Karnataka High Court
Dr G Parameshwara vs Mallikarjuna A on 23 December, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.2603 OF 2020(GM-RES)
C/W
WRIT PETITION NO.2604 OF 2020(GM-RES)
WRIT PETITION NO.2728 OF 2020(GM-RES)
IN WRIT PETITION NO.2603 OF 2020
BETWEEN
DR G PARAMESHWARA
S/O LATE H M GANGADARAIAH
AGED ABOUT 68 YEARS
NO.12, 100 FEET RING ROAD
BTM 2ND STAGE,
BENGALURU-560076
...PETITIONER
(BY SRI:K. SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI:KIRAN J. ADVOCATE)
AND
1. MALLIKARJUNA A
S/O ALEGOWDA
AGED ABOUT 37 YEARS
N.S.ROAD, CHELUR, GUBBI
TUMKUR-572117
2. STATE BY COMMERCIAL STREET POLICE STATION
BANGALORE
REP. BY STATE PUBLIC PROSECUTOR
2
HIGH COURT BUILDING
BANGALORE-560001
...RESPONDENTS
(BY SRI:MALLIKARJUNA A-.R1 AS PARTY-IN-PERSON
SRI:V.S. HEDGE, SPP-II A/W
SMT: K.P. YASHODHA, HCGP FOR RESPONDENT NO.2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 CR.P.C., 1973 PRAYING TO QUASH THE
COMPLAINT DATED 02.05.2019 FILED BY THE
COMPLAINANT/RESPONDENT AGAINST PETITIONER BEFORE
THE LXXXI ADDITIONAL CITY CIVIL AND SESSION JUDGE AT
BANGALORE CCH-82 IN PCR NO. 22/2019 (ANNEXURE-A)
AND QUASH THE FIR DATED 27.11.2019 IN CRIME
NO.157/2019 LXXXI ADDITIONAL CITY CIVIL AND SESSION
JUDGE AT BANGALORE CCH-82 (ANNEXURE-B) AND QUASH
THE ORDER DATED 03.05.2019 IN PCR NO.22/2019 PASSED
BY THE LXXXI ADDITIONAL CITY CIVIL AND SESSION JUDGE
AT BANGALORE CCH-82, WHEREIN THE HON'BLE COURT
BELOW HAS REFERRED THE COMPLAINT FOR INVESTIGATION
TO DCP COMMERCIAL STREET POLICE STATION UNDER
SECTION 156(3) OF CR.P.C. FOR INVESTIGATION AND
REPORT (ANNEXURE-C) AND QUASH THE ENTIRE
PROCEEDINGS IN PCR NO.22/2019 PENDING ON THE FILE OF
LXXXI ADDITIONAL CITY CIVIL AND SESSION JUDGE AT
BANGALORE CCH-82 VIDE ANNEXURE-C.
IN WRIT PETITION NO.2604 OF 2020
BETWEEN
D.K. SHIVAKUMAR
S/O LATE D K KEMPEGOWDA
AGED ABOUT 57 YEARS,
NO.252, 18TH CROSS
UPPER PLACE ORCHID
3
SADASHIVANAGAR
BANGALORE - 560 008
...PETITIONER
(BY SRI:K. SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI:KIRAN J. ADVOCATE)
AND
1. MALLIKARJUNA A
S/O ALEGOWDA
AGED ABOUT 37 YEARS
N S ROAD, CHELUR
GUBBI, TUMKUR - 572 117
2. STATE BY COMMERCIAL STREET POLICE STATION,
BANGALORE
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001
...RESPONDENTS
(BY SRI:MALLIKARJUNA A-.R1 AS PARTY-IN-PERSON
SRI:V.S. HEDGE, SPP-II A/W
SMT: K.P. YASHODHA, HCGP FOR RESPONDENT NO.2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 CR.P.C., 1973 PRAYING TO QUASH THE
COMPLAINT DATED 02.05.2019 FILED BY THE
COMPLAINANT/RESPONDENT NO.1 AGAINST PETITIONER
BEFORE THE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE CCH-82 IN PCR NO.22/2019
(ANNEXURE-A) AND QUASH THE FIR DATED 27.11.2019 IN
CRIME NO.157/2019 LXXXI ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BANGALORE CCH-82 (ANNEXURE-B) AND
QUASH THE ORDER DATED 03.05.2019 IN PCR NO.22/2019
PASSED BY THE LXXXI ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BANGALORE CCH-82, WHEREIN THE
HON'BLE COURT BELOW HAS REFERRED THE COMPLAINT FOR
INVESTIGATION TO DCP COMMERCIAL STREET POLICE
STATION UNDER SECTION 156(3) OF CR.P.C. FOR
4
INVESTIGATION AND REPORT (ANNEXURE-C) AND QUASH
THE ENTIRE PROCEEDINGS IN PCR NO.22/2019 PENDING ON
THE FILE OF LXXXI ADDITIONAL CITY CIVIL AND SESSION
JUDGE AT BANGALORE CCH-82 VIDE ANNEXURE-C.
IN WRIT PETITION NO.2728 OF 2020
BETWEEN
H.D.KUMARASWAMY
AGED ABOUT 60 YEARS,
S/O H D DEVAGOWDA
R/AT NO.286 3RD MAIN ROAD,
3RD PHASE J P NAGAR
BANGALORE-560078 ...PETITIONER
(BY SRI:K. SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI:KIRAN J. ADV.,)
AND
1. MALLIKARJUNA A
S/O ALEGOWDA
AGED ABOUT 37 YEARS
N S ROAD, CHELUR
GUBBI, TUMKUR -572 117
2. STATE BY COMMERCIAL STREET POLICE STATION
BANGALORE
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001
...RESPONDENTS
(BY SRI:MALLIKARJUNA A-.R1 AS PARTY-IN-PERSON
SRI:V.S. HEDGE, SPP-II A/W
SMT: K.P. YASHODHA, HCGP FOR RESPONDENT NO.2)
5
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 CR.P.C., 1973 PRAYING TO QUASH THE
COMPLAINT DATED 02.05.2019 FILED BY THE
COMPLAINANT/RESPONDENT-1 AGAINST PETITIONER
BEFORE THE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE CCH-82 IN PCR NO. 22/2019
(ANNEXURE-A) AND QUASH THE FIR DATED 27.11.2019 IN
CRIME NO.157/2019 LXXXI ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BANGALORE CCH-82 (ANNEXURE-B) AND
QUASH THE ORDER DATED 03.05.2019 IN PCR NO.22/2019
PASSED BY THE LXXXI ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BANGALORE CCH-82, WHEREIN THE
HON'BLE COURT BELOW HAS REFERRED THE COMPLAINT FOR
INVESTIGATION TO DCP COMMERCIAL STREET POLICE
STATION UNDER SECTION 156(3) OF CR.P.C. FOR
INVESTIGATION AND REPORT (ANNEXURE-C) AND QUASH
THE ENTIRE PROCEEDINGS IN PCR NO.22/2019 PENDING ON
THE FILE OF LXXXI ADDITIONAL CITY CIVIL AND SESSION
JUDGE AT BANGALORE CCH-82 VIDE ANNEXURE-C SO FAR
PETITIONER IS CONCERNED.
THESE WRIT PETITIONS COMING ON FOR ADMISSION,
THIS DAY, THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING HEARING, THE COURT MADE THE
FOLLOWING:
6
ORDER
The petitioners have called in question the legality of the FIR registered against them in Cr.No.157/2019 based on the directions issued by learned LXXXI Addl. City Civil and Sessions Judge, Bengaluru City(CCH-82), (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) under section 156(3) of Cr.P.C.
2. The undisputed facts are that respondent No.1 filed a private complaint under section 200 Cr.P.c. against eighteen accused persons including The Assistant Commissioner of Police, Pulakeshinagar Sub Division, Bengaluru, The Superintendent of Police, the Deputy Superintendent of Police, The Circle Inspector of Police, The Sub Inspector of Police of Commercial Street Police Station, Bengaluru and all Election Officers deputed or on regular duty on 2019 Loksabha elections to the area seeking their prosecution for the offences under sections 405, 114, 116, 117, 120A, 121,124A, 141, 142, 149, 153A, 171C, 350, 353, 499, 503 and 505(2) of IPC. 7
3. The allegations in the complaint are that on 27.03.2019, most of the television news channels telecasted that the Chief Minister of Karnataka, Shri H.D. Kumaraswamy stated that there will be raids conducted by the Department of Income Tax which he came to know in his official capacity and threatened of a protest against such IT raids as done by Mamatha Banerjee, the Chief Minister of West Bengal. On the next day, i.e., on 28.03.2019, raids were conducted at several places of the State against the close associates of the Janata Dal (Secular) ('JDS' for short), Indian National Congress('INC' for short), political party leaders and some of the close associates of Sri. H.D. Kumaraswamy. By around 3.30 p.m., all leaders, party workers of JDS and INC were assembled in front of the Income Tax Office. They delivered speeches one after another to bring to the notice of IT officials that they would not be keeping quiet if IT people did not stop such raids against JDS and INC members. Alleging that such event had taken place at the time when model code of conduct for Lok Sabha elections was in force, respondent No.1 complained to the Chief Electoral Officer of Karnataka on 31.03.2019. According to the complainant, from the intent of such event 8 and the speeches delivered by the persons assembled, it was evident that their purpose was to threaten the IT officials during the time of elections and therefore, being an educated citizen of the Country, he wanted to see that law and order is followed and executed equally and therefore he made a representation to Chief Election Officer, Election Commission, Bengaluru. It is further stated in the complaint that on 07.04.2019, the complainant had been to Cubbon Park Police Station to lodge a complaint, but he was told that the place of crime fell within the jurisdiction of Commercial Street Police Station and therefore, he was constrained to file the private complaint against 14 accused persons.
4. In the complaint, it addition to making the above allegations, in a tabular form, the complainant has listed the provisions of the offences committed by the respective accused and has stated that none of the complaints filed by him were considered by the DG-IG of Police or Election Commission, instead, he was informed that "an FIR is already been registered to pertaining to this incident' at Commercial Street Police Station with Crime No.45/2019 under sections 143, 149 and 506 of IPC r/w 109 Karnataka Police Act for 9 holding protest and using loud speakers without prior permission from competent authority.
5. On receiving this complaint, the learned Special Judge passed the following order:-
"Complainant is present.
He request to refer this complaint to the ACP, Commercial Street, PS. Complaint is referred to DCP, Commercial Street, PS u/s. 156(3) of Cr.P.C. for investigation and report. Register as PCR.
Await report by 15.06.2019."
6. This order on the face of it indicates that without even looking into the contents of the complaint and without ascertaining as to whether any cognizable or non-cognisable offence has been made out in the complaint, arbitrarily, the learned Special Judge has passed the impugned order in utter disregard of law and procedure without application of mind that behoves the judicial officer. The impugned order does not reflect application of mind by the Special Judge before exercising jurisdiction under section 156(3) of the Code. In my view, solely on this ground, the order of reference made by the learned Special Judge and the consequent registration of FIR in Crime No.157/2019 deserves to be quashed. 10
7. Coming to the allegations made in the complaint, a reading of the complaint indicate that respondent No.1 sought prosecution of the petitioners in respect of an incident that is alleged to have taken place at around 3.30 p.m. on 28.03.2019, wherein, the petitioners are alleged to have issued threat to IT Officials. It is not known as to in what manner, accused Nos.14 to 19 viz., the Police Officers and the Election Officers have also threatened the IT officials. There is absolutely no averments whatsoever in the complaint as to their involvement in the alleged incident. Even insofar as the other accused are concerned, the only allegations made in the complaint is that during the incident, one after another speakers threatened the IT people that they will not be keeping quiet if IT people did not stop such raids against JDS and INC members. This statement, even if accepted as true, does not constitute the ingredients of any of the offences alleged in the FIR, much less, the offences of act of sedition and waging war against the Government by the petitioners. It is not forthcoming in the complaint as to which of the speakers had given threats to IT officials. None of the IT officials have come up with any such threats to them. A 11 reading of the complaint indicate that threat was perceived by the complainant and not by the IT Officials. Except making bald and general allegations and reproducing the ingredients of sections 153A, 505(2), 499, 503, 350, 353 and 171C IPC, there is absolutely no material constituting the ingredients of any those offences. It is really unfortunate that without even looking into the contents of the complaint, the learned Special Judge who happened to be a Senior Judge has referred the complaint for investigation, especially, when the complainant himself has stated in para 14 of the complaint that he was informed that an FIR is already been registered in respect of the very same incident in Cr.No.45/2019 and the matter was under investigation. Under the said circumstances, the learned Special Judge has misdirected himself in directing respondent No.2-Police to register the second FIR in respect of the very same offences.
8. It is held by the Hon'ble Supreme Court in T.T. Antony v. State of Kerala and Ors., (2001) 6 SCC 181 that:-
19. "The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 12 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected, he has to form an opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the Magistrate concerned under Section 173(2) of Cr.P.C.
However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C." 13
9. In the light of the above discussion, the impugned direction issued by the learned Special Judge and the consequent registration of FIR in Cr.No.157/2019 being wholly illegal and contrary to the scheme of Code and the settled principles of law laid down in T.T. Antony v. State of Kerala and Ors., (2001) 6 SCC 181 is liable to be set-aside.
10. Accordingly, the petitions are allowed. The impugned order dated 02.05.2019 passed by learned LXXXI Addl. City Civil and Sessions Judge, Bengaluru City(CCH-82), (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) and the consequent registration of FIR in Cr.No.157/2019 and all proceedings arising therefrom are quashed.
However, it is made clear that the Police Officer investigating Cr.No.45/2019 is at liberty to examine the complainant and to record his statement.
14
Liberty is reserved to respondent No.1 to submit his complaint/statement to the Investigating Officer investigating Cr.No.45/2019 and the same shall be treated as statement under section 161 Cr.P.C.
Sd/-
JUDGE *mn/-