Karnataka High Court
Shri. C Hemanth Kumar S/O. C.V. ... vs Karnataka Lokayukta on 26 March, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL PETITION No.11477/2011
BETWEEN:
SHRI C.HEMANTH KUMAR
S/O C.V.CHIDANANDAMURTHY,
AGED ABOUT 46 YEARS,
MOTOR VEHICLE INSPECTOR, RTO OFFICE,
KOLAR, O.O.D. BIJAPUR. ... PETITIONER
(BY SRI.SHANKAR HEGDE, ADV.)
AND:
KARNATAKA LOKAYUKTHA
REPTD. BY THE INVESTIGATING OFFICER,
LOKAYUKTHA POLICE STATION,
HOSPET, BELLARY DISTRICT. ... RESPONDENT
(BY SRI.JAGADISH PATIL, ADV.)
THIS PETITION IS FILED U/S.482 OF CR.P.C. SEEKING TO
CALL FOR ENTIRE RECORDS FROM THE INVESTIGATING
OFFICER, KARNATAKA LOKAYUKTHA, HOSPET, I.E. DY.
SUPERINTENDENT OF POLICE, KARNATAKA LOKAYUKTHA,
HOSPET IN CRIME NO.04/2010 QUASH FIR BEARING K.L.A.
HOSPET P.S. CRIME NO.04/2010 SO FAR AS IT RELATES TO
PETITIONER AND (ANNEXURE-A) AND PANCHANAMA DATED
12.05.2011 (ANNEXURE-B) PENDING ON THE FILE OF SPL.
JUDGE, PRINCIPAL DISTRICT AND SESSIONS JUDGE, BELLARY
BY EXERCISING POWER U/S 482 OF CR.P.C.
2
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the accused with a prayer to quash the FIR bearing KLA Hospet P.S. Crime No.04/2010 (now re-numbered as Spl.C.No.51/2011) and panchanama dated 12.05.2011 pending on the file of the Spl. Judge, Principal District and Sessions Judge, Bellary, which was filed for the offences punishable under Sections 7, 12, 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988.
2. The facts leading to the filing of this case are that on 11.05.2010, the Dy.S.P. summoned the panchas and informed to the panchas that, all the vehicles plying through Hagari R.T.O. check post were being checked for documents and the RTO officials were insisting for gratification and they were collecting money through private persons. On receiving such information, the panchas and entire trap team left Hospet around 8.30 3 p.m. and reached Bellary around 10.30 p.m. On the way Superintendent of Police introduced and around 11.00 p.m, entire team left Bellary and reached Hagari RTO Check Post, Bellary around 11.35 p.m. They observed the activities happening around and could see two home-guards stopping the vehicles and asking the drivers to get down and were directing them towards check post. In the check post something was enquired with drivers/cleaners and some money was being received. On chasing two lorries, they revealed that Rs.300/- was received from Sri.Pariyaswamy and Rs.200/- was taken from Sri.Sangeetha and that no receipts were given to them. Thereafter, those two drivers were taken to RTO check post. At the check post, Sri.Sangeetha informed that the petitioner demanded Rs.200/- as illegal gratification and informed him to give that amount to a private person with him. On enquiry, the private person revealed that he is Veeresh s/o late Rajashekarappa and he received 4 Rs.200/- as per the direction of the petitioner and kept the amount on the table. Thereafter, when enquired with the petitioner, petitioner produced Rs.30,130/- and besides this, Rs.6,710/- and Rs.51,980/- was collected as fine amount from the drivers and cleaners. The said amount was given to the custody of Sri.Pampapathy. On enquiry, the petitioner revealed that Rs.1,500/- is his money and he had availed Rs.30,000/- from his friend Rajashekhar. Thereafter, the FIR has been registered after the seizure of amount and arrest of the petitioner.
3. Learned counsel for the petitioner to substantiate the same has produced the complaint made to the Special Judge, Prl. District and Sessions Judge, Bellary wherein at internal page 5, it is stated that:
" ¸ÀzÀj «ªÀgÀªÁzÀ ºÀt d¥ÀÄÛ ¥ÀAZÀ£ÁªÉÄAiÀÄ £ÀAvÀgÀ D¥Á¢vÀgÉÆA¢UÉ ºÉƸÀ¥ÉÃmÉ ¯ÉÆÃPÁAiÀÄÄPÀÛ oÁuÉUÉ §AzÀÄ CªÀgÀ «gÀÄzÀÞ UÀÄ£Éß £ÀA. 4/2010 PÀ®A 7, 12, 13 (1) (r) gÉ/« 5 13 (2) ¦.¹.DPïÖ 1988 ¥ÀæPÁgÀ CªÀgÀ «gÀÄzÀÞ ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrPÉÆAqÀÄ vÀ¤SÉ PÉÊUÉÆArzÉ".
In view of this reference made in the complaint, it can be seen that without registering the FIR, trap was laid. Hence, the action of the respondent-Lokayuktha police is in contravention of provisions of Section 154 of Cr.P.C. and also judgments of the Supreme Court and also this Court. According to him, it is not in dispute that the case was not registered before the trap and panchanama and no contravening materials have been produced before this Court and it is a matter of fact which is available at Annexure-A, the complaint.
4. Learned counsel for the respondent defends the State and submits that on receiving a credible information, the Dy.S.P. of Hospet went to the spot along with the team and laid the trap and there is no contravention or illegalities attributed against the respondent. He further submits that the petitioner would be right, if the trap and mahazar was not done on 6 a credible information. In this case that is not the issue, since the trap was laid based on the credible information. Under these circumstances, learned counsel submitted to dismiss this petition.
5. I have heard learned counsel appearing for both the parties. The submission of the petitioner's counsel is sound and proper and holds water for the reason that under similar circumstances, this Court in Crl.P.No.5931/2012 dated 18.02.2013 between Mr.R.Gurumurthy Vs. State by Karnataka Lokayuktha Police, has held that the entire proceedings leading to conducting the seizure panchanama even without registering the case as required under Section 154 of Cr.P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C.
6. The Hon'ble Supreme Court in the case of STATE OF HARYANA AND OTHERS v. C.H. BHAJAN LAL AND OTHERS (AIR 1992 SC 604), as to the requirement of 7 the registration of the case by an officer in charge of the Station House whenever a communication was received and then to proceed for investigation, has observed thus at paragraphs 30 to 33 and 35 of the judgment;
"30. The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" (as defined under Section 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Investigation Report" and which act of entering the information in the said form is known as registration of a crime or a case.
31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with he mandate of Section 154(1) of the 8 Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the 9 person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expression, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he 10 is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 11 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
34. xxx xxx xxx
35. Section 157 (1) requires an Officer in charge of a Police Station who 'from information received or otherwise' has reason to suspect the commission of an offence - that is a cognizable offence - which he is empowered to investigate under Section 156, 12 to forthwith send a report to a Magistrate empowered to take cognizance of such offnce upon a police report and to either proceed upon a police report and to either proceed in person or depute anyone of his subordinate officers not being below such rank as the State Government may by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts (a) and (b). As per clause (a) the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the information as to the commission of any such offence is given against any person by name and the case is not of a serious nature. According to clause
(b), if it appears to the Officer in charge of a Police Station that there is no sufficient ground for entering in an investigation, he shall not investigate the case. Sub-section (2) of Section 157 demands that in each of the 13 cases mentioned in clauses (a) and (b) of the proviso to sub-section (1) of Section 157, the Officer in charge of the Police Station must state in his report, required to be forwarded to the Magistrate his reasons for not fully complying with the requirements of sub-
section (1) and when the police officer decides not to investigate the case for the reasons mentioned in clause (b) of the proviso, he in addition to his report to the Magistrate, must forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause the case to be investigated. Section 156 (1) which is to be read in conjunction with Section 157 (1) states that any Officer in charge of a Police Station may without an order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of the concerned police station would have power to enquire into or try under provisions of Chapter XIII: Section 156(3) vests a discretionary power on a Magistrate powered under S.190 to order an 14 investigation by a police officer as contemplated in Section 156 (1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by the police. In this context, we may refer to an observation of this Court in State of Bihar Vs. J.A.C. Saldanha (1980) 1 SCC 554 at page 568: (AIR 1980 SC 326 at p.334) extending the power of the Magistrate under Section 156 (3) to direct further investigation after submission of a report by the investigation officer under Section 173 (2) of the Code. The said observation reads thus-
"The power of the Magistrate under Section 156 (3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156 (3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This 15 provision does not in any way affect the power of the investigating officer to furnish investigate the case even after submission of the report as provided in Section 173 (8)."
7. In SAMAJ PARIVARTANA SAMUDAYA AND OTHERS VS.STATE OF KARNATAKA AND OTHERS (2012 SCW 3323) the Apex Court at paragraph 17 has held as under:
"17. The machinery of criminal investigation is set into motion by the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI, in terms of its manual has adopted a procedure of conducting limited pre-investigation inquiry as well. In both the cases, the registration of the FIR is essential. A police investigation may start with the registration of the FIR while in other cases (CBI, etc), an enquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of the Cr.P.C. Section 154 of the Cr.P.C. places an obligation upon the 16 authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received rally or in writing by the officer in -charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156 (3) Cr.P.C. the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the Cr.P.C. Such an order of the Magistrate under Section 156 (3) Cr.P.C. is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI Cr.P.C. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 Cr.P.C, or to adopt the above procedure. (Ref. Gopal Das Sindhi 17 and others vs. State of Assam & Another (AIR 1961 SC 986); Mohd. Yusuf Vs. Smt.Afaq Jahan & another (AIR 2006 SC 705) and Mona Panwar Vs. High Court of Judicature of Allahabad Through its Registrar and others (2011 (3) SCC 496)."
8. In the case of L.SHANKARAMURTHY AND OTHERS VS. STATE BY LOKAYUKTHA POLICE, CITY DIVISION, BANGALORE URBAN DIVISION, BANGALORE (2012 (5) KLJ 545), this court at para 35 has observed as under:
"35. In the light of the aforesaid position of law laid down by the Apex Court in particular in the aforementioned cases, the entire proceeding leading to conducting the seizure panchanama even without registering the cases as required under Section 154 of the Cr.P.C. is illegal, contrary to law and is in violation of the mandatory provisions of the Cr.P.C. and the act on the part of the Police Officer concerned is nothing but an act which could be termed as abuse of the process of law."18
9. In view of the reasons and judgments referred above, it is very clear that the police shall not proceed further unless the registration of FIR and for the purpose of registering FIR, Section 154 of Cr.P.C. is very elaborately spelt out. Any information in writing, the same has to be registered. If it is in oral, the Officer has to reduce it to writing or direct his sub-ordinates to reduce the oral complaint into writing. Then only it permits the police authorities to investigate or to find out the credibility of the information. The police are not authorised to investigate on the pretext of credibility or even for verifying the credibility, the FIR is a must and it shall follow in all other cases.
10. In the instant case, Annexure-A is the complaint made to the District and Sessions Court, Bellary, which was not preceded by registration of the complaint and even before the registration of the FIR, seizure and panchanama has been done which is directly in 19 contravention of law and hit by Section 154 of the Cr.P.C. and also the judgments referred hitherto. In the circumstances, this petition is bound to succeed.
11. Accordingly, the petition is allowed. The case registered against the petitioners in FIR bearing KLA Hospet P.S. Crime No.04/2010 (now re-numbered as Spl.C.No.51/2011) and panchanama dated 12.05.2011 pending on the file of the Spl. Judge, Principal District and Sessions Judge, Bellary are set aside and the proceedings under Section 482 are quashed.
SD/-
JUDGE Jm/-