IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5757 OF 2013 BETWEEN:
1. SMT.JAYASHREE @ JAYA W/O.MAHESH SINGH AGED ABOUT 54 YEARS JAYANAGAR JAYANAGAR THANA MADHUBANA DISTRICT BIHAR STATE NOW RESIDING AT:
GREAT PRABHATH CIRCUS PREMISES HOSUR TAMILNADU STATE-635 109 2. SAIBABA S/O.PRATHAP SINGH @ MUTHURAJAPPA AGED ABOUT 65 YEARS R/AT ANNAPURA NILAYA AVR ROAD, KANAKAPURA RAMANAGARAM DISTRICT-571 511 3. BASAVARAJU S/O.MALLANAGOWDA AGED ABOUT 48 YEARS WORKING IN GREAT PRABHATH CIRCUS, R/AT MARUTHI NILAYA NEAR ST.MARY’S SCHOOL GANDHINAGAR TUMKUR-572 102 4. SMT.UMA W/O.LATE GOVINDARAJU AGED ABOUT 48 YEARS R/AT MARUTHI NILAYA NEAR ST.MARY’S SCHOOL GANDHINAGAR TUMKUR-572 102 … PETITIONERS (BY SRI HASHMATH PASHA, SENIOR COUNSEL FOR M/S.HASHMATH PASHA & ASSOCIATES, ADVOCATES) AND:
STATE OF KARNATAKA BY KENGERI POLICE STATION AND CID POLICE BANGALORE CITY-560 060 REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR …RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR REGISTERED IN CRIME NO.234/2013 OF KENGERI POLICE STATION, BANGALORE CITY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned senior counsel for petitioners and learned Additional Special Public Prosecutor for respondent and perused the record.
2. Petitioners are accused Nos.2 to 5 in FIR registered in Crime No.234/2013 for the offences punishable under Sections 341, 342, 344, 363, 470 and 374 of IPC, Sections 23 and 26 of Juvenile Justice Act, 1986 and Section 14 of the Child Labour (Prohibition & Regulation) Act, 1986.
3. Learned senior counsel appearing for the petitioners has assailed the registration of FIR on the following grounds:
(i) The Dy.SP, who conducted the raid was not empowered with the powers of a Police Officer to conduct any raid and hence, the initiation of proceedings against the petitioners is illegal and opposed to law.
In support of this submission, learned senior counsel has placed reliance on the decision of this Court in the case of N.Rajachar vs Sri Kodandarama reported in ILR 2002 KAR 2909 with specific reference to para-18 thereof.
(ii) The raid was conducted before registration of FIR contrary to the law laid down by the Constitution Bench of the Supreme Court of India in the case of Lalita Kumari v. Govt. of U.P. reported in (2014)2 SCC 1 and on the same point, he has also placed reliance on the decision of this Court in the case of L.Shankaramurthy and Others vs. State by Lokayuktha Police reported in 2012 SCC OnLine Kar 8923.
4. Learned Additional Special Public Prosecutor, however, argued in support of the impugned action and sought for dismissal of the petition.
5. The basic facts are not in dispute. On receipt of a report from Bachapan Bachavo Andolan, the Dy.SP of CID conducted a surprise raid on the Circus company run by petitioners and ten persons involved in Circus activities were arrested; amongst them, two girls were less than 14 years of age and others were less than 18 years of age. Hence, he lodged a complaint before Kengeri Police. Based on this complaint, FIR came to be registered against the petitioners herein under Sections 341, 342, 344, 363, 370 and 374 of IPC, Sections 23 and 26 of the Juvenile Justice Act, 1986 and Sections 13 and 14 of the Child Labour (Prohibition and Regulation) Act, 1986.
6. The first contention of learned senior counsel for petitioners that the Dy.SP, who conducted the raid had no authority to conduct the raid, does not arise for consideration at this stage, as Dy.SP has not registered the case nor conducted any part of investigation. He was merely an informer, insofar as the registration of FIR is concerned. Undisputedly, he was a Police Officer. Since the information divulged to him disclosed commission of a cognizable offence, as per Section 41 of Cr.P.C., he was entitled under law to search and to arrest any person involved in the alleged offence. The panchanama prepared by him making a record of the raid cannot be construed as complaint or investigation. Undisputedly, FIR was registered by the Police Inspector of Kengeri Police Station, who was competent to register FIR and therefore, the registration of FIR in the instant case does not suffer from any illegality as sought to be made out.
7. Insofar as the raid conducted by the Dy.SP is concerned, the facts discussed above clearly indicate that no FIR was registered before conducting the raid by the Dy.SP. The raid was not part of any investigation. The formal investigation had commenced only after registration of FIR. In this context, it may be relevant to refer to para-10 of a decision of the Division Bench of this Court in the case of Girishchandra & Anr. vs. The State by Lokayuktha Police, Yadgir reported in ILR 2013 Kar 983:
“10. With regard to the question whether registration of FIR should precede the investigation or that FIR could be registered under the midst of the process of investigation would always depend upon the facts and circumstances of each case. In a situation where an offence is committed right in the presence of a Police Officer, it would be imprudent to insist that he should rush to the police station to record the FIR. The Police Officer should immediately act, like apprehending the accused, sending the victim to medical treatment etc., and thereafter registration of FIR would be an ideal investigation procedure. Otherwise, in all other type of cases, registration of FIR is mandatory since an FIR is to be sent to the Court at the earliest stage, so that no manipulating and tampering of facts would be possible. If the FIR is sent to the Court, all further investigation should necessary be consistent with the FIR.”
8. The proposition laid down in the above decision squarely applies to the facts of this case. It is made clear that it should not be understood to mean that the Police Officers are entitled to proceed with the investigation without registration of FIR. Registration of FIR before commencement of investigation is the rule as laid down by the Constitution bench in Lalita Kumari’s case. But in the instant case, having regard to the circumstances of the case, no illegality has been committed in initiating the proceedings by the respondent-Police. In the decision relied on by the learned senior counsel for the petitioners in L.Shankaramurthy’s case, FIR came to be registered under the provisions of the Prevention of Corruption Act, 1988 and having regard to the nature of the offences, it was held that the raid conducted by the Police before registration of the FIR was illegal. In the instant case, the factual matrix is entirely different. Therefore, proposition laid down in the said decision is not applicable to the facts of this case.
9. The last contention urged by the learned senior counsel for the petitioners also cannot be accepted. The facts narrated above go to show that ‘child’ as defined under the provisions of the Act were found employed in Circus. Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 reads as under:
“3. Prohibition of employment of children in certain occupations and processes.—No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on:
Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government.”
As the material on record prima facie discloses that “child” as defined under the said Act were found employed in the occupations set out at Sl.No.17 of Part A of the Schedule, there is no scope for interference in the investigation at this stage.
Having regard to the above facts, I do not find any justifiable grounds to quash the proceedings. Accordingly, the petition is dismissed.
In view of dismissal of the petition, IA.No.1/2016 does not survive for consideration and the same is disposed of accordingly.
Sd/- JUDGE LB