Karnataka High Court
Shivappa And Ors vs The State on 5 March, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 05TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRIMINAL PETITION No.201162/2017
Between:
1. Shivappa S/o Chandappa Guttedar,
Age: 27 years, Occ: Driver (KA-34-C-3588),
R/o Hirapur, Kalaburagi - 585 103.
2. Channappa S/o Bhimraya Hugar,
Age: 29 years, Occ: Driver (KA-32-C-4497),
R/o Village Nedalagi, Tq: Jewargi &
Dist: Kalaburagi - 585 325.
3. Shivalingappa S/o Gollalappa Bhavikatti,
Age: 45 years, Occ: Owner,
R/o Village Mayur, Tq: Jewargi,
Dist: Kalaburagi - 585 325.
... Petitioners
(By Sri S.A. Kumbar & Sri B.S. Nasi, Advocates)
And:
The State of Karnataka
Through Devalagangapur Police Station
and Additional Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench - 585 325.
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
2
This Criminal Petition is filed under Section 438 of
Cr.P.C., praying to allow the petition and enlarge the
petitioners on bail in the event of arrest in Crime
No.144/2015 for the offences punishable under
Sections 42 and 43 of Karnataka Minor Mineral Consistent
Rules 1994 & Sections 4(1A), 4(1) of Mines and Minerals
Regulation of Development Act, registered by
Devalgangapur Police Station Dist. Kalaburagi in
C.C.No.200/2016 pending before the Civil Judge (Jr.Dn) &
JMFC Court, Afzalpur, Gulbarga.
This petition is coming on for Orders this day, the
Court made the following:-
ORDER
This criminal petition is by accused No.1 to 3 in Crime No.144/2015 registered with Devalagangapur Police Station, within the jurisdiction of JMFC Court, Afzalpur, Kalaburagi.
2. The complaint is registered against the aforesaid three persons for the offences punishable under Sections 42 and 43 of Karnataka Minor Mineral Consistent Rules 1994 and under Section 4(1A), 4(1) of MMDR (Mines and Minerals Regulation of Development) Act, 1957.
3. The sum and substance of the complaint is that on 29.10.2015 at about 6.30 p.m. when Sri Shakeel I. 3 Angadi, PSI of Devalaghanagapur Police Station was on patrolling duty near Manikeshwari Circle he noticed two tippers carrying minor minerals/sand coming from Tellur Village. He would state in his report dated 29.10.2015 which is at Page No.9 of this petition that the said vehicles were stopped, noticed that the persons in the tipper were carrying sand contrary to the terms of the permit as mentioned in the aforesaid report. In the report he would also state that he enquired the names of the drivers of the tipper and in the presence of panchas he seized both the tippers along with minor minerals/sand loaded in that and thereafter he reached his station at about 7.55 p.m. and reported the same to Station House Officer along with seizure panchanama. However, there is no reference to arrest of the accused from whom he has collected the particulars, which is seen in the complaint registered in Crime No.144/2015.
4. Thereafter, it is seen investigation is conducted and charge sheet is filed against accused Nos.1 to 3 herein 4 on 06.11.2015 vide charge sheet No.119/2015. In the said charge sheet the Investigating Officer would state that after the vehicles were apprehended at 6.30 p.m. on 29.10.2015, the accused who are drivers were present there would state that they are carrying the sand at the instructions of the owner of the vehicle by showing a document of royalty which is time barred and ran away from the place of incident. The aforesaid reference to accused drivers running away from the place when they were apprehended is not seen in the complaint registered in Crime No.144/2015. However, it would find a place in the charge sheet. Thereby clearly indicating that the manner in which the vehicle is seized, the investigation is conducted and charge sheet is filed is not proper. There is a clear attempt on the part of the Police Inspector Sri Shakil I.Angadi in manipulating the records i.e., registering of the complaint in Crime No.144/2015 and filing of charge sheet. Though records would indicate the presence of petitioners at the place of the seizure of the vehicle on 29.10.2015 at 6.30 p.m., there is no reason 5 stated in the complaint for not arresting them. The reason given in the charge sheet is totally a false and concocted. The result of it is seen in the subsequent conduct of the police officer.
5. The consequence of that is clearly seen in this proceedings. The petitioner No.1 to 3 approached Sessions Court seeking their enlargement on bail in Crl.Misc.No.1210/2017 on the file of Principal District and Sessions Court at Kalaburagi, where the very same police who are respondent herein would instruct the prosecution i.e., Public Prosecutor to oppose the application filed under Section 438 of Cr.P.C., for anticipatory bail and insist that the same should be opposed. The said application is dismissed vide order dated 11.09.2017. Thereafter, the present petition is filed.
6. Here again the instruction that is given to the prosecution-State is to oppose the petition filed under Section 438 of Cr.P.C. This Court is unable to understand the conduct of prosecution when the accused were present 6 before the officer who conducted raid by stopping the vehicle on 29.10.2015, he does not arrest them and he does not give reason for allowing them to go scot-free, though the vehicles are seized. Subsequently, in the charge sheet filed by Sri Bhimaraya Patil, ASI of said Police Station would state that that they ran away. The said Bhimaraya Patil, ASI who is present before the Court would admit that he was not present when the vehicles were apprehended on 29.10.2015. He is not in a position to give the information as to how the insertion in the charge sheet that the driver of tipper ran away from the place as come into place.
7. When the entire sequence is looked into, it is clear that the accused in this proceedings is not only the petitioners herein but also the police officers who seized the vehicle, conducted investigation in to the said crime. They have their hand in this offence of illegal transportation of sand. If at all the PSI, Shakeel I.Angadi, was sincere, when he stopped the vehicle, nothing 7 prevented him in taking accused Nos.1 and 2 in to custody who are drivers of the vehicle. This Court can understand that arresting of the owner may not be possible at the time of seizure of the vehicle, he could have been apprehended later but there is nothing on record to show that there was an attempt to apprehend the owner at a later stage.
8. Be that as it may the reason for allowing the accused Nos.1 to 3 to go scot-free is also not forthcoming in the said complaint registered in Crime No.144/2015, which is at the instance of P.S.I. There is nothing on record to show as to why they were not enquired from 29.10.2015 to this day i.e., for nearly 2 years 5 months is also not stated.
9. Subsequently the other person viz., Bhimaraya Patil, ASI, who investigated into the crime does not even know how and when the accused Nos.1 to 3 ran away from the place but he would answer that in his final report which is charge sheet dated 06.11.2015 and when he is asked as to why the police who were present therein did 8 not run after the accused to cache them, he pretends, he does not know about it. This is clear indication that in major crimes pertaining to sand mafia the role of police is seen at every stage, but for this the Sessions Court and this Court would not have been flooded with large number of petitions under Sections 438 of Cr.P.C., seeking anticipatory bail. These petitions disclose incompetence of police in apprehending the accused when they seized the vehicle. They not only do disservice to the society by allowing this kind of people to run away from the place of crime but also torture the courts below and this Court in flooding unwarranted litigation in criminals approaching this Court under Section 438 of Cr.P.C., seeking anticipatory bail as if it is birth right for them. This conduct of police have boldened the criminals to thrive at the cost of society, this should be stopped before it become uncontrollable.
10. In the fact situation, this Court direct the Inspector General of Police of North-East Range, 9 Kalaburagi to keep all these police officers under suspension, initiate departmental enquiry against them. This Court would add that if the role of these officers in said crime is confirmed they should also be arraigned as accused in the said proceedings. In fact it is seen that their role in sand mafia i.e. smuggling of sand without proper permit is glaring on the face of document produced before the Court. The manner in which these cases are registered, is only a name sake attempt to register the case for statistical purpose and not with an intention to stop the unbridled smuggling of sand.
11. With the aforesaid direction to the police, this Court would dismiss the petition filed by accused Nos.1 to 3 with an advise to them to surrender before the police immediately. However, it is needless to say that the concerned police shall make endavour to arrest these three persons within 15 days from today and report the same to this Court.
With such observation this petition is dismissed. 10 The police officers who are present before the Court pursuant to the direction issued by this Court are directed to affix their signatures to the order sheet and their signatures are to be identified by learned High Court Government Pleader.
Sd/-
JUDGE sn/sdu CT : RRJ