Karnataka High Court
S.Mehaboob S/O Lohar Moudden Sab vs The State Of Karnataka on 7 August, 2014
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
CRIMINAL APPEAL NO.2739 OF 2009
Between:
S. Mehaboob
S/o Lohar Moudden Sab
Aged about 48 years
Cycle Repair Work
R/o W.No.10, near Bismillah Garment
Old Kenchanagudda Road
Siruguppa in Bellary District
...Appellant
(by Sri J. Basavaraj, Advocate)
And:
The State of Karnataka
By the Sub-Inspector of Police
K.E.B. Vigilance Squad Bellary
Represented by
Public Prosecutor
Circuit Bench, Dharwad
...Respondent
(by Sri Vijayakumar Majage, HCGP)
This Criminal Appeal is filed under Section 374(2) of the
CrPC praying to call for the records in Special Case No.16 of
2003 on the file of Additional District and Sesssions-cum-Special
Judge, Bellary and set aside the order of conviction and sentence
dated 19.8.2009 for offences punishable under Section 39 and
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44 of the Indian Electricity Act and Section 379 of Indian Penal
Code and set the appellant at liberty.
This Criminal Appeal coming on for final hearing, this day,
the Court delivered the following:
JUDGMENT
Assistant Executive Engineer (Electrical), Karnataka Power Transmission Corporation Limited, Bellary (then the Karnataka Electricity Board) made a complaint to the Police Sub-Inspector, Vigilance Squad, Bellary Police Station on 9th March 1999 at 12.00 noon as per Exhibit P1 and the same has been registered for the offence punishable under Sections 39 and 44 of Indian Electricity Act, 1910 ('Electricity Act' for short) read with Section 379 of the Indian Penal Code. The case against the appellant was tried in Special Case No.16 of 2003 by the Special Judge, Bellary and by its order dated 19th August 2009 the Special Judge convicted the appellant for the offence referred to above and sentenced him to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.2000/-; and in default of payment of fine to undergo simple imprisonment for a period of fifteen days. The same has been challenged before this Court in this appeal.
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2. In the complaint it has been stated that during the investigation at Siruguppa, the complainant along with D. Shantakumar, Police Sub-Inspector, Vigilance, Karnataka Power Transmission Corporation Limited, Bellary ('KPTCL' for short) and PW3-Manjunath P.C.; PW2-Balaji Singh; and Chandra Lineman, KPTCL proceeded to the workshop of the appellant. The prosecution has examined PWs.1 to 3 as witnesses and marked documents as per Exhibits P1 to P4 and one MO. The complainant himself, in his chief-examination, has deposed the fact of having gone to investigate along with the investigation team. It is also stated in the complaint as well as in the deposition that the appellant by not paying the bill, has caused loss to the KPTCL in a tune of about Rs.1,02,854/-, and the appellant has committed an offence of theft of about 13,770 units of electricity.
3. The learned counsel for the appellant submits that as per complaint, the appellant alleged to have made theft of electricity by taking illegal connection to his workshop. The complainant along with investigating officer and panchas, went 4 to the spot at 12.00 noon, made an investigation, drawn mahazar and seized electrical wires. Thereafter, they came back and registered a complaint. The learned counsel submits that the investigation made even before registering of FIR is contrary to Section 154 of the Code of Criminal Procedure which mandates registration of FIR before proceeding for investigation. He submits that the learned Trial Judge committed an error in not taking note of this requirement and convicted the appellant for the said offence. In support of the said submission that the action of the respondent in carrying out investigation before registration of FIR is contrary to provisions of Section 154 of the Cr.P.C, he has relied upon the order of this Court passed in Criminal Petition No.11477 of 2011 disposed of on 26th March 2013 and submits that, in similar circumstance, this Court set aside the initiation of proceedings against the petitioner in the said Criminal petition filed under Section 482 of the Cr.P.C. The learned counsel has also relied upon the judgment of the Hon'ble Supreme Court in the case of STATE OF HARYANA v. C.H. BHAJAN LAL AND OTHERS reported in AIR 1992 SC 604 and referred paragraphs 30 to 33 and 35 of the judgment. A further 5 reliance is placed on the judgment of Hon'ble Supreme Court in the case of SAMAJ PARIVARTANA SAMUDAYA AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in 2012 SCW 3323 and referred to paragraph 17 of the judgment. Reliance is also placed on the judgment of this Court in the case of L. SHANKARAMURTHY AND OTHERS v. STATE BY LOKAYUKTA POLICE reported in 2012(5) KLJ 545. Hence, he submits that the case on hand is one of such case where the prosecution proceeded even before the registration of FIR, which is contrary and is illegal and hence prays for allowing the appeal.
4. The learned counsel for the respondent-Prosecution submitted that what has been done is only an inspection and not an investigation. After complaint and inspection, the case has been registered and there is no error in the order passed by the Special Judge. In respect of competency, he submits that the complainant has competency to lodge the complaint and this has not been disputed by the appellant and hence submits to dismiss the appeal.
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5. Heard the learned counsel appearing for the parties. The narrow compass for examination of the case of the appellant is whether the complainant proceeded for investigation before registration of FIR. In order to examine this question, the complaint as per Exhibit P1 has to be looked into. The same reveals that the complainant went along with vigilance squad consisting of Police Sub-Inspector, Head Constable and a Lineman to draw mahazar. Though the team went to the spot at 12.00 Noon on 09th March 1999, they conducted the investigation and prepared the back-bill in order to assess the loss said to have been caused by the appellant and thereafter came back to Bellary at 06.30 p.m. and lodged a complaint. This is self-explanatory and does not need any further probing into the fact as to whether FIR is lodged before investigation or subsequent to investigation. This fact has not been disputed with any evidence or materials by the prosecution. Section 154 of Cr.P.C. contemplates that every information relating to the commission of cognizable offence has to be reduced to writing, if it is oral or if it is in writing, the same has to be taken for the purpose of FIR. The officer in-charge of the Police Station has to 7 reduce the oral into writing or he can direct another officer to read over to the informant and every such information whether given in writing or reduced to writing, shall be signed by a person giving it and the substance thereof shall be entered in a book to be kept by such officer. The Registration of FIR whether is an option or is mandatory for the purpose of investigation, has been examined by the Hon'ble Supreme Court in the case of C.H. BHAJAN LAL (supra). The observation made in the said judgment at paragraphs 30 to 33 and 35 are extracted hereunder for reference.
"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.
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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 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 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 9 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 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 10 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 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, 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 11 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 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) 12 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 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 provision 13 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)."
6. The Hon'ble Supreme Court in the case of SAMAJ PARAVIRTANA SAMUDAYA (supra) at paragraph 17 of the judgment as observed thus:
"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 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 14 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 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)."
7. Further, this Court in the case of L. SHANKARAMURTHY (supra) at paragraph 35 of the judgment has held thus:
"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 15 part of the Police Officer concerned is nothing but an act which could be termed as abuse of the process of law."
8. By referring to the judgments of the Hon'ble Supreme Court and also of this Court, in Criminal Petition No.11477 of 2011 disposed of on 26th March 2013 this Court at paragraph 9 of the order has held that any information in writing or oral has to be reduced to FIR and then only it permits the Police authority 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.
9. In the light of the above, without going further in examining the evidence and materials available on record, it is required to hold that the Court below has committed an error and the order passed convicting the appellant is an error and hence the order dated 19th August 2009 in Special Case No.16 of 2003 is liable to be set aside; accordingly it is set aside.
10. With regard to back-billing is concerned, it is the statutory duty of the respondent as also the petitioner to pay the 16 bill and the same be recalculated if they are permitted by any provisions of law. Accordingly it is ordered.
In the result the appeal is allowed.
SD/-
JUDGE lnn