IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA CRIMINAL PETITION NO /2013

Transcription

1 1 BETWEEN: IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 2 ND DAY OF MARCH, 2015 BEFORE THE HON BLE MRS. JUSTICE RATHNAKALA CRIMINAL PETITION NO / K S RAVINDRA S/O. LATE SHANKARAPPA AGE: 43 YEARS, MOTOR VEHICLE INSPECTOR, RTO OFFICE, DIST: BELLARY 2. UDAYKUMAR KAMAT MOTOR VEHICLE INSPECTOR RTO OFFICE, DIST: BELLARY... PETITIONERS (BY SRI : SHANKAR P HEGDE, ADVOCATE) AND : THE STATE OF KARNATAKA BY LOKAYUKTA R/BY THE INVESTIGATING OFFICER LOKAYUKTA POLICE STATION, BELLARY.... RESPONDENT (BY SRI : MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE)

2 2 THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH FIR AND COMPLAINT BEARING K.L.A. BELLARY P.S. CRIME NO.01/2010 (ANNEXURE-A) AND PANCHANAMA DATED (ANNEXURE-B) PENDING ON THE FILE OF THE SPL. JUDGE, PRL. DIST. & SESSIONS JUDGE, BELLARY BY EXERCISING POWER U/S 482 OF CR.P.C. AND QUASH CHARGE SHEET IN SPL. CASE NO.48/2011 PENDING ON THE FILE OF THE SPL. JUDGE, PRL. DIST. & SESSIONS JUDGE, BELLARY (ANNEXURE-C) BY EXERCISING POWER U/S 482 CR.P.C. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 482 of Cr.P.C. seeking to quash the F.I.R. and the complaint registered by the respondent Lokayuktha Police in Karnataka Lokayuktha, Bellary Crime No.1/2010 and the panchanama conducted on As the facts unfurl the P.I. of respondent Lokayuktha, Hospet charge sheeted the petitioners herein along with coaccused in respect of the offences punishable under Section 7, 8,

3 3 13(1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and Section 34 of I.P.C. 3. The case of prosecution is that on receipt of the credible information the P.I. went to the spot along with panchas and his staff on at p.m. and noticed the activities going on in the check post. Two home guards were stopping the lorries and directing the drivers/cleaners of the vehicles to go to the check post with tappals. Accordingly, the inmates of the lorry/trucks were rushing to the check post and were showing their trip sheets and tappals and obtaining their signatures on their documents. Two officers were sitting in the check post and another was standing outside the door. On talking to the officers in the check post, the drivers / cleaners were paying money to those officials. Two of such drivers i.e., C.Ws.4 and 5 were enquired by P.I. on which they revealed that they paid money to the Motor Vehicle Inspectors in the check post for allowing their overloaded lorry to pass through the check post, but the bribe

4 4 amount was instructed to be paid to the private persons, who were standing near the door. They had paid Rs.400/- and Rs.100/- respectively to the accused No.3 to allow their lorries to pass through check post. After confirming about collection of legal gratification by the accused persons, the I.O. along with the panchas and his staff raided the check post, apprehended the three accused persons (petitioner No.2 / accused No.2) ran away from the scene) C.Ws.6 and 7 identified the accused persons and stated about payment of Rs.400/- and Rs.100/- to accused No.3. On that, Rs.16,985/- and Rs.50,410/- was recovered from the table of petitioner No.1 and Rs.3,020/- was recovered from accused No.3. On verification of the records, Rs.32,110/- was collected towards fine. There was excess amount of Rs.21,320/- which was not accounted satisfactorily. Mahazar was drawn, the amount was seized under the mahazar, after further investigation charge sheet is filed. 4. Learned counsel for the petitioners submits that these petitioners previous had approached this Court challenging the

5 5 F.I.R. for not complying with the mandatory provisions of Section 17 of the P.C. Act, which contemplates prior approval by the Superintendent of Police before conducting the investigation. Annexure-D is the common order passed on similar applications. This Court dismissed their application by observing that such contention can be raised as defence and these grounds are not sufficient to quash the proceedings at the said stage. Thereafter these petitioners filed an application under Section 227 of Cr.P.C. before the court below. Urging the same contention which was raised before this Court and also this time they raised another ground under Section 162 of Cr.P.C., that the signatures of the witnesses obtained on the panchanama was hit by the provisions of Section 162 of Cr.P.C. However, the application came to be dismissed and revision filed vide Annexure-F is also dismissed by upholding the view taken by the learned District Judge. 5. Learned counsel further adds to his submission that though this is the third round for the petitioners before this

6 6 Court, there is no impediment to seek relief under Section 482 of Cr.P.C. The Apex Court in the case of State of Karnataka vs. N.A. Ramesh in Special Leave Petition (Criminal) No.3508/2013, has upheld the order passed by this Court and other High Courts, where the High Courts have struck off the FIR, registered subsequent to seizure panchanama. This contention was not taken up earlier by the petitioners either before this Court or before the District Court. Hence, it is a new contention and the question of res judicata will not come in the way to urge the present petition. He has relied on the judgment reported in (1975) 3 Supreme Court Cases 706, (Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh and Others. Fact involved in the said case was, the application filed by accused persons, who were charged with the offence punishable under Section 304A read with Section 109 of I.P.C. and under Section 561A of Cr.P.C (synonymous of Section 482 of Cr.P.C., 1973) for quashing the proceeding was rejected. Subsequently, when the proceedings

7 7 did not achieve any progress, the same accused persons made a fresh application before the High Court for quashing the proceedings under Section 561A of Cr.P.C. This time their application was allowed and the proceeding was quashed by holding that no prima facie case was made out and continuation of the proceeding was an abuse of the process of Court. Aggrieved by the same, State forwarded the lis to the Apex Court. The Apex Court confirmed the order of the High Court. At para 2 it was held as under : 2. The main question debated before us was whether the High Court had jurisdiction to make the order dated April 7, 1970 quashing the proceeding against respondents Nos.1, 2 and 3 when on an earlier application made by the first respondent, the High Court had by its order dated December 12, 1968 refused to quash the proceeding. Mr.Chatterjee on behalf of the State strenuously contended that the High Court was not competent to entertain the subsequent application of respondent Nos.1 and 2 and make the order dated April 7, 1970 quashing the proceeding, because that was tantamount to a review of its earlier order by the High Court, which was outside the jurisdiction of the High

8 8 Court to do. He relied on two decisions of the Punjab and Orissa High Courts in support of his contention, namely, Hoshiar Singh v. State (1958 Cr.L.J : 60 Punj lr 438 : AIR 1958 Punj 312) and Namdeo Sindhi v. State (1958 Crl.L.J. 67 : ILR 57 Cut 355 : AIR 1958 Ori 20). But we fail to see how these decisions can be of any help to him in his contention. They deal with a situation where an attempt was made to persuade the High Court in exercise of its revisional jurisdiction to reopen an earlier order passed by it in appeal or in revision finally disposing of a criminal proceeding and it was held that the High Court had no jurisdiction to revise its earlier order, because the power of revision could be exercised only against an order of a subordinate court. Mr. Chatterjee also relied on a decision of this Court in U.J.S. Chopra v. State of Bombay (1955) 2 SCR 94 : AIR 1955 SC 633 : 1955 Cr.L.J. 1410, where N.H. Bhagwati, J., speaking on behalf of himself and Imam, J., observed that once a judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction over the same. These observations were sought to be explained by Mr.

9 9 Mukherjee on behalf of the first respondent by saying that they should not be read as laying down any general proposition excluding the applicability of Section 561A in respect of an order made by the High Court in exercise of its appellate or revisional jurisdiction even if the conditions attracting the applicability of that section were satisfied in respect of such order, because that was not the question before the Court in that case and the Court was not concerned to inquire whether the High Court can in exercise of its inherent power under Section 561A review an earlier order made by its in exercise of its appellate or revisional jurisdiction. The question as to the scope and ambit of the inherent power of the High Court under Section 561A vis-à-vis an earlier order made by it was, therefore, not concluded by this decision and the matter was res integra so far as this Court is concerned. Mr. Mukherjee cited in support of this contention three decisions, namely, Raj Narain v. State (1959 Cr.L.J. 543 : 1959 All.L.J. 56 : AIR 1959 All 315) ; Lal Singh v. State (1970 Cr.L.J. 267 : ILR (1970) 1 Punj 177 : AIR 1970 Punj 32) ; and Ramvallabh Jha v. State of Bihar (1962) 2 Cr.L.J. 625 : 1962 BLJR 553 : AIR 1962 PAT 417. It is, however, not necessary for us to examine the true effect of these observations as they have no application because the present case is not one where the High Court was invited to revise or

10 10 review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding. Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561A of the Code of Criminal Procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that respondents Nos.1 and 2 were constrained to make a fresh application to the High Court under Section 561A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondents

11 11 Nos.1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos.1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of respondents Nos.1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima face case appears to have been made out against respondents Nos.1 and 2.

12 12 6. To persuade this Court, learned counsel further relied on the judgment of the High Court of Delhi, wherein a subsequent application for quashing of the proceedings under Section 561A of Cr.P.C., 1898 was entertained by holding that the facts and circumstances of the second application was entirely different from the time when first application was rejected. The same view is taken by High Court of Gujarat at Ahmadabad in Crl. Misc. No.6908/2009 (D.D ), wherein relying on the judgments of the Apex Court in Monaben Ketanbhai Shah v. State of Gujarat (AIR 2004 SC 4274), Aniruddhsinh v. R.K. Singhia, Deputy Director of the Directorate of Revenue Intelligence and Another, reported in 2000 (2) GLR 1390 held that it cannot be said that the second application under Section 482 of cr.p.c. is bald and not maintainable. 7. Coming back to the case on hand, learned counsel concludes that in view of the judgments of the Apex Court in

13 13 Spcial Leave to Appeal (Crl.) No.3508/2013 in the case of State of Lokayukta vs. N. A. Ramesh, this Court has already quashed several F.I.Rs. registered by the Lokayuktha, which was subsequent to raid and seizure mahazar and circumstance in the case on hand being identical continuation of the proceedings, is nothing but pure abuse of process of law resulting in mis-carriage of justice. Hence, petition may be allowed by quashing the proceedings. 8. In reply, learned Standing Counsel for Lokayuktha submits that the Investigating Officer received credible information about the alleged offence while he was in his chambers at 5.00 p.m. on As per the judgment of Lalita Kumari s case, it is always permissible for the Investigating Officer to ascertain himself about the commission of any cognizable offence and then to register a case, which is why he immediately proceeded to the spot and on noticing information received by him was true and correct, conducted the

14 14 raid in the presence of panch witnesses. Otherwise, at that point of time he could not have returned to his office to register the case and allow the crucial time to pass away. Otherwise, he could not have apprehended the accused red handed. The Apex Court is categorical in granting seven days time for the Investigating Officer investigating corruption cases, depending on the circumstances to make a preliminary enquiry and then to register the case. Having suffered orders of this Court and said order having become final, now it is not for the petitioner to approach the Court for the third time for quashing of the proceedings. It is for them to face trial and put forward their defence at appropriate stage. The ground, which is urged in this petition was already urged by them in Crl.P. No.2420/2010 and connected cases, that comes in the way of the petitioners making a fresh prayer in this petition to quash the proceedings. There is no merit in the contention of petitioner and the petition is liable to be rejected.

15 15 9. Order passed in Crl.P. No.8084/2010 and connected cases is Annexure-D. One of the grounds urged by these petitioners is enumerated in the said order. On a reading of relevant page No.9, surfaces that the petitioners herein contended that since the Lokayuktha police without filing a report to the jurisdictional court had chosen to act on the alleged information received, on the basis of the statements recorded in the course of alleged investigation, the very complaint was hit by Section 162 of Cr.P.C. and the complaint was not maintainable. This Court has observed that the statements recorded during the course of investigation is not an infirmity which would go to the root of the matter even if said ground is found to be tenable. However, it was held that such a contention can at best be raised in defence as an irregularity which would warrant the court below to draw adverse inference of the police having acted in a manner as indicated without submitting a report to the jurisdictional Magistrate at the earliest point of time and having chosen to do so by way of complaint after having acted on the initiative as

16 16 complained by the petitioners. Consequently, petition came to be dismissed. 10. From the above, it is clear that all the contentions raised by the petitioner herein, more particularly, about legality or admissibility statements of witnesses recorded earlier to registration of FIR was not addressed and kept open to be urged at a later stage. 11. Consistent view taken by this Court is seizure mahazar held prior to registration of FIR is not in accordance with mandatory provision of Section 154(1) of Cr.P.C. and has no legal sanctity in view of the various judicial pronouncements of this Court (Crl.P. No.10616/2013 D.D K. Yerriswamy vs. State of Karnataka, Lokayuktha, Bellary ; Crl.P. No.15941/2012 c/w. Crl.P. No.15852/2012 D.D Sri Girishchandra and Another vs. The State by Lokayuktha Police, Yadgir (D.B.) ; Crl.P. No.1001/2013 D.D

17 17 Sri K. Ashwath Reddy and Another vs. Karnataka Lokayuktha Police, Police Wing, City Division, Bangalore ; Crl.P. No.3213/2012 c/w. Crl.P. Nos.2142, 2877, 2910 and 2942 of 2012 D.D L.Shankaramurthy, N.A. Ramesh, B.H. Shankare Gowda, S. Dinesh, Smt. H. Jayamma and Another vs. The State by Lokayuktha Police, City Division, Bangalore Urban Division, Bangalore ; Crl.P. No.10442/2013 D.D Somashekhrappa vs. The Karnataka Lokayukta, Belgaum ; Crl.P. No.11477/2011 D.D Shri C. Hemanth Kumar vs. Karnataka Lokayuktha, Hospet, Bellary District). When the Lokayuktha challenged Crl.P. No.2142/2012 (N.A. Ramesh s case) judgment of this Court in Special Leave Petition (Criminal) No.3508/2013, it was considered along with bunch of cases and was rejected. 12. In that view of the matter, it does not require further discussion as to whether the FIR registered in this case by the I.O. after conducting mahazar is sustainable or not. He has gone to

18 18 the spot on receiving the information with all preparation, procured the panchas, conducted raid and seized the cash amount, drawn the mahazar, recorded the statements of witnesses and after returning to the office registered the case and also made entries in the general diary as indicated in the FIR iteslf that such entry was made on at 5 p.m. 13. Though the State Public Prosecutor made his earnest effort to impress on the Court that the raid conducted by the I.O. comes within the category of preliminary inquiry and not under investigation, is without foundation. That the Apex Court in Lalita Kumari s case (supra) made a clear distinction between the inquiry and the investigation. The terms inquiry and investigation are contemplated under the definition clauses 2(g) and 2(h) of Cr.P.C. as under : 2(g) Inquiry means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

19 19 2(h) Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 14. The procedure for investigation is contemplated under Section 157 of Cr.P.C. as follows 157. Procedure for investigation :- (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided that

20 20 (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. 15. That makes it clear that inquiry is the regime of the Court and the investigation is an official act of the Investigating

21 21 Officer in collecting the evidence after registration of FIR. The preliminary inquiry pre-fir action of the I.O. to satisfy himself whether cognizable offence is committed or not. The Apex Court has given seven days time in respect of several categories of cases including corruption cases for the I.O. to ascertain himself about the truthfulness or otherwise of any information received by him about the occurrence of cognizable offence. So the time allowed for registration by the Apex Court is only in respect of registration of cases, but not for conducting the investigation even before registration of the case as held by this Court and confirmed by the Apex Court. Wherefore inescapable conclusion is very registration of the FIR in this case subsequent to conduct of seizure mahazar is bad in law and goes to the root of the matter, which cannot be cured. Hence, consequential charge sheet and the further criminal proceedings are also vitiated, allowing such proceedings is to continue mere abuse of process of law and requires to be quashed under Section 482 of Cr.P.C.

22 Accordingly, petition is allowed. FIR registered in Bellary P.S. Crime No.1/2010 dated by the respondent police and the subsequent charge sheet filed by the Investigating Officer in Special Case No.48/2011 on the file of Special Judge, District and Sessions Judge, Bellary, vide Anneure-C and panchanama dated vide Annexure B are quashed. hnm Sd/- JUDGE