Karnataka High Court
Sri. Girishchandra S/O Veerabhadrayya ... vs The State By Lokayuktha Police on 5 February, 2013
Equivalent citations: 2013 CRI. L. J. (NOC) 368 (KAR.), 2013 (2) AKR 611
Bench: K.Sreedhar Rao, S.Abdul Nazeer
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF FEBRUARY 2013
PRESENT
THE HON'BLE MR.K.SREEDHAR RAO, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
CRIMINAL PETITION NO.15941/2012 C/W
CRIMINAL PETITION NO.15852/2012
R
CRL.P.NO.15941/2012
BETWEEN
1. SRI GIRISHCHANDRA
S/O VEERABHADRAYYA HIREMATH
AGED ABOUT 44 YEARS
WORKING AS SUB-REGISTRAR
SHAHAPUR, R/O OLD JEWARGI ROAD
GULBARGA
2. SRI YANKANNA
S/O MONAPPA SHAHUKAR
AGED ABOUT 48 YEARS
WORKING AS SECOND DIVISION ASSISTANT
OFFICE OF THE SUB-REGISTRAR
SHAHPUR, R/O JAINAPUR
TQ: SHAHPUR
... PETITIONERS
(BY SRI M S BHAGWAT & SRI RAVI B PATIL, ADVS.,)
AND
THE STATE BY LOKAYUKTHA POLICE
YADGIR, REP BY ITS INSPECTOR OF POLICE
... RESPONDENT
(BY SRI B A BELLIAPPA, ADV.,)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIRST
INFORMATION REPORT BEARING CRIME NO:8/2012
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REGISTERED BY THE RESPONDENT-POLICE ON THE
FILE OF THE PRINCIPAL DISTRICT & SESSIONS JUDGE &
SPECIAL JUDGE, YADGIR (ANNEXURE-A) AND ALL
FURTHER PROCEEDINGS THEREON INSOFAR AS THE
PETITIONERS (ACCUSED NOS.1 & 2) ARE CONCERNED.
CRL.P.NO.15852/2012
BETWEEN
SRI MODINASAB AMMULAL HAWALDAR
AGED ABOUT 39 YEARS
S/O AMMULAL HAWALDAR
R/AT C/O JOGI, RETIRED TEACHER
BASAVA NAGAR, BASAVANABAGEWADI
BIJAPUR DISTRICT
... PETITIONER
(BY SRI M S BHAGWAT & SRI RAVI B PATIL, ADVS.,)
AND
THE STATE BY LOKAYUKTHA POLICE
BIJAPURA DISTRICT, BIJAPURA
... RESPONDENT
(BY SRI B A BELLIAPPA, ADV.,)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIRST
INFORMATION REPORT IN CRIME NO:9/2012 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS &
SPECIAL JUDGE, BIJAPUR (ANNEXURE-A) AND ALL
FURTHER PROCEEDINGS THEREON INSOFAR AS THE
PETITIONER IS CONCERNED.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS THIS DAY, ACTING CHIEF JUSTICE MADE THE
FOLLOWING:
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ORDER
K.Sreedhar Rao, Ag.CJ (Oral) The generic question as to whether the investigating officer should first register the FIR and thereupon embark upon investigation is seized by the Larger Bench of the Supreme Court in the case of LALITA KUMARI vs STATE OF U.P. AND OTHERS [(2012)4 SCC 1]. There were conflicting views with regard to the registration of FIR. One view is to the effect that the investigating officer has discretion to make a preliminary enquiry before registering the FIR. The counter view was to the effect that the investigating officer has no discretion but to register the FIR and thereafter to embark upon investigation.
2. In Criminal Petition No.15941/2012, the facts reveal that the investigating officer gets credible information that in the Sub-Registrar's office, the Sub- Registrar is demanding and accepting bribe from the public, who are presenting their documents for registration. The investigating officer, without registering the said information, proceeds to the Sub-Registrar's office. Upon search of the Sub-Registrar and other officials, he does not find any money in their possession, but from other persons 4 who are in the office and who are not the officials, substantial sums are found in possession. The investigating officer draws up mahazar, seizes the money from the said persons and thereafter arrests the Sub- Registrar, the official staff and all others from whom the amount is seized, comes back to the police station and registers the FIR.
3. The facts in Criminal Petition No.15852/2012 are that on 20.07.2012, the investigating officer gets credible information about the illegal demand and acceptance of bribe by the Sub-Registrar, Basavanabagewadi. The investigating officer proceeds to the Sub-Registrar's office and seizes cash of Rs.11,550/- which is said to be in the possession of accused No.2 - Document Writer and comes to know that accused No.1 Sub-Registrar is collecting the said amount through accused No.2 from the persons registering the documents. Thereafter, mahazar is drawn, accused persons are arrested and brought to the police station and a case is registered.
4. The learned Single Judge, in the above criminal petitions, has gone into the question as to whether 5 registration of the FIR is a condition precedent to embark upon investigation and has made the following observations in para 26;
"26. In the aforesaid circumstances, as the registration of a crime is not a condition precedent in the circumstances stated above, with all respect at my command to my learned brother, I disagree with a view expressed therein. Therefore, it appears just and proper that these matters be placed before the Division Bench or a Larger Bench to consider the aforesaid aspects.
Hence, the Registry is directed to place these matters before the Hon'ble Chief Justice to refer these matters to a Division Bench or Larger Bench."
The learned Single Judge has differed with the view taken by this Court in Criminal Petition No.3213/2012 and connected matters and therefore referred the matter to the Division Bench for consideration of the substantial question of law as to, "whether the investigating officer is bound to register the FIR and thereafter embark upon investigation".
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5. The normal protocol of investigation in trap cases commences with recording of a complaint of a specific allegation against the specific public servant. The investigating officer registers the complaint, would send the copy of the FIR to the jurisdictional Court and two panch witnesses are secured from the Government Departments. The demonstration of the effect of phenolphthalein powder on the sodium carbonate solution would be given by colour test by smearing phenolphthalein powder on the bait money produced by the complainant. Sodium carbonate solution is prepared in two bowls, the complainant is asked to handle the tainted currency notes and later on asked to dip his fingers in the solution, which would turn pink. This scientific exercise is employed to corroborate the version of acceptance of bribe or in other words, to infer that the accused person has handled the bribe money.
6. One of the panch witnesses would be sent as a shadow witness and the other panch witness is retained with the investigating officer. The complainant and the shadow witness would be asked to go and meet the accused. The shadow witness should keep himself close and discreet in the company of the complainant. The 7 tainted currency notes are given to the complainant with specific instructions to hand over the same upon demand. The complainant and the panch witness would go and meet the accused and they are followed by the investigating officer, his staff and the other panch witness. If the complainant, after meeting the accused, pays the money on demand, the shadow witness is employed to corroborate the version of demand and acceptance of bribe money and to testify the circumstance relating to demand and acceptance of bribe money.
7. The complainant, after the trap, gives signal, the investigating officer and the other panch witness would come and the hands of the accused are held, sodium carbonate solution is prepared in two separate bowls, both the hands of the accused are made to dip in the solution and if the colour turns pink, it is a strongest circumstance to suggest that the accused has received or handled the tainted currency notes. The accused will be asked to produce the bribe money. Thereafter, seizure mahazars are held. The investigating officer, after completing the other formalities of investigation, places the final report before 8 the sanctioning authority and after sanction, files the final report before the Court.
8. In trap cases, the question of surprise raid is not conceivable and tenable unlike investigation in the case of an offence relating to assets which are disproportionate to known source of income. The method of surprise raid is totally impertinent and irrelevant in a trap case. Otherwise, the investigating officers would become arbitrary and could create unwarranted commotional atmosphere in the public offices. As we could see in the present case, there is no complaint from the person giving illegal gratification. No evidence is conceivable regarding demand and acceptance of bribe. The mere possession of some money in the hands of document writers would not suggest or substantiate the offence of demand and acceptance of illegal gratification by the Sub-Registrar and the officials of the office of the Sub-Registrar.
9. Therefore, in all trap cases, it is just and necessary that recording of complaint and submission of FIR to the jurisdictional Court before embarking upon the protocol of raid is mandatory. If this type of investigation by surprise raid in trap cases is permitted, it would 9 demoralize the public administration and the SHOs of Lokayuktha police stations would tend to misuse the powers of investigation. It is therefore necessary that the Director General of Police shall properly educate all SHOs of Lokayuktha Police Stations in the State about the legal requirements of investigation to be complied in trap cases. Besides, written guidelines be laid down to be followed in the protocol of investigation in a trap case. Non-adherence to protocol of investigation by the investigating officer should necessarily result in disciplinary action.
10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a police officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The police officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration 10 of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR.
11. In the context of facts of the case on hand, the conduct of investigation by surprise raid in the absence of FIR is untenable. Accordingly, the substantial question of law formulated for consideration is answered in the affirmative.
With these observations, the matter is remitted to the learned Single Judge for disposal in accordance with law.
The Registry is directed to send a copy of this order to the Home Secretary and the Director General of Police to comply with the observations made above.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE bkv