Karnataka High Court
Dr M K Pushpitha vs State Of Karnataka on 4 August, 2021
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
WRIT PETITION No.10241 of 2021
BETWEEN
DR. M.K. PUSHPITHA
D/O. M.J. KUMAR,
AGED ABOUT 25 YEARS,
RESIDING AT NO.138, 13TH MAIN,
ITI LAYOUT, NAGARBHAVI, 2ND STAGE,
BENGALURU - 560 072.
...PETITIONER
(BY SRI HASHMATH PASHA, SENIOR COUNSEL
ALONG WITH SRI NASIR ALI, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY ANNAPOORNESHWARI NAGAR POLICE STATION,
BENGALURU CITY - 560 072.
2. MR. CHANDRASHEKAR S.G.
POLICE SUB-INSPECTOR,
ANNAPOORNESHWARI NAGAR POLICE STATION,
BENGALURU - 560 072.
BOTH ARE REPRESENTED BY LEARNED
GOVERNMENT ADVOCATE,
HIGH COURT OF KARNATAKA,
BENGALURU
...RESPONDENTS
(BY SRI V.M. SHEELAVANTH, SPP-I
ALONG WITH SRI MAHESH SHETTY, HCGP)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE FIR REGISTERED IN CRIME
NO.110/2021 OF ANNAPOORNESHWARI NAGAR POLICE
STATION, BENGALURU, AND ALL FURTHER PROCEEDINGS,
WHICH IS REGISTERED FOR OFFENCES PUNISHABLE UNDER
SECTIONS 380, 403, 409 AND 420 READ WITH SECTION 34 OF
THE INDIAN PENAL CODE AND UNDER SECTION 53 OF THE
DISASTER MANAGEMENT ACT, 2005 AS PER ANNEXURE-A,
WHICH IS PENDING ON THE FILE OF HON'BLE IV ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU, AS AN
ABUSE OF PROCESS OF LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.07.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
The petitioner/accused No.1 has filed this petition for quashing the FIR registered in Crime No.110/2021 registered by Annapoorneshwari Nagar Police Station, Bengaluru and all further proceedings for the offences punishable under Sections 380, 403, 409, 420 read with Section 34 of IPC and Section 53 of the Disaster Management Act, pending on the file of the IV Additional Chief Metropolitan Magistrate, Bengaluru, as an abuse of process of law.
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2. Heard the arguments of Sri Hashmath Pasha, learned Senior counsel along with learned counsel Sri Nasir Ali appearing for the petitioner/accused No.1 and Sri V.M.Sheelavanth, learned SPP-I along with Sri Mahesh Shetty, learned High Court Government Pleader for the respondents
3. The case of the petitioner/accused No.1 is that on the suo motu complaint of Chandrashekar S.G., PSI of Annapoorneshwari Nagar Police Station (respondent No.2 herein) the case came to be registered in Crime No.110/2021 for the aforesaid offences. It is alleged by the Police Officer in his complaint dated 20.05.2021 that he received credible information that at ITI Layout, 6th Main road, Mallathahalli, Bengaluru, in one of the houses, some persons are giving Covishield vaccination to the public by collecting Rs.500/- per head illegally and the vials were stolen from government Primary Health Centre. Immediately, he secured women constables, other police constables along with panchas, visited the said address 4 and sent a Constable as decoy and after confirming the complaint, apprehended accused Nos.1 and 2. The petitioner who is said to be a Doctor working in a Primary Health Centre at Manjunathanagar in Rajajinagar ward has stolen the Covishield vaccine from the hospital and illegally vaccinating the public by collecting Rs.500/- per head. Then the Investigating Officer seized the remaining Covishield vials and empty vaccine bottles, syringes and used syringes under the panchanama. It is also revealed that the said house belonged to accused No.2 who is a friend of accused No.1, the present petitioner. They also seized Rs.12,000/- from her possession, brought her to the Police Station and registered the case. Subsequently, the petitioner is said to have been released on bail. Hence, the petitioner/accused No.1 has filed this petition for quashing the FIR and all further proceedings for the aforesaid offences as an abuse of process of law on various grounds.
4. Sri Hashmath Pasha, learned Senior counsel contended that registering the FIR after apprehending the 5 accused is illegal. Therefore, registering the FIR, seizing the articles and preparing the panchanama after arresting the petitioner is in violation of the procedure under Section 154 and 155(2) of Cr.P.C.
5. Learned Senior counsel also contended that the offence under Section 53 of the Disaster Management Act is a non-cognizable offence which is punishable with two years of imprisonment and also with fine and as per Schedule II of Cr.P.C., the offence is non-cognizable. Therefore, without obtaining the permission of the Magistrate under Section 155(2) of Cr.P.C., proceeding to the spot, seizing the articles, arresting the accused is in violation of the provisions of law and also raiding the house is nothing but breach of fundamental rights of privacy guaranteed under Article 21 of the Constitution of India. Learned Senior counsel also contended that the offences under Sections 380, 403, 409, 420 of IPC are not attracted as there is no theft or cheating. The Police have invoked the said provisions by implicating the petitioner 6 falsely. The Police gets the authority to seize the articles and arrest the accused only after registering the FIR otherwise it amounts to violating the fundamental rights as well as the procedure prescribed under the Cr.P.C. In support of his case, learned counsel relied upon a decision of a co-ordinate Bench of this Court in the case of L.Shankaramurthy and others vs. State by Lokayuktha Police, City Division, Bangalore Urban Division, Bangalore, reported in 2012 SCC OnLine Kar. 8923 and the decision of the Hon'ble Supreme Court in the case of Lalitha Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1. Also, in respect of right of privacy, learned Senior counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others reported in (2017) 10 SCC 1.
6. Per contra, Sri V.M. Sheelavanth, learned SPP-I, objected the petition and contended that the 7 petitioner/accused No.1 being a Doctor working in a Primary Health Centre situated at Manjunathanagar in Rajajinagar was supposed to administer vaccine to the public in the government hospital which is meant for free of cost has carried the Covishield vials to a private place of long distance away from the hospitals and kept in the house of accused No.2, who is her friend and administered the same to the public by collecting Rs.500/- per head, which amounts to theft of government property from the place of work and also using it for his own purpose or selling the same is nothing but mis-appropriation and cheating the government. Moreover, selling the same to the public after taking Rs.500/- per head is an offence under the provisions of Indian Penal Code as well as under
Section 53 of the Disaster Management Act.
7. Further, the learned SPP-I contended that the Police, before proceeding to the spot, registered the information received in writing in the Station Diary and then proceeded to the spot, apprehended the accused, seized the articles 8 and brought to the Police station, registered the case and then arrested the petitioner. Therefore, there is no violation of any of the provisions of law either under Section 154 or 155 of Cr.P.C. The Investigating Officer has no definite information as to whether the offence committed is cognizable or non-cognizable in order to prepare the FIR prior to ascertaining the nature of offence. Therefore, he sent a Police Constable as a decoy and after confirming the crime, he apprehended, seized the empty bottles and vials of Covishield vaccine, but by that time already the petitioner has vaccinated many persons by collecting Rs.500/- per head. Selling the vaccine which is meant for free of cost for Rs.500/- is nothing but selling it in the black market. The Investigating Officer has ascertained the offence only on the spot and thereafter arrested the petitioner as such, there is no violation of any of the provisions of law and also there is no violation of any of the fundamental right of the petitioner by raiding the spot. Hence, prayed for dismissal of the petition. 9
8. Upon hearing the arguments and on perusal of the records, it is not in dispute that the petitioner is a Doctor working in the Primary Health Centre at Manjunathanagar in Rajajinagar ward and her services were appreciated by the Minister by felicitating her as per the photographs produced by the petitioner's counsel. However, the fact remains that accused Nos.1 and 2 were arrested at Annapoorneshwari Nagar Police limits. In the house of accused No.2, the petitioner/accused No.1 was found to be administering Covishield vaccine to the public by maintaining a note-book and receiving Rs.500/- per head and already emptied 3 vials and two more vials were in her possession. The used syringes as well as unused syringes, in all, 24 syringes and two syringes filled with Covishield vaccine were seized by the Police. As per Section 53 of the Disaster Management Act, the offence is punishable upto two years of imprisonment and with fine and a non- cognizable offence requires permission of the Magistrate for seizure and arrest. The fact remains that the Police got the information on 20.05.2021 at 3.30 p.m. that some 10 persons are administering Covishield vaccine to the public by collecting Rs.500/- per head, which is meant for free of cost. That was the only information received. Whether the accused was a Doctor and giving vaccination is not known to the Investigating Officer. Though, the Investigating Officer has written in the Station House Diary that information is received regarding some persons vaccinating the public by collecting Rs.500/- per head, but not registered the FIR and not chosen to get permission of the Magistrate. Thereafter, the Police Officer has proceeded to the spot, seized the articles and later registered the FIR without obtaining any permission of the Magistrate either for search or seizure and arrested the accused persons. It is well-settled principle by the Hon'ble Supreme Court in the case of Lalitha Kumari at paragraph 120, which is as under:
"Conclusion/Directions:
120. In view of the aforesaid discussion, we hold:11
120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if 12 information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
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120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days.
The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all
information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
9. Constitution Bench of the Hon'ble Supreme Court provides an exception for doing preliminary enquiry in order to verify whether it is a cognizable offence or not in order to register the FIR. Admittedly, the Police officer went to the spot and with the help of a decoy, the Police officer got confirmed that the petitioner was selling Covishield vaccine to the public at Rs.500/- per head and 14 the vaccination had been stolen from the Primary Health Centre at Manjunathanagar, which is nothing but misappropriation and misusing the material which is meant for pandemic relief material and using, selling the same is an offence under Section 53 of the Disaster Management Act, but after confirming the information, the Police Officer has not chosen to prepare the complaint and send to the Police Station for the purpose of registering the case and for taking any permission from the Magistrate. On the other hand, the Police Officer took the action by arresting the accused and seizing the articles which amounts to investigation. Even if the case is made out for cognizable offence, the Police are required to register the case and then take action. In a non-cognizable offence, even the Police cannot register the case, without taking permission and they cannot proceed to take action either seizure or arrest of a person, which amounts to violation of procedure.
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10. Section 53 of the Disaster Management Act is extracted as under;
"53. Punishment for misappropriation of money or material, etc.- Whoever, being entrusted with any money or materials, or otherwise being, in custody of, or dominion over, any money or goods, meant for providing relief in any threatening disaster situation or disaster, misappropriates or appropriates for his own use or disposes of such money or materials or any part thereof or willfully compels any other person so to do, shall on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine."
11. On a bare reading of Sections 52 and 53 of the Disaster Management Act reveals that the act committed by the petitioner comes within the purview of the Sections 52 and 53 of the Act, but not under the provisions of Sections 420, 380, 403 or 409 of IPC as argued by learned SPP-I. 16
12. On perusal of the Station House Diary where there is an entry regarding credible information received by the Police that vaccinations were given to the public by taking money but even in the Station House Diary, it was not mentioned that he had no time to register the FIR and the nature of the offence committed, but it says, only he has deputed a Police constable for bringing panchas, which means he has proceeded to the spot with panchas for seizure and later searched and seized the articles along with cash and apprehended accused Nos.1 and 2, which is nothing but action taken in pursuance of the information received amounting to investigation commenced without registering the FIR. First of all, even if the Police registers the FIR for the offence punishable under Disaster Management Act, without permission of the Court, he cannot investigate the matter as per Section 155(2) of Cr.P.C. which is a non-cognizable offence. Here in this case, no FIR has been registered, but action has been taken which is a clear violation of the provisions of Section 154 of Cr.P.C. and also the guidelines issued by the 17 Hon'ble Supreme Court in the case of Lalitha Kumari stated supra. It appears that the Police willfully added Sections 380, 403, 409 and 420 of IPC which are all cognizable offences. Therefore, without registering the FIR, taking any action, seizing the articles amounts to investigation prior to registering the FIR, which is violation of the provisions of Section 154 of Cr.P.C. and against the guidelines issued in the case Lalitha Kumari stated supra. The authority of the Police to search and seize assumes only after registering the FIR, otherwise the Police have no authority to search and seize or arrest any person which is nothing but violation of fundamental rights guaranteed under Article 21 of the Constitution of India. The Hon'ble Supreme Court in the case of Justice K.S.Puttaswamy (Retd.) stated supra has held that if at all the petitioner is found to have committed any offence under Disaster Management Act, the Police, after making an enquiry and even after seizing the same could have submitted a report to the appropriate authority for taking action as per Rule 3 of the Disaster Management (Notice of Alleged Offence) 18 Rules 2007 (for short 'Rules'). For the sake of convenience, Section 3 of the Rules is extracted as under;
"3. Notice of alleged offence and intention to make a complaint.-- A notice under clause (b) of section 60 of the Act by a person, of the alleged offence and his intention to make a complaint shall be delivered to, or left at, the office of one of the following--
(a) in the case of the Central Government, except where the complaint relates to a railway, the Secretary incharge of the concerned Ministry or the Department in that Government;
(b) in the case of the Central Government where the complaint relates to a railway, the General Manager of that railway;
(c) in the case of State Government, the
Secretary incharge of the concerned
Department in that Government;
(d) in the case of the National Authority, the Secretary or, if there is no Secretary, the Additional Secretary, of the National Authority;19
(e) in the case of a State Authority, the Chief Executive Officer of the State Authority;
(f) in the case of a District Authority, the
Chief Executive Officer of the State
Authority."
13. A reading of Section 60 of the Disaster Management Act makes it clear that the Court cannot take cognizance of an offence under this Act, except on a complaint made by the authorities mentioned under sub-sections (a) and (b) of Section 60 of the Disaster Management Act. The petitioner being a government doctor who is entrusted with the work of vaccinating the public heading in the Primary Health Centre at Manjunathanagar is a government servant working under the government department coming within the purview of Section 55 of the Disaster Management Act. The prosecution is not able to produce even a single piece of paper to show that the Police officer recorded the reasons in writing before proceeding to the spot for seizing the same. The 20 panchanama itself reveals that the articles were seized in front of the panchas and thereafter, a suo motu complaint came to be registered by the PSI. The offences mentioned in the complaint are punishable under Sections 420, 409, 403 of IPC or 380 of IPC, which are cognizable offences.
Though the Police Officer has power to arrest the accused without warrant, but not without registering the FIR, which otherwise amounts to violation of Section 154 of Cr.P.C. Therefore, the learned Senior counsel rightly contended that there is a gross violation of Section 154 of Cr.P.C. Though the learned SPP-I relied upon the judgment of the Hon'ble Supreme Court in the case of Anjan Dasgupta vs. The State of West Bengal and others in Criminal Appeal No.298/2006 and the order passed in Crl.P.No.3073/2020 and connected matters by a co- ordinate Bench of this Court considering the bail petition, the same are not applicable to the case on hand. It is only for a limited purpose of considering grant of bail. In the case of Ajnan Dasgupta stated supra, the Police visited the spot, received the complaint from the informant and 21 then went to the Police Station for registering the case. A careful perusal of the said order goes to show that prior to registering the complaint for the offence under Section 302 of IPC, UDR was also registered in UDR No.43/2020. Later, the UDR was converted into FIR under Section 154 of Cr.P.C. The facts and circumstances of the said case cannot be applicable to the case on hand. Once the Police registers the UDR, they are permitted to make enquiry under Section 174 of Cr.P.C. The Police visited the spot and later received the complaint and forwarded it to the Police Station for registering the FIR. But, here in this case, the Police though visited the spot and sent a Police Constable as a decoy and confirms the offence, but the Investigating Officer has not sent any written complaint to the Police Station through other Police Constable for registering the FIR, for taking action. Even otherwise, as already held above, the vials or vaccine supplied by the Government to the Primary Health Centre, Manjunathanagar for free vaccination to the public has been misused and misappropriated by the petitioner which 22 is in her dominion is punishable under Section 53 of the Disaster Management Act but not under Sections 420, 403, 409 of IPC.
14. As already held above, the Police Officer has no authority to arrest or seize any article without registering the FIR and also has no power to arrest in a non- cognizable offence without a warrant or permission of the Magistrate. That apart, the offence under Disaster Management Act is a non-cognizable offence and it cannot be proceeded without permission of the Magistrate as per Section 155(2) of Cr.P.C. Therefore, the contention of learned SPP-I is not acceptable that the arrest and seizure conducted by the Investigating Officer is only a preliminary enquiry.
15. On the other hand, the act of the Police arresting the petitioner, seizing the articles prior to registering of the FIR is illegal and search and seizure in non-cognizable offences amounts to violation of right of privacy and the liberty guaranteed under Article 21 of Constitution of India. 23 Therefore, registering the FIR after conducting the investigation is bad in law in view of the principles laid down by the Hon'ble Supreme Court in the case of Lalitha Kumari stated supra. Therefore, the Police shall not be allowed to conduct investigation, which amounts to abuse of process of law. Hence, the FIR registered against the petitioner requires to be quashed.
16. Accordingly, the writ petition is allowed.
The FIR registered against the petitioner in Crime No.110/2021 by Annapoorneshwari Nagar Police Station, dated 20.05.2021 is hereby quashed. However, the appropriate government and authorities under the DHO is competent to submit report and take action against the erring official for misusing the vaccine and misappropriation said to have been committed at the Primary Health Centre, Manjunathanagar at Rajajinagar ward.
Sd/-
JUDGE mv