Karnataka High Court
P A Dhananjaya vs The State Of Karnataka on 27 November, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.6100/2016
BETWEEN:
1. P.A.Dhananjaya
Aged about 45 years,
S/o Late Iythappa,
R/at Kanbail, Baichanahalli Village,
Suntikoppa,
Kodagu District-571237.
2. K.C.Seshagiri
Aged about 56 years,
S/o Late Chengappa,
R/at Stone Hills,
Madikeri Post, Madikeri,
Kodagu District-571201.
3. K.K.Belliappa,
Aged about 67 years,
S/o Late K.T.Kalaiah,
R/at Sports View,
Man's Compound,
Madikeri-571201.
And also be served at
2F Belvedere Court,
6Spencer Road, Frazer Town,
Bengaluru-560005. ... Petitioners
(By Sri. M.T.Nanaiah, Senior Counsel for
Smt. Rachita Nanaiah, Adv.)
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AND:
The State of Karnataka by
Madikeri Rural Police,
Madikeri-571201,
Represented by SPP
High Court
Bengaluru-560001 ... Respondent
(By Sri.Sandesh J. Chouta, SPP-II )
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to Quash the FIR in Cr.No.188/2016
registered by 1st Respondent Police for offences P/U/S 379 of
IPC and 4(1)(a), 21 of Mines and Minerals Regulation of
Development Act now pending on the file of the Prl. District
and Sessions Court, Madikeri, Kodagu District and
dismissed the complaint.
This Criminal Petition coming on for admission this
day, the Court made the following:
ORDER
Heard learned counsel for the petitioners and learned State Public Prosecutor-II for the respondent - State. Perused the records.
2. There are serious legal questions raised in this particular case. The petitioners have called in question the proceedings which are initiated suo - moto by the 3 Police and filing of charge sheet before the incompetent court and the procedure adopted by the court in entertaining the said criminal case. The learned counsel for the petitioner also strenuously attacked the registration of the case suo - moto by the police and investigating the matter even without registering the case, when allegations disclosed a cognizable offence, in this regard he relied on decision of the Apex Court in the case of Lalita Kumari Vs. Government of U.P. and others reported in AIR 2014 SC 187.
3. The brief factual matrix that emanates from the record is that on 1.7.2016, the Sub-Inspector of Police, Madikeri Rural Police Station received a credible information that at about 3.30 p.m. some persons were lifting sand from the river situated near Kokkalera Beliyappa's Pump House of Iralavalamudi Village and loading the same to the tractor. On receiving such credible information, the Police collected panch witnesses, went to the particular spot and found two persons loading 4 the tractor with sand from the said river. On seeing the police, one of them ran away from the spot and another person was caught and arrested. Thereafter mahazar was drawn and the said tractor - trailor was seized. Thereafter, the police came back to the Police Station and registered a case in Crime No.188/2016 for the offences punishable under Sections 379 of IPC and Sections 4(1)(A) and 21 of Mines and Minerals Regulation of Development Act, 1957 (for short 'the MMRD Act'). After completion of the investigation, it appears the Police have submitted charge sheet before the Special Court/Principal District and Sessions Judge at Kodagu-Madikeri in Special Case No.68/2016. The learned Sessions Judge, without looking into the provisions of law, has remanded the accused to judicial custody, took cognizance of the offences and issued process against the accused. Of course, by virtue of establishment of the Special Court, the Special Court got powers to try the offences under the provisions of the Mines and Minerals Regulation of Development Act and 5 Rules and other offences which are covered under the Act and also under any other penal law for the time being enforced. But Section 22 of the MMRD Act clearly creates a bar to entertain the charge sheet by the Police before the Special Court as there is no sub-provision under the MMRD Act or Rules under which the Special Court has got jurisdiction to take cognizance of the offences directly.
4. The learned State Public Prosecutor also did not bring to the notice of this Court any special provision under the MMRD Act which empowers Special Court to directly take cognizance of the offences under the said Special Act to the court. Therefore it creates a serious doubt as to, 'whether the Police can submit charge sheet directly to the Special Court when there is a specific bar under Section 22 of the MMRD Act which states that, "22. Cognizance of offences.--No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a 6 person authorised in this behalf by the Central Government or the State Government."
Therefore the proceedings pending on the file of the Special Judge in Special Case No.68/2016 is hit by serious procedural irregularities which are not curable in nature.
5. The second point raised before the Court is also very interesting. The Police were informed with regard to the cognizable offence and on the said information which disclosed cognizable offence, the Police cannot proceed to the place without registering a case. In this context, reliance is placed upon Lalitha Kumari Vs. Government of Uttar Pradesh and others reported in AIR 2014 SC
187. After detailed discussions, the Apex Court has given some directions at para 111 of the said decision. Only relevant directions are reproduced as hereunder:
"i) Registration of FIR is mandatory
under Section 154 of the Code, if the
information discloses commission of a
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cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence 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.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the 8 information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay / laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay."
6. In view of the above said directions of the Apex Court, it is duty of the Police Officer to register a case under Section 154 of CR.P.C. as soon as they receive the credible information, before proceeding any further for investigation. Therefore it all depends upon the facts and 9 circumstances of each case. The court also has to be satisfied whether the information received by the Police attracts a penal provision which is a cognizable offence so as to impute a duty on the Police Officer to register a case and proceed. In this case, as submitted by the learned counsel for the petitioners, there is a clear cut case of the Police giving the date, time and place of the incident and also theft of sand from the river. In spite of having such knowledge of the cognizable offences, the Police, without registering a case, proceeded to the place and investigated the matter which is hit by Section 154 of Criminal Procedure Code and also the guidelines imposed by the Apex Court in the aforesaid decision.
7. Another important aspect which is noticed by this Court is, the Police have lodged charge sheet directly to the Special Court which has no jurisdiction to take cognizance of the alleged offences, without there being committal by the jurisdictional Magistrate so far as it concerns to the offences punishable under the MMRD Act 10 and Rules. Further, added to that even if the Court takes cognizance of the offences under the MMRD Act or Rules in view of Section 22 of the MMRD Act and Rules, unless a private complaint is lodged by the competent officer before the jurisdictional Magistrate the same is not permissible. However, it is also made clear that after investigating the case, the police officer files a charge sheet under Section 154 of Cr.P.C., if the offences punishable under any of the provisions of the Indian Penal Code particularly under Section 379 IPC as made out in the particular case, the Magistrate has jurisdiction to take cognizance and proceed further to deal with the matter under Section 379 IPC. However, in this particular case, all these procedural aspects have been virtually thrown to wind by the Police as well as the Court. The Special Court even though had no jurisdiction, has received the charge sheet, taken cognizance of the offence and issued process which is hit by the provisions as stated above. Therefore the said proceedings in Special Court in Special Case 11 No.68/2016 is liable to be quashed. If the law permits, the police are at liberty to take appropriate action with regard to the further action to be taken by them in accordance with law.
Sd/-
JUDGE RS/* ct-hr