Karnataka High Court
Sri Balwanth Patil vs Smt Rajeswari on 28 March, 2008
Author: K.Bhakthavatsala
Bench: N. Ananda, K.Bhakthavatsala
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 31ST DAY OF MARCH 2008, BEFORE THE HON'BLE MR. JUSTICE N. ANANDA CRIMINAL PETTOON Ka. 63 fo 880/ 2004 V. Anantha Kumar. . S/o. Late Venkcataromanaiah Age: 56 years ~ Ria: Biliginr [hemerajanagar ~B.R.Hi Road Chamarajanagar Chemarajanagar District. Sri Basavaraju |" So Mellaiah Age: 41 years os R/a Ayvyenapura Chamarajanagar Taluic & District. . Sti Rangaiah S/o. Channaiah Age: 51 years R/a: Kumbeshwara Colony Chamarajanagar Town & District. ... Petitioners (By Sri T.R.Subbanna, Sr.Advocate for M /s.Sivan & Siva Associates, Advocates) AND: State of Karnataka Rep. by Sub-Inspector of Police Santhemaralli Chamarajanagar District - Rep. by State Public Prosecutor Advocate General's Office | a High Court Building ne Bangalore-560 901. oo, Respondent (By Sri H. Henurauborayappe, HOSP) This Ciiminal petition is filed under section 482 Cr.P. C., praying to quash: the F.LR., submitted by Santhemaralli Police in Santhemarallt Thena Crime No.48/2003, before the Addl. Civil Judge (Jr.Dn.) & JMC, 'Chamarajanagar & etc. This petition coming on for final hearing this day, the Court made the following ORDER
The petitioners arrayed as accused 1 to 3 in Crime : No. 48/: 2008, registered for an offence punishable under section Bb) of the Explosives Act, 1884 (for short, 'the Act'), a have 'sought for quashing First Information Report and * . consequent investigation.
During pendency of petition, Santhemarahalli Police have submitted chargesheet against petitioners for aforesaid offence. WV. ber end. ,
2. The brief facts necessary for Aisposal of petition are as follows:- ss. . . | | Qn 07.12.2003, Sub-inspector of Police of Santhemarahalli Police, Station (hereinafter referred to as 'compiainant) received coedible information about storage of explosive substances \ viz 0 5 detonatins, 2) 200 grams of detonator wires, 3} gelatin stick, measuring % foot, 4) 1 k.g. of gun powder and other... explosive substances and proceeded to that place along with panch witnesses namely Puttappe. So. 7 _ Mariswamappe, Papanna S/o. Veerabhadroppe of Heggavadipura village, K.Javarayegowda
- "S/o. Kelegowda, Shivanna s/o. Puttaveera Naika and
- 7 G.K.Subramanya s/o. Kunaja Naika and heard sounds of explesives. The Sub-Inspector of Police searched a shed Os wherein accused No.2-Basavaraju and accused No.3- 7 Rangaiah were present. In that shed, they found two plastic | covers contaiming 200 grams of detonator wires, 5 electronic detonators, one kilogram of gun powder. When the Sub- Inspector questioned accused 2 & 3, they did not produce fT:
license, on the other hand they informed above explosives were given by accused No.1. Later, 'Sab-Inspector of Police | and panch witnesses proceeded to a. quarry "and found preparations had been. made to extract granite stones by using explosives. The complainant, arrested accused No.2- Basavaraju | and accused 'Ne. 3-Rangaiah and seized explosives under a smahazar and. Drought. them to police Station and vegisicred a a case in crime No. 48/2003. The Sub- Inspector of Police recorded statements of panch witnesses namely Puttapps, Papenna, K.Javarayegowda, Shivanna and G: x. Subramanya. The samples of seized explosives were sent _to ) Controller of Explosives and the rest of explosives viz we articles: 4, 3, 4&5 were destroyed by the Controller of Explosives, in the presence of witnesses. On examination of os sampies of the explosives, Controller of Explosives opined 7 they were explosives within the meaning of the Explosives _ "Act, 1884. The Sub-Inspector of Police after completing investigation submitted chargesheet.
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3. Sri T.R. Subbanna, learned. senior Counsel - appearing for petitioners has made following submissions: - . I, In view of orders passed in _W.P.Nos. 24950-51/2003 dated 11.06. 2003 and Ww. P.No40985,/2003 dated 07.10.2003, right of petitioner tn io extract granites in land bearing survey. No. 83/2 of Deshavalli village was protecied all along, The Petitioners in W.P.Nos.24950- 51/2003 dated. 11.06.2008 and W.P.No.40385/2003 » dated 07. 10.2008 bad constituted accused No.1 as their power "of attorney. Therefore, petitioner was extracting granites by entering into an agreement with "gue Mukthar Ahmed on 27.08.2002. The said Mukthar | 'Abmed held license to possess and use explosives to eazy on blasting operations to extract granite from the "quarry. He also held shotfirer's permit dated 28.06.1988, granted by the Deputy Chief Controller of Explosives, South Circle, Madras. Thus, on the date of alleged offence, I-petitioner was holding permit to extract granite stones in survey No.83/3 of Deshavalli nr. brimmed i.
village. He had engaged Services sof Mukthar Abmed for blasting operations. Therefore, casé registered in Crime No.48/2003 for ab offence punishable under section 9B(b) of the Act and subsequent investigation are motivated to harass petitioners as the Deputy Commissioner was. unsuccessful in cancelling permit granted wo petitioners in W.P. Nos.24950-5 1/2003 . dated 4U 58. 2003 ang Ww. P.No.40385/2003 dated S, 07. 10. 2603, The 'eamed _senior Counsel would submit orders passed by this Court in W.P.Nos.24950-5 1/2003 dated t 1. 6. 2003 and W.P.No. 40385 / 2003 dated . 07.16.2003 are binding on the State, represented by;- the "Department of Industries and Commerce, the Deputy Commissioner of Chamarajenagar District, the Director of Department of Mines and Geology, the Deputy Director of Department of Mines and Geology and the Tahsildar of Chamarajangar Taluk. w dw, Hl.
The Sub-Inspector of Santhemarabalii Police Station :
was instigated by respondents 2 tos oi the aforesaid writ petitions to foist cage against accused i petitioners. The documents - filed under 'section 173{5) Cr.P.C., accepted on their face value, do not constitute offence ed neninst titioners.
ag Pe The pzvsecttion being vindictive cannot be allowed to 'continue aad continuation of prosecution would be % abuse of process of i iow.
The. Sub-inspector of Santhemarahalli Police Station und registered Crime No.8/2004, alleging I-petitioner Vi.
bad "kept explosives in his quarry. After completing investigation, the Sub-Inspector submitted final ; report, stating no case was made out against I-
'petitioner therein. However, in the case on hand, on the basis of similar allegations but for change in the date, final report is filed against petitioners.
The Investigating Officer being complainant himself has completed investigation, contrary to the settled ry Col pele against petitioners. Therefore, this Court cannot exercise. 'its .
powers under section 482 Cr. P. C., 'to qaeh chorgeshoet._ S. In order to appreciate. contentions "of learned Counsel for parties, iis iy necessery to reier to section 9B(b) of the Explosives Act, 1844, which reads thus: > "9B. Punishment i for cectain offences-(1 XXX
(a) XH. 2 ; b) poseesses, _uses, vells or transports any | explosive | shall be punishable with o imprisonment for a term which may extend to two years or with fine which may extend to "three thousand rupees, or with both; and (0)?
Thus, in order to constitute an offence punishable under. 'section 9B(b) of the Act, it is necessary to prove a petitioners were in possession of explosives in contravention of | Rule 5 of the Explosives Rules or under conditions of wood.
license granted under the Rules.
10 Rule 5 of the Explosives Ruks, 1983 reads thus: - -
"8. Prohibition of unauthorised explosives- No person 'shall import, export, :
transport, manufacture, possess, use or sell 'any explosive which 1 is "not an auihcrised explosive:
Provided that nothing in this Tule shall apply to the manufacture and possession for test and trial purpoves. and not for sale of a new explosive composition under development at a . place 'specially approved for the purpose by the ' Chief Controller: in a a Heensed factory."
In the case cn hand, right of I-petitioner to extract Yves wile Akowes are in survey No. 83/3 of Deshavalli village, has been "recognised "by this Court by virtue of orders made in _ W.P.Nos.24950-51/2003 dated 11.06.2003 and W.P.No. 46385/2003 dated 07.10.2003. Petitioner No.1 had entered into agreement with one Mukthar Ahmed on 27.08.2002, who was holder of explosives license to use explosives for | blasting in quarries. This document was filed as Annexure in | W.P.Nos.24950-51/2003 dated 11.06.2003. In view of binding nature, orders passed in W.P.Nos.24950-51/2003 chp.
1} dated 11.06.2003 and W. P. No. 409852 2003 dated 07.10.2003, the State cannot be permitted Ao contend Ou 07.12.2003, petitioners were. in Possession of explosives contrary to Rule 5 of the Explosive Rules, 1983 or conditions of license granted under said Rules..
6. From ¢ 'copies of documents filed under section 173(5) CrP.c., made "available hy learned HCGP, I find the Sub- Insp2ctor of Santhemarahalli Police Station registered a case in Crime No. 48/ 2003 against petitioners. The Sub-Inspector of Police and panch witnesses had visited the lands bearing Ot survey Nos. 80/2, 83/3, and 80/1 of Deshavalli village. The oe Sub-Inspector of Police seized explosives, which are detailed ; supra, under a mahazar dated 07.12.2003. The Sub- Inspector of Police recorded statements of mahazar witnesses
- : namely Puttappa, Papanna, K.Javarayegowda, Shivanna and _G.K.Subramanya. On 15.12.2003, the articles seized by the complainant were later destroyed by Controller of Explosives. Thus, we find Sub-Inspector of Police being a complainant we ch and 12 had conducted entire investigation | and : submitted ° chargesheet. . | . a | . | 7
7. A Division Bench of this Court, in the case of State of Karnataka, Paper Town: Police 'Station, Bhadravathi Va. Sheshadri Shetty and | others, reported iv TLR 2004 KAR 218, has held:- ae 7 "3, "One. of the 'basic legal infirmities . which herve been heki: against the prosecution by ; the Trial, 'Court emanates from the fact that > PWS. H. Manjeppa who was the Sub-Inspector of Police at the relevant time had gone to the spot and being also the Investigating Officer has _ recorded his own complaint, treated it as the FIR . and: has proceeded with the investigation. The "Tegal _complications that emanate from a ; situation of this type have been highlighted by . the Supreme Court in the case of MEGHA SINGH vs STATE OF HARYANA wherein the Investigating Officer was the very person who had lodged the complaint which was treated as the FIR and the starting point of the investigation. The Supreme Court disapproved of the procedure and undoubtedly, there was very Ww. ol ow-de-
13 valid reason for it because the. 'Supreme Court . | has indicated that where. tie letting Officer happens to be 'the complainant 'that. would be perhaps difficult. to uphold the position that the investigation . wes, impartial. An impartial investigation is the essential bed-rock for any successful prosecution, Undoubtedly, this situation : was : vey "jinusual and was soraething that rarely. ever happens in criminal _cases but the Supreme Court was quick to point out thet. this. ie a legal infirmity or an "impediment. This i is "precisely the plea that was put. forward before the Trial Court. The "Trial Court upheld the plea and it was one of the "principal grounds on which the accused have
-- been acquitted."
2. In the case on hand, Sub-Inspector of
- Saniheinarahalli Police Station, being complainant himself, Ss coiducted entire investigation and submitted chargesheet | without verification of facts. The investigation was motivated, in view of orders passed by this Court in W.P.Nos.24950- 51/2003 dated 11.06.2003 and W.P.No. 40385/2003 dated re cbrtade.
14 07.10.2003, wherein the Stale was "unsuccessful, in withdrawing license granted to writ petitioners.
9. Now, adverting to documents: filed under section 1736) Cr.P.c., I find. Javestigating Officer on credible information, registered | a case against petitioners for an offence punisheble under section 9B(b) of the Act. The spot mahazar woult reveal explosives described supra were found im a shed situate abn suivey Nos. 80/2, 83/3, and 80/1 of Deshavalli i villoge. The I ~petitioner was not present when explosives: were 'seived. There is nothing on record to os attribute physical or constructive possession of seized 4 explosives: to -I-petitioner. The Investigating Officer has inainly reliod on statements of accused 2 & 3/ petitioners 2 & ers) herein made against accused No.1/I-petitioner herein, "which are not admissible in evidence.
10. The Investigating Officer has recorded statements of panch witnesses namely Puttappa, Papanna, K.Javarayegowda, Shivanna and G.K.Subramanya. rw. ob pude, The statement of Puttappa sfo. "Mariowencsypa recorded under section 161 CrP, would reveal 'he had accompanied the Sub-Inspector of Police to a quarry, visited a shed situate in lends bearing survey No. 80/ 1, 80/2 and 83/3 of Deshavalli village and found 'two plastic covers, which contained 'explosives described above. On enquiry with accused '2 & 3, they learnt above - explosives were given by I- petitioner to them, Thereafter, Sub-Inspector of Police and other pench witnesses visited 4 quarry and found explosive substances had 'been used to extract granite stones. The statement does not maake any reference to survey Nos. 80/2, : 83/3, and 89/1 of Deshavalli village, in which granite stones _ were extracted by using explosives cic er occes. The other tt _ witnesses viz Papanna S/o. Veerabhadrappa of Os Heggavadipura village, K.Javarayegowda S/o. Kalegowda, 7 Shivanna s/o. Puttaveera Naika and G.K. Subramanya s/o. Kunaja Naika have given similar statements. Even after accepting statements of these witnesses on their face value, | do not find any material to attribute physical or constructive ro ch pnd 16 possession of seized explosives t to L-petitioner. It is alse not possible to accept that quarry visited by Investigating Officer and panch witnesses belonged i I- I-petitioner. It i 1s needless to state when I-petitioner is _ prosecuted for possession of explosives contrary = to "Raiie 5 of Explosive Tules, the investigating papers "should. 'contain definite material to attribute physical er r copstiuc tive possession of explosives to I-petitioner. On 'consideration of all the documents filed under section 17365) cr, P. C., and accepting them on their face vaine, 7 am of. opinion, documents brought into existence during course of investigation do not constitute an . --<--e under section 9B{b) of the Act. 11 in the matter of search and Seizure, the Investigating Officer has not secured witnesses of locality : "before carrying on search, as provided under section 102 CrP.C., and section 5 of the Explosives Act, 1884. The Investigating Officer did not permit occupants of place to attend the search and had not delivered a copy of search list. re ofiiendn 17 The Investigating Officer after carrying out gearch did. not | give intimation to the Chief Controller of Exploaives. : -
The learned HCGP wibbnaa judgment ¢ of the Supreme Court, reported in 2005 AIR SCW 11, bas contended that this Court should be extremely 'cautious and slow to interfere with the investigation ard / or trial of criminal cases.
ak The Supreme Court in the ouse of Sanapareddy Mahaeedhar Seshagivi & another Vs. State of Andhra Pradesh & another, reported in 2008 AIR SCW 11, has hekd:-
a Tie High Court should be extremely | cautions and slow to interfere with the = "investigation and/or trial of criminal cases and showkd not stall the investigation and or : prosecution except when it is convinced beyond . any manner of doubt that the FIR does not disclose commission of any offence or that the allegations contained in the FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In V. > 18 dealing with such cases, te High Court bas to. | bear in mind that judicial 'intervention at the threshold of the legal process initiated against a person accused of committing offerice is highly detrimental to 'the karger public and societal interest. The people and the. society have a legitimate expectation that those committing offences either against an individual or the society. are expeditiously: brought to trial and, if . found. . guilty, adequately punished. Therefore, ' while deriding a petition filed for quashing the FIR or complaint or restraining the competent authority from - investigating the allegations ae contained i in the FIR or complaint or for stalling "the trial of the case, the High Court should be extremely careful and circumspect. If the 'allegations contained in the FIR or complaint
-disclosses commission of some crime, the High : 'Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the ny CY ede 19 author of the FIR or the complainant. The High - | Court must also refrain from. making imaginary - journey in the real of possible harassment which may be caused - to the petitioner on account of investigation of the FIR or complaint. Such a course will result in -miocarriage of justice aod wouid enourage those accused of committing crimes to repeat the game. However, if the High Court. i 28 'satisfied that the complaint . does not disclose. commission of any offence or a prosecution is haired ty lumitation or that the "proceedings of criminal case would result in failure of justice,. then it may exercise inherent r power under S. 482, Cr.P.C"
in the case on hand, the State being a party to orders
- passed by this Court in W.P.Nos.24950-51/2003 dated 11.06.2003 and W.P.No.40385/2003 dated 07.10.2003 ". -. eamnot prosecute petitioners for extracting granite in land . | bearing survey No.83/3 of Deshavalli village.
The I-petitioner was extracting granite in the above said land in conformity with Rule 142 of the Explosives Rules, 1983 and he had not contravened terms of license wield -
20 granted to him. I-petitioner had engaged one 'Mukthar :
Ahmed, who had held license to use explosives for lasting . operations and also held short-firer's pernuit to carry out blasting operations. 'These facts have heen admitted by the State in W.P. Nos. 24950-8 51 /2008 and 'WP No-40985/ 2003.
13. The offence under section, OBI) of the Act is punishable, with imprisonment of two years or with fine.
According to Schedule-it of Cr.P.C., this offence is a non- cognizable offence. "The "Investigating Officer, without obisining permission from the Magistrate as required under a _ section 155(2) CrP.c., had investigated the matter and : : : subznitted inal report against petitioners. The Investigating Officer being complaimant himself has investigated the case and submitted final report.
| This Court in the case of Sudarshan Manchanda vs. " Slate of Kamataka, reported in 1979(2) Kar.LdJ. 449, has held:- | "Under section 155(2) CrP.C., any investigation by a police officer into a non- hl pnd 21 cognizable offence without the requisite. . | permission or order of the Magistrate wouki be one without jurisdicticn.".
This Court has' quashed prosecution initiated therein for violation of mandatory, provisions of section 155(2) Cr.P.C., , _--
The Dethi High Conart in the cose of Jugal Kishore and another. Vs. 'Slate, reported in 1972 Cr. Led. 371, has hekd:-
| "an offence under $.504 LP.C. being a hon-cogrizable offeuce a police officer has no power to investigate it unless he has received the oe information about the commission of the offence
- and 'bas obtained an order from a Magistrate in = 'ines. of $.155(2). The offence should stand committed before the information is received in : tenos of S.155(1). Where the report of the C.I.D. on the basis of sanction to investigate under S.155(2) nowhere mentioned that the posters in question had provoked any person no offence is committed within the meaning of S.504 IP.C. and the sanction to investigate is unauthorised.
If the investigation at its source was unauthorised by S.155 of the Code, the nature wo drrond of the evidence collected from certain persons er, - . the nature of the information which may have a been given to the 'police, would be -of no relevance and the charge framed under S. 504 I.P.C. on the basis of such investigation is liable to be quashed under S .439 Criminal Procedure Code."
the: cose oa hand, 1, tavestigating Officer had investigated and. submitted final report for a non-cognizable offence, without obtaining permission of learned Magistrate, in terms: of | section 18502) Cr.P.C. Therefore, final report submitted against petitioners is vitiated and continuation of | - proceedings before Court below would be abuse of process of , Court.
14. The Investigating Officer being a complainant a himself had investigated the case. Thus, entire investigation . is rendered suspicious. The documents filed under section 173(5) Cr.P.C., accepted on their face value do not constitute an offence punishable under section 9B(b) of the Act. The investigation was maliciously initiated after I-petitioner was rh adr ter 23 successful m W.P.Nos.24950-51 / 2003 dated . 11.06. 2003 | and W.P.No. 40385/ 2003 dated 07. 10. 2003. 'The final report .
submitted for a non-cognizable offence, without obtaining permission from the judicial magistrate under section 155 (2) Cr.P.C., 18 vitiated. Therefore. coniinusiion of criminal proceedings. ayainet petitioners would be abuse of process of Court.
5. For these reasons, IL pass the following:-
ORDER The criminal petition is accepted. The complaint os registered in "Crime No. 48/2003 by Santhemarahalli Police | a and final report submitted therein, pending on the file of Addl. Civit Judge (JUr.Dn.) & JMFC, Chamarajanagar, are os quashed.