Karnataka High Court
Sri. Chandrashekhar Eligar vs The State By Lokayuktha Police on 14 March, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 14TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
WRIT PETITION NO.108338/2015 (GM RES)
BETWEEN
SRI. CHANDRASHEKHAR ELIGAR
S/O. HANUMANTHAPPA
AGE: 57 YEARS, R/AT: H NO. 27, SHIRUR PARK
2ND STAGE, NEAR AYYAPPA SWAMY
TEMPLE, VIDYA NAGAR, HUBBALLI,
WORKING AS SUPERINTENDING ENGINEER,
COMMUNICATION AND
BUILDING, (NORTH), DHARWAD DIST.
DHARWAD.
... PETITIONER
(BY SRI.M.S.BHAGWAT, ADVOCATE)
AND
1. THE STATE BY LOKAYUKTHA POLICE
R/BY ITS POLICE INSPECTOR
DHARWAD DISTRICT, DHARWAD
2. THE STATE BY LOKAYUKTHA POLICE
R/BY ITS POLICE INSPECTOR
CHITRADURGA DISTRICT,
CHITRADURGA-577 501.
... RESPONDENTS
(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
Section 482 OF CR.PC PRAYING TO QUASH THE COMPLAINT,
FIRST INFORMATION REPORT IN CRIME NO.4/2015 DATED
07.05.2015 AND ALL PROCEEDINGS BEFORE THE
RESPONDENTS POLICE (ANNEXURE-A AND B).
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THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.02.2017, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT PASSED
THE FOLLOWING:
ORDER
The present petition is filed seeking quashing of the First Information Report in Crime No.4/2015 registered by the respondent Lokayukta police, for the offence punishable under Section 13(1)(d) and 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act.
2. The brief factual aspects that emanate from the records are that:
The petitioner was appointed and working as Assistant Engineer in PWD Department since 1983 and later, on promotion he was posted as Superintendent Engineer on 30.3.2014.
It is the case of the prosecution that the Lokayukta police Chitradurga has received an information from ADGP, Lokayukta Bangalore, that some people are transporting huge amount in a Innova Car bearing Registration No.KA-01/G-4572 from Dharwad to Bengaluru and in fact, he requested the 3 Deputy Superintendent of Police, Karnataka Lokayukta, Chitradurga District to take appropriate action in this regard.
On the basis of such information, the Superintendent of Police, Karnataka Lokayukta,
Chitradurga, has rushed to the said spot along with his staff and found the said vehicle proceeding towards Bengaluru. The said vehicle was intercepted near toll plaza and found the petitioner inside the said car and he was transporting a huge amount of Rs.36,85,500/-. On enquiry, the said person has not given any reasonable explanation. Therefore, the Superintendent of Police has seized the said amount under mahazar and arrested the accused and went to the Dy.SP of jurisdictional Lokayukta Police and lodged a complaint stating the above said facts and requested the Lokayukta police to register a case.
The Deputy Superintendent of Police, Karnataka Lokayukta, Chitradurga, registered a case in Crime No.4/2015 for the offence punishable under Section 13(1)(d) and 13(1)(e) of the Prevention of Corruption 4 Act, 1988 and proceeded to investigate the matter. The Registration of the case is called in question before this Court on the ground that without registering a case, no investigation can be done and after part of the investigation being done, no case can be registered and therefore, the entire proceedings are vitiated and the same are liable to be quashed.
3. I have heard the arguments of the learned counsel Sri M.S. Bhagwat for petitioner and learned counsel Sri Mallikarjunswamy B. Hiremath for respondents.
4. As usual, the learned counsel Sri Bhagwat in a very effective manner submitted his arguments narrating various decisions on the question raised in this case. He relied upon various rulings in this regard. First of all, he has drawn my attention to the decision reported in (2011) 3 SCC 758 between Ashok Kumar Todi Vs. Kishwar Jahan and others for the purpose of showing this court as to what amounts to investigation. In the said case it is laid down that the Cr.PC contemplates several stages with reference to the 5 investigation. The Registration of a case, proceeding to the spot, ascertaining the facts and circumstances of the case, discovery and arrest of the suspected offender collecting of evidence relating to the commission of offence, recording of the statement of the witnesses, search, seizure and then formation of opinion by the investigating Officer and finally filing of the charge sheet are the recognised stages. There is absolutely no dispute with regard to the principle laid down in the above said case and the procedure to be followed under Code of Criminal Procedure.
5. He has also relied upon another ruling reported in Lalitha Kumari Vs. Government of UP and others reported in 2013 (8) Supreme 1 at para 111, it has held that -
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizance offence and no preliminary inquiry is permissible in such a situation and 6
(ii) If the information received does not disclose a cognizance offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is committed or not.
It is further held that, if the inquiry discloses the commission of a cognizance offence, the crime must be registered. The Police Officer cannot avoid his duty of registering the case if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. The court has also observed that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizance offence. The court has also observed that such preliminary inquiry is to be conducted depending upon the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are also enumerated. In that category, corruption cases are also included by the Hon'ble Apex Court.
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6. The learned counsel for the petitioner has also relied upon another decision reported in 2012(5) KLJ 545 (PARA 35) between L. Shankar Murthy and others Vs. State by Lokayukta Police, in which the court has held that - registering of a case upon information received, is a sine qua non before proceeding to take up the investigation. Non compliance by concerned Police Officer amounts to abuse of process of law and vitiates the entire proceedings. The same principle has also been laid down in a decision reported in 2013(5) KLJ 470 (DB) between Girishchandra and another Vs. State by Lokayukta Police, Yadgir. These two decisions are taken up before the Hon'ble Apex Court and the Hon'ble Apex Court has also confirmed the said findings of this court.
7. Relying upon the above said decisions, the learned counsel submitted seriously that, no case shall be registered before investigation, though cognizable offence has been disclosed in the information given by ADGP to the Superintendent of Police, Lokayukta, Chitradurga District. But, he has conducted the 8 investigation by conducting search and seizure of the amount in the Innova Car No.KA-01/G-4572 as well as arrested the accused and produced him before the Deputy Superintendent of Police for Registration of a case which is bad in law and therefore, it is liable to be quashed.
8. Per contra, the learned counsel for the respondents has contended that in view of Lalitha Kumari's case (noted supra), preliminary inquiry can be conducted if any doubt arises to the investigating Officer or the person who has entrusted with that work, whether any cognizable offence has been committed or not while conducting that preliminary inquiry, if he could ascertain after searching and seizing the vehicle that some offence is committed, then he can make such preliminary inquiry and thereafter he can lodge the complaint. He has submitted that in all the cases preliminary inquiry is not bad, it all depends upon the facts and circumstances of each case. In this regard, he has also relied upon a decision rendered by this court reported in KCCR 2015 PART II 1655 between 9 Ranganath Vs. State of Karnataka, wherein this court has observed that in all the cases, preliminary inquiry is not bad, it all depends upon the facts and circumstances of each case.
9. The learned counsel also relied upon another judgment of this court in Crl. Petition No.7053/2013 wherein this court has observed that the entire inquiry cannot be vitiated on account of non-Registration of FIR before the search and the general diary entries made prior to such proceedings can be treated as FIR.
10. Taking into consideration and after giving my thorough anxious consideration of the facts of the case, the decisions noted above, now I will examine whether preliminary inquiry conducted by Superintendent of Police, Lokayukta, Chitradurga, in this particular case amounts to an investigation or whether it is only preliminary inquiry to ascertain whether any cognizable offence is committed and the earlier information provided by ADGP did not disclose any cognizable offence. Therefore, it made the Superintendent of Police, Lokayukta, Chitradurga to further ascertain the 10 veracity of the said information and to ascertain whether any cognizable offence is committed, and thereafter he requested the Deputy Superintendent of Police to register a case, and whether such proceedings are vitiated by any illegality.
11. In view of the above said decisions, it is made abundantly clear that the Inquiry Officer or the investigating Officer who has received any information or the complaint or FIR. On plain reading of the same, if it discloses any cognizable offence, then it is the bounden duty of the Police Officer to register a case u/s.154 of Cr.PC. If suppose the facts are not clear, but they are hazy are not fully made out and if there is any confusion, the officer can very well make a preliminary inquiry in order to satisfy himself that a cognizable offence is in fact committed in order to register a case. In such an eventuality, he can proceed with the inquiry and such preliminary inquiry cannot at any stretch of imagination be called as preliminary investigation by the officer. The court should also bear in mind while dealing with corruption cases and also bearing in mind 11 the impact on the society which is spreading like a cancerous disease, the court should be very careful and cautious in appreciating the material on record before adverting to quash such proceedings. The court should be vigilant to ascertain as to whether the proceedings are so vitiated and the irregularity committed by the investigating agency or the inquiry agency amounts to illegality which prejudices the accused and also results in any miscarriage of justice, then only such proceedings are liable to be quashed. It should also be borne in mind that, merely because there is some irregularity, in the inquiry or in registering the case or investigating the matter, such proceedings cannot itself lead to an inference that the accused is prejudiced. It should also be borne in mind that if the facts of the case are understood, on plain reading, there should be no doubt with regard to the allegations constituting any offence in law for the time being in force so that it becomes inevitable for the officer to register a case before proceeding to investigation. If there is any semblance of doubt is created, benefit of doubt should 12 be given at that preliminary stages in favour of the person inquiring into the matter. Therefore, in this background, bearing in mind the above said principles, this court has to ascertain the factual matrix of this case.
12. Now, returning to the information given by ADGP, the alleged preliminary inquiry has been done by Superintendent of Police, Lokayukta. In the FIR, it is stated that on 7.5.2015, in the morning, the Superintendent of Police, Lokayukta, Chitradurga, received a direction by the Lokayukta ADGP, Bangalore, stating that huge amount is being transported in a Innova car. Therefore, ADGP has directed the Superintendent of Police, Lokayukta to take appropriate action. Except this version, nothing is forthcoming as to what exactly the information received by Superintendent of Police, Lokayukta other than the one mentioned in the FIR. Therefore, if this particular portion of the direction issued by Lokayukta ADGP is understood in proper manner, such information does not disclose any offence much less any cognizable 13 offence. Mere transporting of huge amount in a vehicle does not amount to a cognizable offence or any offence. If the said amount is shown to be unexplained amount or it is being transported for the purpose of any illegal activity, then only it amounts to cognizable offence which can be taken note of by the Police Officer. Therefore, in order to inquire into the matter to ascertain whether such information is proper and correct and then, whether such transportation of the money in the vehicle amounts to any offence and that too amounts to a cognizable offence, the Superintendent of Police proceeded for preliminary inquiry.
13. In the FIR, it also mentioned that after reaching that particular spot, the Superintendent of Police, Lokayukta has intercepted the said vehicle and found Rs.36,85,500/- in the said vehicle and he inquired the accused petitioner who was in the said vehicle with regard to the possession of huge amount as he has not given any satisfactory answer, then only, the said Inquiry Officer has come to the conclusion that 14 the said money is being transported either for any illegal activity or it amounts to an amount un-explained with a public servant and therefore, without giving any opportunity to the accused to escape from the said place and without allowing the said person to escape from the clutches of the police along with the money, inquiring officer has to take possession of the said money and the accused. Perhaps he might have felt that without there being a record, he cannot seize or take the custody of the vehicle. Therefore, for that reason, he has drawn up a mahazar and taken the custody of the money and the vehicle and immediately without any delay he went to the Lokayukta police and lodged the FIR.
14. On analysing the above said factual aspects, in my opinion, the said act of the Superintendent of Police in any manner does not fall under the category of investigation but a preliminary inquiry. When these materials are produced before the investigating Officer and after registering the case, he has to enquire into the matter as to how the petitioner has come in 15 possession of such huge money, whether it is an unexplained amount or whether it amounts to amassing of wealth during his tenure as a public servant and whether he has amassed wealth other than this amount etc., had to be investigated because it is stated in the FIR itself that the Inquiry Officer was satisfied that the said amount might have been acquired by means of corrupt means by the petitioner and that requires to be investigated. Therefore, on facts, I do not find any substantial reasons to come to the conclusion that the above said acts of the Superintendent of Police amounts to an investigation.
15. In the above backdrop, it is worth to refer some relevant provisions under the Code of Criminal Procedure, where the police can search, seize and arrest a person without a warrant when suspicion arises with regard to the conduct and complicity of the accused persons in any crime.
16. Section 41 of Cr.PC deals with arrest of persons. Section 41(1)(a) & (d) are the relevant 16 provisions, which are required to be considered by this court, which reads as follows:
"Sec.41(1)(a) Who commits, in the presence of a police officer, a cognizable offence;
(b) to (c) : xxx xxx xxx xxx xxx xxx
(d) in whose possession anything is found
which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
17. The above said section confers very wide powers on the police that they may act swiftly for the prevention or detection of cognizable offences without the formality and delay. The court should therefore be particularly vigilant to see that the powers are not in any way abused or lightly used for the satisfaction of private feelings or of designing the complainants. As observed in a case, the arrest and detention of persons and seizure of the properties which are found by the police, in my opinion, is not in exercise of abuse of 17 the powers entrusted to them under Section 41 of Cr.P.C. Of course, the arrest of a person without justification is one of the most serious encroachments upon the liberty of such person. The duty of the police when they arrest without warrant, is no doubt, to be quick to see the possibility of crime , but equally they ought to be anxious to avoid mistaking the innocent for the guilty. The power given is discretionary to the police to arrest or search and seize the properties. However, such powers are to be exercised due to the exigency and circumstances, even under some mis- conception if the police officer has arrested and seized certain articles, it will not vitiate the proceedings, but that will also fall under the above said provisions.
18. Section 51 of Cr.PC refers to what the Police Officer should do if a person is arrested under Section 41 of the Code, which reads as follows:
"Sec. 51 Search of arrested person.-(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and 18 whenever a person is arrested without warrant, or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency."
(Emphasis supplied) Section 51(1) first part, as could be seen, empowers the Police Officer, who has a warrant with him to arrest a person. But the second part of the said section discloses that whenever the police officer arrests a person without warrant and cannot legally be admitted to bail or is unable to furnish bail, then such officer making the arrest may search such person and place in 19 safe custody all articles other than the necessary wearing-apparel found upon him and where such article is seized from the arrested person, the receipt showing the articles taken possession by the Police Officer shall be given to such person. Therefore, whenever the police officer arrests a person without warrant and if any search is made, then also such articles can be kept in safe custody.
19. Further added to the above, Section 56 of Cr.PC also guides the Police Officer who has arrested a person without warrant, as to what he has to do. Section 56 reads as follows:
"Sec.56 Person arrested to be taken before Magistrate or officer in charge of Police Station,- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station."
(Emphasis supplied)
20. On conjoint reading of Section 41, 51 and 56 makes it clear that, if a Police Officer who without 20 warrant arrests a person and seize some articles, without unnecessary delay and subject to the provisions of Cr.PC, take or send the said person arrested before a Magistrate having jurisdiction over the case or before the officer in charge of the police station. This gives an indication that if the police officer, while exercising powers under these provisions, has no jurisdiction to conduct investigation any further, having arrested a person and seized some articles, it is his duty to ascertain who is competent police officer or police station which has jurisdiction to investigate the matter and without any unnecessary delay, such person, who was arrested and such articles which are seized should be placed before such officer in charge of the police station.
21. In view of the above said provisions, if they are read in consonance of the factual aspects of this case, it is clear that on the basis of incomplete information with regard to the commission of cognizable offences by ADGP, Lokayuktha, Bengaluru, the 2nd respondent-Police have proceeded to a particular place 21 as noted in the factual aspects and in fact in order to ascertain whether any cognizable office is committed or not and during the course of such inspection he found unexplained money with the petitioner. Therefore, he felt that some cognizable offence must have been committed by him, therefore, immediately along with the seized articles and the arrested person, the same has been entrusted to the jurisdiction police station ie., Dy.S.P., Karnataka Lokayuktha, Chitradurga, who registered a case in Crime No.4/2015 for the alleged offences. Therefore, in my opinion, the proceedings initiated is in accordance with law and the same cannot be interfered with lightly when the statute empower the concerned police to investigate into the matter.
22. In this view of the matter, I am of the opinion in this particular case, the above said preliminary inquiry done by the Superintendent of Police, Chitradurga does not amounts to an investigation, but it is only in the nature of a preliminary inquiry. Therefore, in this particular case, the above said rulings cited by the learned counsel are not in a straight jacket manner 22 applicable. Hence, the petition in my opinion deserves to be dismissed.
Accordingly, the petition is dismissed.
Sd/-
JUDGE PL*