Karnataka High Court
Sri. Manjunath Sai vs State Of Karnataka on 20 September, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 17268 of 2022
C/W CRL.P No. 2271 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 17268 OF 2022 (GM-RES)
C/W
CRIMINAL PETITION NO. 2271 OF 2023
IN WRIT PETITION NO. 17268 OF 2022:
BETWEEN:
1. SRI. MANJUNATH SAI
S/O P SRIRAMULU
AGED ABOUT 36 YEARS,
OWNER SUPREME TRADERS
PEDDA MUTAYALAMMA COLONY
3RD ROAD, ANATHAPURA
ANDRA PRADESH-575 001.
2. SRI P PRITHVINATH SAI
S/O P SRIRAMULU
AGED ABOUT 34 YEARS
OWNER OF PRITHVI ENTERPRISES
Digitally signed by B
K SIDDESHWARA NILAYA
MAHENDRAKUMAR SHANTHINAGARA
Location: HIGH
COURT OF PEDDA MUTAYALAMMA COLONY
KARNATAKA 3RD ROD, ANATHAPURA
ANDRA PRADESH-575 001.
...PETITIONERS
(BY SRI. R RANGANATH REDDY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
SHIVMOGGA RURAL POLICE STATION,
SHIVMOGGA POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE CITY-560 001.
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2. STATE OF KARNATAKA
SHIVMOGGA CRIME POLICE STATION
SHIVMOGGA DISTRICT
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE CITY-560 001.
3. SRI MANJUNATH
AGED ABOUT 38 YEARS
POLICE SUB INSPECTOR,
SHIMOGGA RURAL POLICE STATION,
SHIVMOGGA-577 201.
...RESPONDENTS
(BY SRI. R RANGANATHA REDDY, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA R/W 482 OF CRPC PRAYING TO CALL FOR
RECORDS, IF NECESSARY QUASH THE PROCEEDINGS ARISING OUT
OF CR NO.24/2021 REGISTERED BY SHIVMOGGA RURAL POLICE
STATION IN JMFC-III, SHIMOGGA WHICH IS NOW COMMITTED AND
PENDING BEFORE III ADDL DISTRICT AND SESSIONS JUDGE AT
SHIVMOGGA AS SC NO.87/2021 VIDE ANNX-D AGAINST THE
PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTION
286, 304, 201 OF IPC, SECTION 9B OF EXPLOSIVES ACT AND
SECTION 3(a)(b), 5 OF THE EXPLOSIVES SUBSTANCES.
IN CRIMINAL PETITION NO. 2271 OF 2023:
BETWEEN:
MR B V SUDHAKAR
S/O LATE B M VENKATARAO
AGED ABOUT 57 YEARS
R/AT 7TH CROSS, RAVINDRA NAGAR
SHIVAMOGGA TOWN, SHIVAMOGGA.
...PETITIONER
(BY SRI. K V MANOJ, ADVOCATE FOR
SRI. C H HANUMANTHARAYA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY SHIVAMOGGA RURAL POLICE STATION
(REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE 560 001.
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2. SRI MANJUNATH
AGED ABOUT 38 YEARS
POLICE SUB INSPECTOR
SHIVAMOGGA RURAL PS
SHIVAMOGGA 577 201.
...RESPONDENTS
(BY SRI. B A BELLIAPPA, SPP A/W
SRI. M R PATI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE
CHARGE SHEET FILED BY THE SHIVAMOGGA RURAL POLICE
STATION, IN CR.NO.24/2021 (S.C.NO.87/2021) FOR THE OFFENCE
P/U/S 286, 304, 201 OF IPC, SECTION 9B OF EXPLOSIVE ACT AND
SECTION 3(a)(b) AND 5 OF EXPLOSIVE SUBSTANCES ACT, NOW
PENDING ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, SHIVAMOGGA.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners-accused Nos.2, 3 and 10 are sought to be prosecuted for the offences punishable under Sections 286, 304, 201 of IPC and Section 9B of Explosives Act and Section 3(a) (b), 5 of the Explosives substances Act.
The brief facts of the case are as follows:
i) On 22.01.2021, at 2.30 a.m., the SHO, Shivamogga Rural Police Station, received a written report sent by Police Sub-
Inspector through P.C. 2072 and 2093 and based on the said report, he registered a case in Crime No. 24/2021 for the offences punishable under Sections 9B of the Explosives Act, 1884 and under Section 5 of the Explosive Substances Act, 1908 and under Sections 286, 304 of IPC, 1860, against one -4- NC: 2023:KHC:34142 WP No. 17268 of 2022 C/W CRL.P No. 2271 of 2023 Sudhakar B.V. petitioner-accused No.10, accused Nos.15 and
12.
ii) Contents of the report discloses that, when he was on duty, he received phone calls from the public of Kallunguru Village, alleging that they have heard loud noise of breaking of the glass of the windows and doors of the houses in their village. Immediately, he along with the ASI and other Police personnel rushed to the spot and enquired with the villages who informed that accused No.10 and accused No.2 had taken the land of Mr. S.T. Avinash, on lease, and were visiting the said land frequently.
iii) On 21.01.2021, at 10.20 p.m., a vehicle carrying explosives blew up thereby damaging the glass of windows and doors of the nearby villages and upon receiving this credible information, he rushed to the spot where the alleged blast took place and it was uncovered that the whole place was covered with smoke and dust and fire at some places, and after a while, when the defacto complainant went to the crusher area where the blast happened, he found a lorry like vehicle completely damaged due to the blast, and parts of the human body and the vehicles were found scattered around the spot. On further interrogation, it was alleged that accused No.10 had taken the land in Sy.No.2 owned by accused Nos.11 and 12 and was running a stone crusher.
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2. The cognizance taken of the aforesaid offences is impugned in these petitions.
3. Learned counsel for the petitioners submits that initially the FIR was registered by the local Police, and in pursuance of the direction dated 21.01.2021 issued by the IGP, Eastern Range, the PI, transferred the investigation to CEN Police Station, Shivamogga, and thereafter the CEN Crime Police took over the case and conducted further investigation , and submitted the charge sheet. Therefore, the investigation conducted by the CEN crime Police for the offences under the provisions of IPC and also Explosives substances Act is one without authority of law since the notification dated 6.6.2017, and subsequent notification dated 13.6.2018, confers power on the CEN Crime Police to conduct investigation of the offences under the enactments enumerated therein, and the said notification does not confer power to conduct investigation for the offences punishable under the provisions of IPC and Explosives Substances Act. Therefore, conducting of investigation and submitting the charge sheet culminating in taking cognizance of the aforesaid offences stands vitiated.
4. On the other hand, B.A. Belliappa, learned State Public Prosecutor -I for the respondent-State is not in a position to substantiate that the CEN Police station was conferred with the power to investigate the offences alleged against the petitioners under the provisions of IPC , Explosives Act and the Explosive Substances Act.
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5. Considered the submissions made by the learned counsel for the parties.
6. The Government of Karnataka, Home Department issued notifications dated 6.6.2017 and 13.06.2018 conferring powers on the CEN Crime Police Station to investigate the offences punishable under the enactments enumerated therein. Perusal of the notifications indicates that the CEN Police Station has no power to investigate the offences under IPC alleged against the petitioners, and the Explosives Act and the Explosive Substances Act.
7. In the instant case, the investigation has been conducted by the CEN Police Station in the light of the memo issued by the IGP transferring the investigation from the local Police to the CEN Crime Police Station, and in the absence of any source of power, the investigation transferred to the CEN Police Station is one without authority of law. Therefore, conducting of the investigation culminating in submitting the charge sheet and taking cognizance of the offences alleged against the petitioners stands vitiated.
8. The Hon'ble Supreme Court in the case of Sandeep Kumar Yadav -vs- State of U.P and Others, reported in 2007 SCC OnLine All 1966 at para 5 has held as follows:
5. We are also not satisfied with the circular letters dated 10.1.2007 and 12.1.2007 (annexures SA 1 and SA 2) issued by the State Government to the SSPs/SPs of all districts as the circular dated 10.1.2007 unlike the order of the DG (CBCID) -7- NC: 2023:KHC:34142 WP No. 17268 of 2022 C/W CRL.P No. 2271 of 2023 dated 8.9.2006 merely refers to the Government Order dated 5.9.1995 and the letter of the DG dated 8.9.2006 without emphasizing the ingredients or mentioning the criteria for selecting appropriate cases for transfer of investigation to the CB CID, as have been clarified in our orders dated 16.11.2006, 15.9.2006, 21.8.2006 and 24.5.2006 that in accordance with the D.B. Decisions of this Court in Smt. Ramwati v. State of U.P. [2001 (42) ACC 751.] Bhopal v. State, [1997 (34) ACC
371.] etc. that based on relevant Government orders, transfer of investigation to the CBCID should only be made if (1) the crime is so complicated and involved that is not possible for the local police to properly investigate the crime, (2) the crime has inter national or inter-state or inter divisional ramifications, (3) the local conditions are such due to which it has become difficult for the local civil police to investigate the case fairly, and (4) such conditions have arisen due to which a doubt is created in the mind of the general public that the local police is not investigating the matter fairly. Also the circular should emphasize that transfers of investigations from the local police to the CBCID are not to be effected in a routine manner simply to please political functionaries by the district level officers mechanically giving 'No Objection' opinions but that the transfer are only to be effected after the district level competent officers exercises their independent mind and give reasons in accordance with Government Order dated 5.9.2005 and the DGP's circular dated 8.9.2006, and as clearly mandated in the present and abovementioned earlier orders.
9. The Hon'ble Supreme Court in the case of Mekala Madhusudhan Reddy -vs- Director General of Police, reported in 2020 SCC OnLine AP 964 at para 76, 77 and 78 has held as follows:
76. Though an administrative order is passed by the Director General of Police, A.P, transferring investigation in Crime No. 73 of 2016 to C.I.D by letter dated 13.07.2020, such administrative acts are subject to scrutiny by the higher Courts while exercising power of judicial review under Article 226 of the Constitution of India. Any administrative act or order passed or proceedings issued must be supported by a reason.
However, Deputy Superintendent of Police, C.I.D, Kurnool by importing his own knowledge filed elaborate counter, as per the allegations made in the counter, a representation was allegedly submitted by the defecto complainant in Crime No. 73 of 2016 complaining about the unfair or perfunctory investigation done by the original investigating officer in Crime No. 73 of 2016, so -8- NC: 2023:KHC:34142 WP No. 17268 of 2022 C/W CRL.P No. 2271 of 2023 also the other allegations made against the different accused persons who are not arraigned as accused in S.C. No. 96 of 2018 and S.C. No. 100 of 2019 pending on the file of Assistant Sessions Judge, Rayachoty. It appears that Deputy Superintendent of Police, C.I.D, Kurnool exhibited his personal knowledge in the counter, though the competent officer should explain such reason for addressing letter 13.07.2020 who is the Additional Director General of Police, A.P. The Director General of Police has to explain the reason for issuing such memo dated 13.07.2020 transferring investigation to C.I.D. Hence, in the absence of their independent counters filed by the Director General of Police, A.P and Additional Director General of Police, C.I.D, A.P, it is difficult to believe the reason for passing such administrative order by the Director General of Police, A.P and addressing a letter by the Additional Director General of Police, C.I.D, A.P to the Director General of Police, A.P. When the order or proceeding issued by the Director General of Police, A.P, is bereft of any reason, while exercising power of judicial review under Article 226 of the Constitution of India, this Court can set-aside such an order. The law declared by the Apex Court is abundantly clear that when the order passed by the administrative authority or action taken by administrative authority is without any reason, it is against the principles of natural justice and the court can quash proceedings or orders passed by administrative authority.
77. The jurisdiction of Court under Article 226 of Constitution of India is wide and this Court can examine the process of passing administrative order. If the Court finds that the procedure followed by the administrative authorities is contrary to the principles of natural justice or the procedure established, the Court can interfere with the administrative orders passed by the administrative authorities or quasi judicial authorities. In "West Bengal Central School Service Commission v. Abdul Halim " 14 herein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India. In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any -9- NC: 2023:KHC:34142 WP No. 17268 of 2022 C/W CRL.P No. 2271 of 2023 fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi- judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
78. In Steel Authority of India Ltd. v. STO, Rourkela-I Circle , 15 the Supreme Court testing the correctness of an order passed by the Assistant Commissioner of Sales Tax against the assessment, held that, "Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless".
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10. The CEN Police Station under the notification/s is not conferred to investigate the offences punishable under the Indian Penal Code except the commission of offences under Sections 420, 409, 468, 467, 471, 498 (A-E) of IPC, where the amount involved is above Rs.25 Lakh.
11. Admittedly, the offences alleged against the petitioners are not enumerated in the notification/s issued by the State Government. Therefore, in the absence of source of power, the direction issued by the IGP, Eastern Range, handing over the investigation to the CEN Police Station is one without authority of law. Consequently the conducting of investigation and submitting the final report by the CEN Police Station stands vitiated.
12. In view of the preceding analysis, I pass the following:
ORDER
i) The petitions are allowed;
ii) The impugned proceedings in S.C.No.87/2021 (arising out of Crime No. 24/2021) pending on the file of the III Additional District and Sessions Judge at Shivamogga, insofar it relates to accused Nos.2, 3 and 10 stands quashed;
iii) Liberty is reserved with the local Police Station i.e. Shivamogga Rural Police Station to conduct the investigation and submit the final report in accordance with law;
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iv) It is needless to state that petitioners are at liberty to file an appropriate application to enlarge them on bail, and if such an application is filed, the Trial Court to consider the same in accordance with law.
Sd/-
JUDGE HR