Karnataka High Court
Sri S N Ravi vs The State Of Karnataka on 15 September, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.444 OF 2010
BETWEEN:
SRI.S.N.RAVI
S/O. LATE NANJEGOWDA,
AGED ABOUT 35 YEARS,
LAB TECHNICIAN ON CONTRACT BASIS
& RUNNING MALNAD CLINICAL LABORATORY,
VALLABHAI ROAD,
R/AT SOMANAHALLY,
HOLE KOPPAL POST,
HASSAN TALUK & DISTRICT
... APPELLANT
(BY SRI.PAVAN KUMAR.G, ADV. FOR
SRI.S.SHANKARAPPA, ADV.,)
AND:
THE STATE OF KARNATAKA
BY LOKAYUKTHA POLICE,
REPTD., BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE
... RESPONDENT
(BY SRI.B.S.PRASAD, SPL.PP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL
SESSIONS & SPECIAL JUDGE, HASSAN IN SPECIAL CASE
NO.49/2007 DATED 13.04.2010 AND THEREBY ACQUIT
THE APPELLANT FROM THE CHARGES LEVELED AGAINST
HIM AND ETC.,
THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the Judgment of conviction and Order of sentence dated 13.4.2010 in Special Case No.49/2007 passed by the Prl. Sessions and Special Judge, Hassan, whereby the appellant/accused is convicted for the offence punishable under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('Act' for short) and is sentenced to undergo R.I. for a period of one year and fine of Rs.3,000/-. 3
2. The charge against the appellant/accused is that the accused being a public servant while working as a Lab Technician at Krishna Government Hospital, Vallabhai road, Hassan, on 17.12.2005 was found running a Clinical Laboratory in the name of style 'Malnad Clinical Laboratory', without valid permit and was also found in possession of disposable syringes, hand gloves, Malaria tablets, dettol liquid and cotton rolls, which were supplied to the Krishna Govt. Hospital and thereby abused his position and committed the offence punishable under Section 13(1)(c) r/w Section 13(2) of the P.C.Act. Since he was found in possession of disposable syringes, hand gloves, etc., which were entrusted to him, in his capacity as Lab Technician at Krishna Government Hospital and had misappropriated the same for his personal use, charges under Sections 168 and 420 of IPC were also framed against the accused. 4
3. The accused denied the charges and faced trial. In order to bring home the guilt of the accused, the prosecution examined 9 witnesses as PWs 1 to 9, relied on 28 documents marked as Exs.P1 to P28 and the material objects at MOs 1 to 20. The accused took up the defence of total denial and did not adduce any oral or documentary evidence on his behalf.
4. On consideration of the above material, the trial Court was of the view that the prosecution has proved its case insofar as the offence punishable under Section 13(1)(c) r/w Section 13(2) of P.C. Act is concerned and accordingly convicted the accused and sentenced him for the said offence. However, with regard to the offences under Section 168 and 420 of IPC, the trial Court has held that the evidence produced by the prosecution is not sufficient to establish "entrustment" within the meaning of Section 5 168 of IPC and further, the prosecution having failed to establish that the accused was engaged in running the Laboratory while working as a Government servant and also failed to establish the ingredients of cheating acquitted the accused of the above said offences under Section 168 and 420 of IPC.
5. I have heard the learned counsel for the appellant Sri.Pavan Kumar.G and Sri.B.S.Prasad, learned SPP for the respondent and examined the records.
6. Learned counsel for the appellant contends that the conviction recorded by the trial Court is patently illegal and opposed to the settled cannons of Criminal Law. The investigation was undertaken without reducing the information into writing. PW-8 proceeded to conduct the investigation without registering the First Information Report. The very 6 same Officer continued with the investigation contrary to the mandate contained under Section 154 of the Cr.P.C. Therefore, the entire proceedings are vitiated and hence, on this ground alone the impugned Judgment is liable to be set-aside. Learned counsel has further contended that the prosecution has failed to prove that the accused was the owner of 'Malnad Clinical Laboratory' and that he was instrumental in running the said Laboratory at the time of alleged raid. The seizure of articles at MOs 1 to 8 were not legally proved. The prosecution has failed to establish that the material objects seized from Malnad Clinical Laboratory were supplied to Krishna Government Hospital and the same were found in the possession of the accused. There is no such evidence on record. Therefore, the trial Court has committed a grave error in convicting the accused for the offences under Section 13(1)(c) r/w Section 13(2) of P.C.Act. In 7 support of his contention, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of Mohal Lal -v- The State of Punjab (AIR 2018 SC 3853) wherein the Hon'ble Supreme Court has held that the Informant and investigator cannot be the same person and thus he pleads for reversal of the impugned Judgment and for acquittal of the accused/appellant.
7. Refuting the submissions, Sri.B.S.Prasad, learned SPP would contend that the material collected by the investigating agency clearly establish the guilt of the accused. The incriminating drugs and articles were seized from the possession of the accused. In the cross-examination of PW-6, an employee engaged by the accused, it is brought out that she was employed by the accused. Therefore, there is sufficient material to show that at the relevant point of 8 time, the accused, though working as a Government servant, was engaged in running a private business by name 'Malnad Clinical Laboratory' without any permission, contrary to the terms of his employment. Therefore, all the necessary ingredients of Section 13(1)(c) of the P.C.Act have been proved by the prosecution. Insofar as the illegalities or defects pointed out by the learned counsel for the appellant in conducting the investigation without registration of the FIR, learned SPP contends that the said illegality even if accepted, does not vitiate the trial unless the accused is able to establish that on account of such defect, he has suffered any prejudice. Learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of Vinod Kumar - v- State of Punjab reported in AIR 2015 SC 1206 and with reference to paragraph 26 of the Judgment, would contend that there is no inflexible rule that 9 whenever a Police Officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. The question of bias would depend upon the facts and circumstances of each case. The accused has not brought out any circumstances to show that on account of non- registration of FIR, any prejudice or bias has been caused resulting in failure of justice. In the absence of any such material, solely on the basis of the contention urged by the appellant, the well considered Judgment rendered by the Court below cannot be interfered with. Learned counsel has taken me through the evidence adduced by the prosecution and has emphasized that having regard to the material produced by the prosecution which is duly supported by the seizure of the incriminating evidence from the Laboratory run by the accused, the impugned Judgment is not required to be interfered with. 10
8. I have bestowed my careful thought to the rival submissions made at the Bar and have carefully examined the record.
9. The first contention urged by the learned counsel for the appellant that the entire proceedings are vitiated on account of serious infirmities and illegalities in the investigation, in my view, deserves to be accepted. PW-8, the Investigating Officer has admitted in his evidence that on receiving the credible information on 17.12.2005 at about 12.30 Noon, he secured the panch witnesses viz., CW-2 Jagadish, CW- 3 Channakeshava and proceeded to Malnad Clinical Laboratory. PW-6, Smt.Jyothi was present in the Laboratory and on enquiry, she told PW-8 that the said Laboratory was run by the accused. PW-8 has stated that he conducted mahazar at the spot and seized MOs 1 to 22 viz., ISKON surgical Ltd. Prikon 11 syringe with needles (12 Nos.), an empty box, used syringe box, unused syringe needles, Life Aid box in 8 hand gloves pockets, Prabha surgical cotton rolls, White plastic container containing dettol and white plastic box. Thereafter, he arrested the accused and recorded the statement of PW-6, Smt.Jyothi as per Ex.P19 and returned to the Police Station. According to this witness, thereafter he lodged a complaint as per Ex.P22 and registered the FIR. The further evidence of PW-8 indicates that after registration of the FIR, he conducted further investigation and on 19.12.2005 conducted a mahazar in Krishna Government Hospital and seized an Apex telephone index diary, D.L. of accused, Book-let of Malnad Clinical Laboratory, details of patient register as at Exs.P3 to 6 and conducted mahazar Ex.P2 on 19.12.2005. On the very same day, he recorded the statements of CWs 3, 4, 6, 10, 11, 13 and 14. On 12 21.12.2005 he recorded the statement of PW-2 Dr.K.S.Venkatesh. In the course of investigation, he collected the property documents relating to the Malnad Clinical Laboratory and on 26.9.2006 handed over the case file to PW-9 for further investigation.
10. The above evidence clearly supports the contention of the accused that PW-8 was the Informant, as well as the investigating Officer. According to PW-8, on 17.12.2005 at 12.30 Noon, he received credible information, but there is nothing on record to show that PW-8 reduced the said information either in the case diary or in the form of a requisition to his superior officers. Section 154 of Cr.P.C. requires a Police Officer to reduce into writing any information received by him and thereafter register the case, if any cognizable offence is made out. There is absolutely no explanation by PW-8 as to 13 why the information received by him could not be reduced into writing.
11. A reading of the evidence of PW-8 indicate that there was sufficient time for him to make necessary entry in the case diary or to record the information in the form of FIR before proceeding to the spot as required under Section 154 of Cr.P.C. The circumstances brought out in his evidence suggest that there was no urgency whatsoever which required PW-8 to get into action without registering the FIR This lapse, in my view, seriously dents the case of the prosecution.
12. Be that as it may, the evidence of PW-8 indicates that after the raid, PW-8 himself continued with the investigation and recorded the statements of material witnesses. The subsequent seizure relied on by the prosecution was also effected by PW-8. As a 14 matter of fact, the entire investigation has been conducted by PW-8. PW-9 has merely submitted the final report to the Court. He has not conducted any investigation into the matter. Learned SPP, however, sought to justify the action of the Investigating Officer on the ground that the action of the Investigating Officer has not caused any bias and has not resulted in any prejudice or injustice to the accused and therefore the said defects cannot pave way for the acquittal of the accused, if he is otherwise found involved in the alleged offences. In support of his argument he has relied on the Judgment in Vinod Kumar's case (supra) and with reference to paragraph 26 has emphasized that unless the accused is able to show any bias or prejudice, solely on the ground of defect in the investigation, the case of the prosecution cannot be discarded.
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13. I have gone though the above decision. In the said case, the Investigating Officer was a member of the raiding team and he had sent the report to the Police Station and thereafter, he carried a formal investigation. It is relevant to note that in the said case, investigation was done by the very same Officer who registered the FIR, but in the instant case, even before registration of the FIR, PW-8 has conducted substantial part of the investigation including seizure of the incriminating material. Therefore, the ratio laid down in the said case cannot be applied to the facts and circumstances of the present case. Even otherwise, in the said case the Hon'ble Supreme Court has observed that the question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, that whenever a Police Officer proceeds to investigate after registering the FIR on his own, the 16 investigation would necessarily be unfair or bias. It is held therein that the formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor.
14. In this context, it may be pertinent to refer to the recent decision of the Hon'ble Supreme Court in the case of Mohan Lal (supra) wherein in paragraph 14 the Hon'ble Supreme Court has explained thus:
"In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give 17 rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion."
This decision, in my view answers to the contention raised by the learned counsel for the respondent that unless the accused is able to show bias or actual prejudice, he cannot assail the conviction on the 18 ground of defect in the investigation. The very fact that PW-8, Investigating Officer himself proceeded to investigate into the matter, that too without reducing the information in the case diary, conducted part of the investigation without registering the FIR and substantial investigation even after registration of the case, therefore, manifests clear case of bias. Therefore, in my view, solely on this ground, the impugned Judgment is liable to be set-aside.
15. Even on merits, the case of the prosecution is that the accused being a public servant was found running a Laboratory without valid permission. The only material relied on by the prosecution in support of this charge is the seizure Mahazar, Ex.P1. But as already discussed above, Ex.P1 is legally inadmissible in evidence. The said document has come into existence prior to the registration of the case and 19 therefore, no reliance could be placed on the said document. There is no independent material to show that at the relevant point of time, the accused was running the said Laboratory as its proprietor or in any other capacity. The only witness examined by the prosecution in proof of this fact, viz., PW-6, has failed to support the prosecution. The prosecution has failed to elicit from PW-7, owner of the building that at the relevant point of time, the said premises was leased to the accused for running the Laboratory. No licence has been produced to show that any Laboratory or any such business was being carried on in the said premises. As a result no material was available to substantiate the fact that accused was running a private Lab in violation of his terms of employment.
16. The trial Court has failed to consider all the above facts and circumstances of the case. The trial 20 Court has based its conclusions solely on the evidence of PWs 1 and 8. PW-1 was a panch witness. His evidence is let in to prove the seizure of MOs 1 to 8. For the reasons discussed above, this seizure is inadmissible in evidence. The evidence of PW-8 is tainted and biased. As a result, the prosecution was not left with any reliable evidence to sustain the charges leveled against the accused. Hence, the impugned Judgment of conviction and order of sentence being contrary to the material on record, is liable to be set-aside.
Accordingly, the appeal is allowed. The impugned Judgment of conviction and Order of sentence dated 13.4.2010 in Special Case No.49/2007 is hereby set-aside. The appellant/accused is acquitted of the charges under Section 13(1)(c) read with Section 13(2) of the P.C.Act.
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The bail bond of the accused stands cancelled and the surety gets discharged.
Sd/-
JUDGE ln