Karnataka High Court
Raju S/O Sir Munibyregowda vs State Of Karantaka on 3 March, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.407 OF 2012
BETWEEN:
1. RAJU S/O SIR MUNIBYREGOWDA
AGED ABOUT 39 YEARS
R/AT GAJRENDRAPPA'S HOUSE
SRIRAMPUARA JAKKUR POST
BANGALORE.
2. SHARTH S/O RAJU
AGED ABOUT 21 YEARS
R/AT GAJENDRAPPA'S HOUSE
SRIRAMAPURA JAKKUR POST
BANGALORE. ... APPELLANTS
(By Sri: CHANDRASHEKAR R P FOR A-1
SRI.BASAVARAJU T.A. ADV FOR A-2)
AND
STATE OF KARANTAKA
BY AMRUTHAHALLI POLICE STATION,
BANGALORE
REP. BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE 560 001 ... RESPONDENT
(By Sri: B.J.ESHWARAPPA, HCGP)
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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED:5.3.12 PASSED BY THE P.O., FTC-IV,
BANGALORE IN S.C.NO.857/10 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 489-A,489-
B,489-C AND 489-D R/W SEC.34 OF IPC. AND THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
IMPRISONMENT FOR A PERIOD OF 10 YEARS AND TO PAY FINE
OF RS.10,000/- EACH, IN DEFAULT TO PAY FINE, EACH OF THEM
SHALL FURTHER UNDERGO R.I. FOR ONE MONTH FOR THE
OFFENCE P/U/S 489-A R/W 34 OF IPC. AND THE
APPELLANTS/ACCUSED ARE SENTENCED EACH OPNOF THEM TO
UNDERGO R.I. FOR A PERIOD OF 10 YEARS AND ALSO TO PAY
FINE OF RS.10,000/- EACH, IN DEFAULT TO PAY FINE, EACH OF
THEM SHALL UNDERGO R.I. FOR ONE MONTH FOR THE OFFENCE
P/U/S 489-B R/W 34 OF IPC. AND THE APPELLANTS/ACCUSED
ARE SENTENCED EACH ONE OF THEM TO UNDERGO R.I. FOR A
PERIOD OF 3 YEARS AND ALSO TO PAY FINE F RS.1,000/- EACH,
IN DEFAULT TO PAY FINE, EACH OF THEM SHALL FURTHER
UNDERGO R.I. FOR A PERIOD OF 15 DAYS FOR THE OFFENCE
P/U/S 489-C R/W 34 OF IPC. AND THE APPELLANTS/ACCUSED
ARE SENTENCED EACH ONE OF THEM TO UNDERGO R.I. FOR A
PERIOD OF 10 YEARS AND ALSO TO PAY FINE OF RS.10,000/-
AND ALSO TO PAY FINE, EACH OF THEM SHALL FURTHER
UNDERGO R.I. FOR ONE MONTH FOR THE OFFENCE P/U/S 489-D
R/W 34 OF IPC. THE ORDER OF SENTENCE OF R.I. FOR THE
OFFENCE P/U/S 489-A TO 489-D R/W SEC.34 OF IPC IMPOSED
AGAINST THE ACCUSED NOS.1 AND 2 SHALL RUN
CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal is directed against the judgment dated 5.3.2012 and the order of sentence dated 13.3.2012 passed by the Fast Track Judge-IV, Bengaluru City in S.C.No.857/2010.
2. The learned Fast Track Judge has found the appellants (Accused Nos.1 and 2) guilty of the offences punishable under sections 489-A, 489-B, 489-C and 489-D r/w 34 Indian Penal Code and has sentenced them to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.10,000/- for each of the above offences and in default to pay the fine, to undergo rigorous imprisonment for a period of one month For the offence punishable under section 489-C r/w 34 Indian Penal Code, the appellants are sentenced to undergo rigorous imprisonment for a period of three years and a fine of Rs.1,000/- each. The sentences are ordered to run concurrently.
3. The prosecution case is that on 9.4.2010 at about 2.15 p.m., PW-6 Sri. B. Ramachandrappa, Assistant Commissioner of Police, Sampigehalli Sub-Division, Bengaluru, 4 received a credible information that accused Nos.1 and 2 were possessing counterfeit notes of the face value of Rs.1,000/-. Rs.500/-, Rs.100/- and Rs.50/- respectively in their rented house situated at Gajendrappa's Vatara in Srirampura village, Bengaluru and that they were circulating the same through accused Nos.3 and 4. On receipt of this information, PW.6 along with PWs.1, 3, 4, 5 and 7 along with the panchas raided the rented house of accused Nos.1 and 2 at about 3.30 p.m. and apprehended accused Nos.1 and 2 at the spot and seized 57 counterfeit currency notes of Rs.1000/- denomination, 105 counterfeit currency notes of Rs.500/- denomination, 273 counterfeit currency notes of Rs.100/- denomination and 24 counterfeit currency notes of Rs.50/- denomination respectively of different numbers, in the presence of C.W.2 and C.W.3, under mahazar. The police, during raid, also seized a Canon Pixma Printer with Xerox machine, Jaimini Paper Trimmer-Paper cutter, 98 white papers - Bilt Royal Executive Bond, Ink bottle - Image King refilled ink (Majenta, Yellow, Cyan, Black Pigment Ink), four injection syringes, one cello tape, one packet rubber bands, 5 which are the instruments for processing the counterfeit notes, under mahazar, in the presence of panchas C.W.2 and C.W.3.
4. After returning to the Police Station, PW.4 registered a case in Cr.No.68/2010 against accused Nos.1 and 2 and two others namely Issac and Raghu for the offences punishable under sections 489-A, 489-B, 489-C and 489-D r/w. section 34 of Indian Penal Code. The further investigation was continued by PW.7. The seized counterfeit notes were forwarded to PW.2 for chemical analysis and after receipt of the opinion and on completion of the investigation, the charge-sheet was laid against accused Nos.1 and 2 showing accused Nos.3 Issac and accused No.4 Raghu as left out from the charge-sheet.
5. The charges were framed against accused Nos.1 and 2 under sections 489-A, 489-B, 489-C, 489-D r/w. section 34 of Indian Penal Code. The appellants/accused Nos.1 and 2 having denied the charges, the prosecution examined seven witnesses as PW.1 to PW.7 and marked in evidence nine documents as exhibits P1 to P9 and the material objects at M.Os.1 to 14 in proof of the guilt of the accused. The incriminating 6 circumstances brought out in their evidence having been denied by the accused Nos.1 and 2, after hearing the prosecution and the counsel for the accused, the learned Fast Track Court Judge by the impugned order convicted accused Nos.1 and 2 and sentenced them as above.
6. Being aggrieved by the impugned judgment of conviction and sentence, appellants Nos.1 and 2 have preferred this appeal inter alia contending that the impugned judgment suffers from inherent improbabilities and inconsistencies and the findings recorded by the lower court are perverse and they suffer from manifest illegalities.
7. During the pendency of this appeal, appellant No.2/accused No.2 having raised the issue of juvenility, by order dated 28.3.2013, the Juvenile Justice Board was directed to hold an enquiry and submit a report regarding the age of appellant No.2 as on the date of commission of the offence. Accordingly, the Juvenile Justice Board forwarded a report to the effect that the date of birth of the appellant No.2 is 12.9.1992. In view of the said report, appellant No.2 having been found to be below 18 7 years of age as on the date of commission of offence, he was enlarged on bail, whereas the appellant No.1 continued to be in jail serving the sentence awarded by the court below.
8. I have heard the learned counsel for the appellants.
9. Learned counsel has raised three fold contentions. Firstly, it is contended that raid was conducted prior to the registration of the case, which is evident from the documents produced before the Court. It is the submission of the learned counsel that the procedure adopted by the Investigating Agency in registering the F.I.R. subsequent to the raid and arrest of the accused is not only bad in law, but has also caused grave prejudice to the appellants. In support of this argument, learned counsel has referred to series of decisions rendered by this Court, commencing from the ruling of the Division Bench of this Court in the case of Sri.GIRISHCHANDRA & Another vs. The STATE by Lokayuktha Police, Yadgir reported in ILR 2013 Karnataka 983, wherein it is held that registration of F.I.R. is mandatory in all types of cases and the conduct of investigation by surprise raid in the absence of F.I.R. is untenable. This 8 decision has been followed in Crl.P.No.5428/2015 (dis. on 28.10.2015), Crl.P.No.5325/2012 (dis. on 27.9.2013), Crl.P.No.551/2013 (dis. on 14.8.2013), Crl.P.No.10442/2013 (dis. on 18.3.2013) and Crl.P.No.5802/2016 (dis. on 22.9.2016).
10. Secondly, it is contended that the members of the raiding party namely PWs.6 and 7 themselves have conducted investigation in this case, which again is a patent illegality resulting in unfair investigation leading to grave prejudice to the appellants. In support of this submission, learned counsel has pointed out that PW.6 - the Dy.S.P. who was the I.O. himself conducted the raid, permitted registration of F.I.R. and PW.7 - the Police Inspector who participated in the raid has acted as the subsequent Investigating Officer. Under the said circumstances, the investigation having been tainted, the entire proceedings initiated against the appellants are vitiated and therefore, the impugned judgment is liable to be set-aside solely on this ground.
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11. Thirdly, learned counsel submits that inspite of the above defects, the Trial Court has imposed maximum sentence on the accused/appellants No.1 and 2. Appellant No.1 has already served seven years of imprisonment and appellant No.2 though was a juvenile as on the date of commission of the offence, has already undergone three years and four months of imprisonment and therefore, considering this fact, the impugned judgment be set-aside and the appellants be set at large.
12. Learned HCGP prays for time to make his submissions. Request has been rejected.
13. I have gone through the impugned judgment and the material relied upon by the prosecution and have considered the contentions raised by the learned counsel for the appellants.
14. Coming to the merits of the case, it is not in dispute that the premises of the appellants was raided on 9.4.2010 and the incriminating materials were seized from the possession of the appellants No.1 and 2. The factum of seizure is proved by examining PWs.1, 3, 4, 5, 6 and 7. The testimony of these 10 witnesses regarding the raid conducted in the premises belonging to the appellants and the seizure of the incriminating evidence has not been discredited in the cross-examination and therefore, there is no reason to doubt and disbelieve the fact that the appellants were caught red-handed in the act of counterfeiting the currency notes. The machinery and equipments used for the commission of these offences have been marked in evidence as M.Os.1 to 7 which lend corroboration to the testimony of the above witnesses. Even though the learned counsel for the appellants has taken up a plea that the raid conducted by the Investigating Agency prior to the registration of the case suffers from illegality and therefore, no credence could be given to the material collected during the search. Yet the law on the point is well settled that the evidence recovered or discovered even a result of illegal search is relevant (AIR 1997 S.C. 79). Therefore, the facts proved in evidence through the above witnesses coupled with the seizure of the material objects conclusively establish the guilt of the appellants for the above offences. The findings recorded by the Trial Court holding the appellants guilty of the offences under sections 489- 11 A, 489-B, 489-C and 489-C r/w. section 34 of Indian Penal Code are based on legal evidence and do not suffer from any error of fact or law calling for interference by this Court and accordingly these findings are confirmed.
15. Coming to contention raised by the learned counsel for the appellants that the commencement of the investigation without registration of the F.I.R. vitiates the proceedings initiated against the appellants is concerned, in my view, the findings recorded by the court below cannot be set at naught on the purported contentions in view of the provisions of section 465 of Cr.P.C. which reads as under:
465. Finding or sentence when reversible by reason of error, omission or irregularity. - (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for 12 the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Though the learned counsel for the appellants has contended that the procedure adopted by the prosecution is illegal, yet in the absence of any material to show that on account of the said irregularity, any miscarriage of justice has been caused to the appellants, in my view, the said irregularity cannot be taken as a factor vitiating the impugned judgment.
16. Likewise, the contention urged by the learned counsel for the appellants that the conduct of the investigation by the police officers who were members of the raiding team also cannot be sustained. In this context, useful reference could be made to the exposition of law on the subject by the Hon'ble 13 Supreme Court of India in the case of VINOD KUMAR vs. STATE OF PUNJAB reported in 2015(2) SCC (Criminal) 226, wherein the ratio laid down in STATE vs. V.JAYAPAUL reported in (2004) 5 SCC 223 has been affirmed and the decision in STATE OF U.P. vs. BHAGWANT KISHORE JOSHI reported in AIR 1964 SC 221, has been distinguished and it has been held as under:-
6. "Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who "lodged" the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, 14 that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.
In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack."
17. In view of this proposition of law, the legal contention urged by the learned counsel for the appellants does 15 not merit acceptance. As a result, the impugned judgment of conviction recorded by the court below is confirmed.
18. Coming to the sentence awarded by the court below, the Trial Court has sentenced both the appellants to undergo rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each for offences under sections 489-A, 489-B and 489-D and rigorous imprisonment for 3 years and a fine of Rs.1,000/- each for the offence under Section 489-C of Indian Penal Code.
19. In the instant case, needless to say, the offences proved against the appellants have serious effect on the economy of the country and also have deleterious effect on the society at large. Hence, taking into consideration the overall circumstances of the case and the volume of the currency notes possessed by the appellants and having regard to the fact that one of the appellants was a juvenile at the time of the commission of the offences, in my view, imprisonment for a maximum period of seven years and a fine of Rs.10,000/- for 16 each of the offences would be just and adequate sentence for the offences committed by appellant No.1.
20. In so far as appellant No.2 is concerned, he is found to be juvenile on the date of the offence. Appellant No.2 has already served three years and four months of sentence before he was enlarged on bail. As per section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in section 20 of the said Act whereby the proviso and explanation were added to section 20, the juvenile is required to be forwarded to the Juvenile Justice Board for determining the quantum of sentence in view of the conviction recorded against him under sections 489-A, 489-B, 489-C and 489-D. In similar circumstances, the Hon'ble Supreme Court in the case of VIJENDRA SINGH vs. STATE OF U.P. reported in AIR 2017 SC 860 while sustaining the sentence of conviction has ordered for release of the juvenile from the custody. Following the said decision appellant No.2 who has been in custody for the maximum period for which he 17 would have been confined to a special home is required to be set at large.
21. In the light of the above discussion, I proceed to pass the following order:-
Criminal appeal is partly allowed. The judgment of conviction recorded by the Fast Track Judge-IV, Bengaluru City in S.C.No.857/2010 is confirmed. Appellants No.1 and 2 are held guilty of the offences punishable under sections 489-A, 489- B, 489-C and 489-D r/w. section 34 of Indian Penal Code. In modification of the sentence awarded by the Trial Judge, appellant No.1 is sentenced to the period of imprisonment already undergone and is also sentenced to pay a fine of Rs.10,000/- for each of the offences punishable under sections 489-A, 489-B, 489-C and 489-D r/w. section 34 of Indian Penal Code. In default to pay the fine amount in all Rs.40,000/-, appellant No.1 shall serve a further rigorous imprisonment for a period of one year.18
Appellant No.2/accused No.2 having been in custody for a maximum period for which he would have been confined to a special home is ordered to be set at large. As the appellant No.2/accused No.2 is on bail, his bail bond shall stand cancelled and the surety, if any, shall stand discharged. The fine imposed by the Trial Court against appellant No.2/accused No.2 is cancelled.
Sd/-
JUDGE Bss.