Karnataka High Court
Srinivas vs The State on 11 July, 2023
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NC: 2023:KHC:23976
CRL.RP No. 226 of 2018
C/W CRL.RP No. 227 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 226 OF 2018
C/W
CRIMINAL REVISION PETITION NO. 227 OF 2018
IN CRIMINAL REVISION PETITION NO. 226 OF 2018
BETWEEN:
SRINIVASALU
S/O. NAGADU
AGED ABOUT 58 YEARS
WORKING AS ASST EXECUTIVE ENGINEER
MINOR IRRIGATION DEPARTMENT
MINOR IRRIGATION SUB DIVISION
MYSURU - 570 001.
...PETITIONER
(BY SRI. PRATHEEP K C, ADVOCATE)
AND:
Digitally
signed by N THE STATE
UMA
Location: KOLLEGAL RURAL POLICE
HIGH REP. BY SPP HIGH COURT
COURT OF
KARNATAKA BANAGLORE - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 13.01.2016 PASSED IN
C.C.NO.1147/2004 ON THE FILE OF PRINCIPAL CIVIL JUDGE
AND J.M.F.C., KOLLEGAL, AND JUDGMENT DATED 15.02.2018
PASSED IN CRIMINAL APPEAL NO.5001/2016 ON THE FILE OF
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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NC: 2023:KHC:23976
CRL.RP No. 226 of 2018
C/W CRL.RP No. 227 of 2018
CHAMRAJANAGARA (SITTING AT KOLLEGALA) BY ALLOWING
THIS CRIMINAL REVISION PETITION AND ETC.,
IN CRIMINAL REVISION PETITION NO. 227 OF 2018
BETWEEN:
SRINIVAS
S/O. RAMAKRISHNAIAH
AGED ABOUT 57 YEARS
DODDINDUVADI VILLAGE
KOLLEGALA TALUK - 571 440.
CHAMRAJNAGAR DISTRICT
...PETITIONER
(BY SRI. PRATHEEP K C, ADVOCATE)
AND:
THE STATE
KOLLEGAL RURAL POLICE
REP. BY SPP HIGH COURT
BANAGLORE - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 13.01.2016 PASSED IN
C.C.NO.1147/2004 ON THE FILE OF PRINCIPAL CIVIL JUDGE
AND J.M.F.C., KOLLEGAL, AND 15.02.2018 PASSED IN
CRIMINAL APPEAL NO.5002/2016 ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHAMRAJANAGAR (SITTING AT KOLLEGALA) BY ALLOWING
THIS CRIMINAL REVISION PETITION AND ETC.,
THESE CRIMINAL REVISION PETITIONS, COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2023:KHC:23976
CRL.RP No. 226 of 2018
C/W CRL.RP No. 227 of 2018
ORDER
1. These Criminal Revision Petitions are filed by the petitioners, being aggrieved by the judgment of conviction and order of sentence dated 13.01.2016 in C.C.No.1147/2004 on the file of the Court of Principal Civil Judge and JMFC, Kollegal and its confirmation judgments and order dated 15.02.2018 in Crl.A.Nos.5001/2016 and 5002/2016 on the file of the Court of Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala) respectively, seeking to set aside the concurrent findings recorded by the Courts below, wherein the Trial Court held the petitioners / accused Nos.1 and 2 guilty for the offences punishable under Sections 409 and 120-B of Indian Penal Code (for short 'IPC').
2. The petitioners are the accused Nos.1 and 2respectively, before the Trial Court and appellant before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on 17.05.2004 at about 3.00 p.m., Doddinduvadi Village, it is stated that, on credible information having been received by -4- NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 the informant, the informant and his team proceeded to the spot and intercepted the lorry bearing No.KA-03-1441 and on verification, it is stated that, they found 235 bags of rice, which was supposed to be given under the food for work scheme. The same is stated to have been diverted by the accused No.1 to the black market. On enquiry, they seized the lorry and also the rice and arrested the accused Nos.2 and 3 and entrusted all these persons along with rice and lorry to the jurisdictional police and complaint was lodged by PW.1. Based on the complaint, FIR was registered by the jurisdictional police for the offences under Sections 406, 409, 420, 109 read with 120-B of IPC. After conducting investigation, the jurisdictional police filed the charge sheet.
4. To prove the case of the prosecution, the prosecution examined, in all, 14 witnesses namely PWs.1 to 14 and got marked Exhibits P1 to P28. On the other hand, the defence got marked documents Exs.D1 to D3. The Trial Court after appreciating the oral and documentary evidence on record, convicted the petitioners/accused Nos.1 and 2 for the offences punishable under Sections 409 and 120-B of IPC.
Being aggrieved by the same, the petitioners preferred an -5- NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 appeals before the Appellate Court, the Appellate Court confirmed the judgment of conviction rendered by the Trial Court. Being aggrieved by the same, the petitioners have preferred this revision petition seeking to set aside the concurrent findings.
5. Heard Shri Pratheep K.C, learned counsel for the petitioners and Shri Rahul Rai.K, learned High Court Government Pleader for the respondent - State.
6. It is the submission of learned counsel for the petitioners that, the judgment of conviction and order of sentence passed by the Trial Court and its confirmation order passed by the Appellate Court require to be set aside as the concurrent findings are perverse, illegal and opposed to facts and law.
7. It is further submitted that, before registration of the FIR and before proceeding to the spot to conduct search and seizure, entry must be made in the station house diary in that regard. The said diary and its entry regarding search and seizure was not proved by the prosecution.
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8. It is further submitted that, admittedly, the offences under the Essential Commodities Act are cognizable offences and the jurisdictional police should have registered the FIR and proceeded to the spot. Here in this case, there is a gross violation to the provision under Section 154 of the Code of Criminal Procedure (for short 'Cr.P.C'). The learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in the case of Lalita Kumari v. State of U.P1.
Making such submission, the learned counsel for the petitioner prays to allow the petition.
9. Per contra, learned High Court Government Pleader (for short 'HCGP') justifying the concurrent findings and submitted that, the petitioners have been apprehended red-
handedly by the respondent-police and PW.1 being a Police Inspector has lodged a complaint before the jurisdictional police and the jurisdictional police have registered a case in accordance with law. All the witnesses and the evidence of PW.7 who was the secretary of TAPCMS clearly indicates that, the rice was being transported to the open market /black 1 (2014) 2 SCC 1 -7- NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 market, though it was intended to be distributed under the food for work scheme.
10. It is his further contention that, the Trial Court and Appellate Court appreciated the facts and law and convicted the petitioners, which is appropriate and interference with the well reasoned order may not be warranted. Having submitted thus, learned HCGP prays to dismiss the petition.
11. Heard the rival contentions urged by the learned counsels for the respective parties and also perused the judgments of the Courts below. Since there is a question of law raised by the learned counsel for the petitioners, it is necessary to answer in that regard by considering the evidence of PW.1 and also the records, which were marked in support of the case of the prosecution.
12. It is the submission of the learned counsel for the petitioners that, the jurisdictional police have committed error in conducting search and seizure. The said search and seizure contrary to the provisions under Sections 154 and 157 of Cr.P.C. On perusal of the evidence of PW.1, PW.1 has stated that, there was an entry to the Station House diary regarding -8- NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 the cognizable offence and proceeded further for search and seizure. However, the Station House diary was not produced before the Court.
13. Now, it is relevant to refer Sections 154 and 157 of Cr.P.C., which reads thus:
154. Information in cognizable cases.-
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:-9-
NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 Provided further that-
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence:
157. Procedure for investigation.- (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one 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:
Provided that-
(a) when 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, the officer in charge of a police station need not proceed in person or
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also 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 it to be investigated.
14. On perusal of the above said provisions, it appears that, every information relating to the commission of a cognizable offence, shall be reduced to writing by him or under his direction. Similarly, Section 157 of Cr.P.C dealing with the
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence, which is empowered under Section 156 of Cr.P.C to investigate, he shall forthwith to send a report of the same to the Magistrate empowered to take cognizance.
15. Now it is relevant to refer the dictum of the Hon'ble Supreme Court in the case of Lalita Kumari stated supra, para 96 to 99 which read thus:
"96. The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice-delivery system but also to ensure "judicial oversight". Section 157(1) deploys the word "forthwith". Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary.
97. The Code contemplates two kinds of FIRs : the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:
97.1. (a) It is the first step to "access to justice" for a victim.
97.2. (b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. 97.3. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. 97.4. (d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR.
98. In Thulia Kali v. State of T.N. [(1972) 3 SCC 393 :
1972 SCC (Cri) 543] , this Court held as under : (SCC p. 397, para 12) "12. ... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
99. In Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , it was held as under : (SCC pp. 183-84, para 20) "20. It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eyewitness so as to be able to disclose in great detail all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 investigate the case and discover the true facts, if he can."
16. On reading of the dictum of the Hon'ble Supreme Court, registration of FIR is mandatory on receiving the information relating to cognizable offence. In the present case, PW.1 neither registered the FIR nor made entry in the Station House diary before proceeding to the spot, even though the information relates to the cognizable offence. Therefore, the subsequent investigation and filing of the charge sheet appears to be erroneous and the Trial Court and the Appellate Court should have considered this aspect while appreciating the evidence and law. Having failed to appreciate the law and evidence properly by the Courts below, exercising the Revisional jurisdiction is justified.
17. Therefore, the question raised by the learned counsel for the petitioners is answered in the affirmative and the conviction recorded by the Courts below requires to be set aside.
18. In the light of the observations made above, I proceed to pass the following:-
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NC: 2023:KHC:23976 CRL.RP No. 226 of 2018 C/W CRL.RP No. 227 of 2018 ORDER
(i) The Criminal Revision Petitions are allowed.
(ii) The judgment of conviction and order of sentence dated 13.01.2016 in C.C.No.1147/2004 on the file of the Court of Principal Civil Judge and JMFC, Kollegal and its confirmation judgments and order dated 15.02.2018 in Crl.A.Nos.5001/2016 and 5002/2016 on the file of the Court of Additional District and Sessions Judge, Chamarajanagara (sitting at Kollegala) respectively, are set aside.
(iii) The petitioners/accused Nos.1 and 2 are acquitted for the offences under Sections 409 and 120-B of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE UN List No.: 1 Sl No.: 50