IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1184/2019 Between:
Sri Yarriswami E.B S/o E.M. Bhimanna Aged about 45 years Occ: Agriculturist R/o Chikkagondanahally Village Chikkagondanahally Taluk Chitradurga – 577 502. ...Petitioner (By Sri Asim Malik, Advocate) And:
1.The State of Karnataka Represented by DCB Spl. Police Station Chitradurga Represented by State Public Prosecutor High Court Building Bangalore – 560 001 2. G. Lokesh Police Inspector DCB Spl. Police Station Chitradurga Represented by State Public Prosecutor High Court Building Bangalore – 560 001. ... Respondents (By Sri M. Divakar Maddur, HCGP for R1) This Criminal Revision Petition is filed under Section 397 r/w. Section 401 of Cr.P.C., praying to set aside the order dated 17.08.2019 passed by the Principal District and Sessions Judge, Chitradurga in Spl.C (NDPS) No.2/2018, thereby discharging the petitioner for the offence P/U/S 20(a)(b)(1)(c) of N.D.P.S Act.
This Criminal Revision Petition coming on for Dictating order, this day, the Court made the following:
ORDER This Criminal Revision Petition has been filed by the petitioner-accused No.1 challenging the legality and correctness of the order passed by the Principal District and Sessions Judge, Chitradurga in Spl.C (NDPS) No.2/2018 dated 17.08.2019, whereunder the application filed under Section 227 of Cr.P.C., for discharge of the accused came to be dismissed.
2. I have heard the learned counsel for the petitioner-accused No.1 and the learned Special Public Prosecutor for the respondent No.1-State.
3. The factual matrix of the case as per the case of the prosecution is that on 22.06.2017 at about 9.30 a.m., the Police Inspector received credible information that some narcotic drugs have been grown in Chikkagondanahalli village. Immediately, he informed the same to S.P. and Dy.S.P. After obtaining the requisite permission, along with panch witness and his staff he went to the said spot and found one person working in the aforesaid plantation and noticed that in the arecanut garden the ganja has been grown. Immediately, he caught hold the accused and enquired his name. Thereafter, the said plants were uprooted and by drawing a mahazar, same were seized. Thereafter, he came back to the police station and registered a case. On the basis of complaint, investigation has been completed and charge sheet has been filed. Thereafter, accused appeared before the Court and filed an application under Section 227 of Cr.P.C., to discharge him from the charges leveled against him.
4. The main grounds urged by the learned counsel for the petitioner is that immediately after receipt of credible information, he has not registered the case as contemplated under Section 154 of Cr.P.C., It is his further submission that if information discloses the commission of cognizable offence and if a case has not been registered and FIR has not been issued, then it is going to vitiate the entire proceedings. In order to substantiate the said contention he relied upon the decision in the case of Lalita Kumari v. Government of Uttar Pradesh & Ors., reported in (2014) 2 SCC 1. It is his further submission that the complainant is Police Inspector. Immediately, after receipt of information he went to the said spot and he has investigated the case by himself. It is his further submission that informant or complainant cannot be the Investigating Officer of the said case. If the said person is himself investigated the case, then there is apprehension of prejudice to the accused. In order to substantiate his contention, he relied upon the decision in the case of Mohan Lal v. State of Punjab reported in (2018) 17 SCC 627.
5. It is his further submission that the entire material if it is perused, it discloses that the material which has been seized is only leaves and as per the decision of this Court, the said material must contains seeds, buds and top of plants and other materials are not going to satisfy the ingredients of offence of ganja. In order to prove the said contention, he has relied upon the decision in the case of the State of Karnataka, Paper Town Police Station v. Sheshadri Shetty and Others reported in ILR 2004 KAR 218. It is his further submission that there is an error on part of the Court below while passing the impugned order. He further relied upon the Karnataka State Police Manual and submitted that if the said information is received telephonically or telegraphically, then the police officer is at liberty to verify the truthfulness and otherwise of the said information and he must go to the spot immediately. Thereafter, he has to take a complaint in writing and send it to the police station for registration of case and thereafter embark upon his investigation that itself clearly goes to show that a duty cost upon the police officer not to investigate the case immediately by himself. It is his further submission that the trial Court without looking into the said facts has wrongly passed the impugned order. On these grounds, he prays to allow the petition and to set aside the impugned order by discharging the accused.
6. Per contra, the learned Special Public Prosecutor vehemently argued and submitted that though PW.1 is the complainant but he received credible information and in order to verify the same, he went to the spot and he came to know that ganja has been grown in arecanut garden and immediately he apprehended the accused, drawn mahazar and registered the case and thereafter he handed over the case for further investigation to another police officer. It is his further submission that the present case has been investigated by four Investigating Officers and filed charge sheet against the accused. It is his further submission that he has made an entry in the Station House Diary what information he has received and thereafter, he held preliminary inquiry and in that light there is no error or illegality by the police officers while investigating the said case. It is his further submission that the ganja which has been seized is above commercial quantity and the proceedings which have been initiated clearly goes to show that the police officers have held all required procedures and after investigation, the charge sheet has been filed. It is further submitted that the Court below after considering all the material has come to a right conclusion and has rightly dismissed the application. On these grounds, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
8. The first and foremost contention taken up by the learned counsel for the petitioner-accused No.1 is that the police is required to register the case immediately on receipt of information about the cognizable offence and issue FIR as contemplated under Section 154 of Cr.P.C., The police officer is duty bound to register the first information report upon receipt of any information relating to commission of cognizable offence. In this regard, he has referred to decision in the case of Lalita Kumari (quoted supra) at para Nos.93 to 96, it has been observed as under:
93. The object sought to be achieved by registering the earliest information as FIR is inter alia twofold: one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc. later.
94. Principles of democracy and liberty demand a regular and efficient check on police powers. One way of keeping check on authorities with such powers is by documenting every action of theirs. Accordingly, under the Code, actions of the police, etc. are provided to be written and documented. For example, in case of arrest under Section 41(1)(b) of the Code, the arrest memo along with the grounds has to be in writing mandatorily; under Section 55 of the Code, if an officer is deputed to make an arrest, then the superior officer has to write down and record the offence, etc. for which the person is to be arrested; under Section 91 of the Code, a written order has to be passed by the officer concerned to seek documents; under Section 160 of the Code, a written notice has to be issued to the witness so that he can be called for recording of his/her statement, seizure memo/panchnama has to be drawn for every article seized, etc.
95. The police is required to maintain several records including case diary as provided under Section 172 of the Code, General Diary as provided under Section 44 of the Police Act, etc. which helps in documenting every information collected, spot visited and all the actions of the police officers so that their activities can be documented. Moreover, every information received relating to commission of a non- cognizable offence also has to be registered under Section 155 of the Code.
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.
9. I have given my thoughtful consideration to the said decision. In the said decision, though the Hon’ble Apex Court has mandated that immediately after receipt of cognizable offence, the case has to be registered and as contemplated under Section 154 of Cr.P.C., First Information Report has to be forwarded to the jurisdictional Court. Further it has been observed in the same decision that if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith.
10. It is further observed in the said decision that though the word ‘mandate’ has been used in the said decision but it has been further observed that the fact of such search and delay and cause of it must be reflected in the General Diary Entry so as to keep fairness and no prejudice is caused to the accused. It is further observed that preliminary inquiry may be conducted to certain classes of cognizable cases and in this regard it has been also mentioned that in the case of matrimonial disputes, family disputes, commercial offences, medical negligence cases, corruption cases or cases where there is abnormal delay/laches in initiating criminal prosecution are some of illustrations and it is further observed that it is not exhaustive of all cases which may warrant preliminary inquiry.
11. On going through the said proposition of law, if it is commercial offence and if the said offence requires a preliminary inquiry then the Investigating Officer can have preliminary inquiry, thereafter he can register the case. For the purpose of brevity, I quote paragraph Nos.119 and 120.1 to 120.8 119. Therefore, in view of various counterclaims regarding registration or non- registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
120. In view of the aforesaid discussion, we hold:
120.1 The 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 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 with 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.
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.
12. On going through the said proposition of law it makes it clear that though the said word ‘mandated’ is used but in certain case where the preliminary inquiry is required then some relaxation has to been given but nowhere it has been alleged that the Investigating Officer while investigating the case was prejudiced and a false case has been registered in this behalf. The conduct of Investigating officer in registering the case and issuance of FIR immediately and subsequently handed over the investigation to other Investigating Agency itself discloses the fact that he has done all the needs in the course of the preliminary inquiry. In the light of the discussion held by me, I am of the considered opinion that this contention of the petitioner is not having any force and the same is liable to be rejected.
13. The second contention which has been raised by the learned counsel for the petitioner-accused No.1 is that the complainant himself is Investigating Officer and as such the said act of the Investigating Officer is prejudiced and the entire investigation itself is going to vitiate. In order to substantiate his arguments, he has relied upon the decision in the case of Mohan Lal (quoted supra) at paragraph No.17 it has been observed as under:
17. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
14. I have carefully and cautiously gone through the said decision. It has been observed so in the said decision to hold a fair investigation. The very foundation of the trial has to be looked into and in that light informant or investigator must not be the same person and justice must not only be done but must appear to be done also. In that light, the said decision has been rendered by the Hon’ble Apex Court, but very recently the said decision of three Bench came before the larger Bench in the case of Mukesh Singh v. State (Narcotic Branch of Delhi) and similar issue has been discussed and now the matter has been deferred for further hearing. At this juncture, I feel that it is not just and proper by this Court to take up a view against or in favour of the decision quoted by the learned counsel for the petitioner/accused since the matter is subjudice.
15. I have carefully gone through the factual aspect of the case on hand. In this case, the police received information, went to the spot and after verification, he came to know that the accused had grown ganja. He inquired the accused and uprooted and seized the ganja by drawing a mahazar. Thereafter, he filed the complaint and handed over the investigation to other officer. The main ratio of the case with its object if it is looked into, it should not be mechanically made applicable. The said conduct of the Investigating Officer must give rise to a real and genuine apprehension in the mind of the accused and not mere fanciful, that the investigation was not fair. This has been observed in case of Mohan Lal at paragraph No.17 (quoted supra).
16. Be that as it may, nowhere the accused has made out a case that investigation was not fair and what prejudice has been caused to the accused. In that light, the contention is not applicable to the present facts of the case on hand. Hence, the same is rejected. However, subsequently if accused established during the course of trial about fairness of investigation and prejudice the trial Court can take into consideration the said aspect without consideration of the observation made in this order a liberty has been given to the accused to raise this issue at the time of final hearing of the case. At this juncture, the petitioner-accused No.1 has not made out any good grounds to set aside the impugned order.
In the light of the discussion held by me above, the petition is disposed off.
In view of disposal of main petition, I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE nms