482 of CR.P.C. to quash the FIR and the seizure mahazar. 12. In Bhajan Lal s case (supra), seven categories of cases are listed by way of illustration, wherein the extraordinary power under Article 226 of the Constitution of India or the inherent power, under Section 482 of Cr.P.C. can be invoked to quash FIRs. as below (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at

12 12 their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

13 13 (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 13. Here is the case where the petitioner is not at all affected by the seizure mahazar and the FIR registered against him he has been hounourably exonerated of the charges in the

14 14 departmental inquiry. In my considered opinion, the circumstance do not warrant quashing the FIR and the sizaure mahazar which is already closed with C' report. Hence, the petition is dismissed. Naa/hnm Sd/- JUDGE