Karnataka High Court
Sri Chandrappa M N vs Sri N Nagaraj on 20 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.51693 OF 2015 (GM-RES)
BETWEEN:
Sri Chandrappa M.N.,
S/o. Ninge Gowda,
62 years,
Retired Assistant Sub-Inspector
Of Police, R/o.Hoysala Nagar,
Hassan-573 201. .. Petitioner
( By Sri Veeranna G. Tigadi, Advocate )
AND:
1. Sri.N.Nagaraj,
Aged about 57 years,
Assistant Sub-Inspector of Police,
Arehalli Police Station,
Taluk: Belur,
District : Hassan -573 201.
2. State of Karnataka,
By Superintendent of Police,
Arehalli Police Station,
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001. .. Respondents
( By Sri Chetan Desai, HCGP for R-2;
R-1 served)
WP..No.51693/2015
2
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India read with Section 482 of Code of
Criminal Procedure praying to quash the FIR No.134/2015 of
Arehalli Police Station pending on the files of Additional Civil
Judge (Jr.Dn.) And JMFC, Belur, Hassan District, for the
offences punishable under Section 218 of Indian Penal Code
at Annexure-K.
This Writ Petition having been heard and reserved for
orders on 15.09.2018, this day the Court made the following:
ORDER
The petitioner has prayed for issuance of a writ in the nature of certiorari quashing the FIR No.134/2015 of Arehalli Police Station, pending on the file of learned Addl.Civil Judge and Judicial Magistrate First Class, Belur, Hassan District, for the offence punishable under Section 218 of Indian Penal Code.
2. The summary of the case as could be gathered from the material placed before this Court is that on WP..No.51693/2015 3 8.9.2008, the petitioner was the Station House Officer at Arehalli Police Station. At about 18.16 hours, Tahsildar, Belur, appeared before him and filed a complaint alleging that the accused in the said case has committed theft of sand and were illegally transporting it. The accused were said to have committed offences punishable under Section 41A and Section 21 of the Mines and Minerals (Development & Regulation) Act, 1957, and Sections 42 and 43 of Karnataka Minor Mineral Concession Act, and submitted the FIR to the jurisdictional Court. The trucks along with sand were produced before the petitioner. It is stated that during the investigation, the petitioner subjected the trucks and sand seized by the Tahsildar to P.F.No.88/2008 and obtained permission of the learned Judicial Magistrate First Class to retain the same. As per the order of the Court below, the trucks seized in the case were released to the respective registered owners. After completing WP..No.51693/2015 4 the investigation, petitioner filed a charge sheet on 6.2.2009 against the accused persons for the offences mentioned therein. After the charge sheet, the case was registered in C.C.No.437/2013 (old C.C.No.289/2009).
3. The accused pleaded not guilty and were tried by the learned Judicial Magistrate First Class, Belur. The learned Magistrate, by his judgment dated 7.7.2014, acquitted the accused in the said case of all the charges leveled against them. However, while acquitting the accused, the learned Judicial Magistrate First Class observed that the petitioner did not investigate the case properly, conducted himself negligently because he did not ascertain as to who are the owners of the truck, who had instructed the accused persons to transport the sand and that the petitioner also as an Investigating Officer, did not record the voluntary statement of accused persons. Further he did WP..No.51693/2015 5 not take any action against the owners of the truck. He also disposed of the sand seized without permission of the Court and did not inform the Government about the same. The learned Magistrate further observed that it was necessary for the superior officers of the Department of Police to take action against the petitioner.
4. Considering the observations of the learned Judicial Magistrate First Class, Belur, the Superintendent of Police, Hassan, sent a memorandum to the Sub-Inspector of Police, to file a complaint against the petitioner for the offence punishable under Section 218 of Indian Penal Code.
5. Respondent No.1 - Sri Nagaraj, the Assistant Sub-Inspector of Police filed a complaint against the petitioner alleging that he has committed an offence punishable under Section 218 of Indian Penal Code. WP..No.51693/2015 6 On the basis of the said complaint, a case is registered in Arehalli Police Station Crime No.134/2015 and FIR was submitted to the Court. In the meantime, the petitioner retired from the Department of Police on 30.4.2014. Thereafter, on 14.7.2014, the Sub-Inspector of Police submitted a requisition to the Assistant Executive Engineer to dispose of the said sand seized. The Assistant Executive Engineer is stated to have sold the said sand in an auction for a sum of `21,000/-, on 22.7.2014 and the amount is said have credited to the Government.
6. It is the contention taken in the memorandum of writ petition, as well the argument of the learned counsel for the petitioner that the acquittal of the accused in the original crime was not due to any faulty investigation, but, it was on the fact that spot panchanama by the Tahsildar was doubtful. Further the WP..No.51693/2015 7 drivers who were arrayed as accused in the commission of the crime were not convicted. Therefore, there was no point in prosecuting the owners of the alleged truck.
It is further stated by the petitioner's side that the sand was sold by the Public Works Department and the proceeds has already been credited to the Government Treasury and that there is no misappropriation of the properties seized in the matter.
Finally stating that no opportunity was given to the petitioner before passing strictures against him in the judgment by the Court below, learned counsel prayed for dismissal of the FIR.
7. Learned High Court Government Pleader appearing for the respondents in his very brief argument submitted that the observation made by the Court below cannot be called as strictures that has been passed WP..No.51693/2015 8 against the petitioner. Since there was faulty investigation, such an observation is made. As such, there is no necessity of interference by this Court.
8. The Court below by its judgment dated 7.7.2014, passed in C.C.No.437/2013 (old C.C.No.289/2009), while acquitting the accused, has made an observation that the present petitioner, who was the Investigating Officer in the said case, being a responsible officer, has not conducted the investigation properly and that it can be clearly seen that he has acted in a negligent manner, it is because he has not conducted the investigation about the ownership of the trucks seized in the case and as to at whose instance, the accused were transporting the sand illegally. It is also observed in the judgment that the Investigating Officer has not recorded the voluntary statement of the accused and also not given any reason for not arraying WP..No.51693/2015 9 the owners of the vehicles as the accused in the charge sheet. It is also observed in the judgment that no where the charge sheet mentions as to what happened to the seized sand in the case.
9. With the said observation, expressing that the said investigation creates a doubt in the mind of the Court, has directed to send a copy of the judgment to the Inspector General of Police, Mysuru, and Superintendent of Police, Hassan, to take appropriate action against the Investigating Officer. It is thereafter at the direction of the said superior police officer, the respondent No.1 filed the present first information report under question against the present petitioner for the offence punishable under Section 218 of Indian Penal Code.
10. In Muniappan -vs- State of Tamil Nadu {(1981) 3 SCC 11)}, in the Criminal Appeal filed WP..No.51693/2015 10 before it against the judgment and order dated 23.10.1979 of the Madras High Court in Criminal Appeal No.759 of 1979, the Hon'ble Apex Court was pleased to observe that the High Court had observed as below :
" In passing, we may mention that this is a grave dereliction of duty on the part of the policeman who was in charge of the police station at that time and is a matter that ought to be enquired into by the higher authorities. We hope that suitable directions will be issued to subordinate officers in this district to prevent a recurrence of such lapses on the part of policemen when reports of cognizable offences are given."
It was further observed by the Hon'ble Apex Court that the High Court added that the Inspector of Police was not on good terms with the Sub-Inspector and, therefore, the former made a false entry that the latter was present at the police station, which, according to WP..No.51693/2015 11 the High Court, was a serious matter which required to be probed by the Senior Officers. Observing that it was not quite sure whether there is credible evidence on record to show any enmity between the Inspector and the Sub-Inspector, the Hon'ble Apex Court held that the ex parte strictures passed by the High Court are likely to involve the two police officers or at least one of them into grave consequences. They should have been given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct.
The above observations shows that the said strictures were passed not by the Court which conducted the trial, but, it was by the High Court in an appeal against the judgment of the trial Court, that too, in the absence of any material to arrive at a conclusion that WP..No.51693/2015 12 the Inspector of Police and Sub-Inspector of Police were not in good terms with each other.
11. However, in the case on hand, admittedly the present petitioner has not recorded the voluntary statements of the arrested accused and also has not attempted to ascertain as to who were the owners of the trucks which were seized while they were said to have illegally transporting the sand that was alleged to have been procured under theft.
12. Learned counsel for the petitioner relies upon a judgment in State of West Bengal and others -vs- Babu Chakraborthy, reported in {(2004) 12 SCC 201}, wherein the Hon'ble Apex Court was pleased to hold that passing observations/strictures without affording an opportunity of being heard is not justified and correct and it is in violation of a catena of pronouncements of the Supreme Court that harsh or WP..No.51693/2015 13 disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before Court of law unless it is really necessary for the decisions of the case.
13. In the instant case, as observed above, the trial Court in its judgment has made an observation that the Investigating Officer (petitioner herein) being a responsible officer has not conducted the investigation properly and that he has acted in a negligent manner. The trial Court could have put few questions to the Investigating Officer under Section 165 of the Evidence Act, as to why did the Investigating Officer has not conducted any investigation about the alleged ownership of the vehicle and about alleged not proceeding against those owners of the vehicle involved in the crime.
14. It can also be noticed that though the trial in the Court below has ended in acquittal, but, the same is WP..No.51693/2015 14 not on the ground of any alleged lapses in the investigation which is said to have been conducted by the present petitioner, but, mainly on the ground that the prosecution witnesses have failed to establish that the ride by the complainant and his team was conducted and the sand was seized as alleged in the charge sheet. Therefore, the alleged improper investigation on the part of the Investigating Officer has not become the basis for the acquittal of the accused in the commission of crime.
15. Added to the above, it also can be noticed that the sand said to have been seized in the matter was subjected to property form. Even though the judgment of the trial Court under consideration has observed that the said sand was illegally sold by the present petitioner/Investigating Officer, but the said observation appears to be without any basis, for the reason that the petitioner has produced the documents to show that WP..No.51693/2015 15 seized sand was subjected to property form and the same was sold by Public Works Department authorities for a sum of `21,000/- and the sale proceed was remitted to the State Treasury. Thus, the observation that the seized sand appears to have been misappropriated also does not find any base.
16. Further, no action was initiated against the present petitioner by his department superiors while he was in service. Admittedly, this writ petitioner has now retired from the service. It is only thereafter the present action by instituting a FIR under question has been initiated against him. For all these reasons, I am of the view that the present petition deserves to be allowed.
Accordingly, the Petition stands allowed. The FIR in Crime No.134/2015 of 2nd respondent police for the WP..No.51693/2015 16 offence punishable under Section 218 of Indian Penal Code, is quashed.
Sd/-
JUDGE bk/