IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7094 OF 2014 BETWEEN:
1. SHANTHAKUMAR AGED 31 YEARS, S/O SIDDEGOWDA, R/AT RANGASAMUDRA, T.NARASIPURA TALUK, MYSORE DISTRICT-571124.
2. H N AKSHAYAKUMAR AGED ABOUT 19 YEARS, S/O.LATE NARASIMHA, R/AT NO.6, 9TH CROSS, 12TH BLOCK, SHAKTHINAGAR, MYSORE-570019.
3. MRS BHAGYA R AGED ABOUT 31 YEARS, D/O.RAJU, R/AT NO.6, 9TH CROSS, 12TH BLOCK, SHAKTHINAGAR, MYSORE-570019. ... PETITIONERS (BY SRI: M.T.NANAIAH, SENIOR ADVOCATE A/W SRI: PRABHUGOUD B.TUMBIGI, ADVOCATE) AND THE STATE OF KARNATAKA BY UDAYAGIRI POLICE STATION, MYSORE. ... RESPONDENT (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIRST INFORMATION REPORT REGISTERED IN CRIME NO.299/2014 DATED 23.09.2014 FOR THE OFFENCES P/U/S 143, 144, 120(B) R/W 149 OF IPC AND U/S 20, 27 OF INDIAN ARMS ACT BY UDAYAGIRI POLICE, MYSORE, MYSORE TOWN, PENDING ON THE FILE OF THE II-ADDL. & JMFC, MYSORE AND DISMISS THE COMPLAINT THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are accused Nos.3, 7 and 8 in Crime No.299/2014 registered for the offences punishable under Sections 143, 144, 120B r/w Section 149 of Indian Penal Code and Sections 20 and 27 of the Indian Arms Act, 1969.
2. Heard learned senior counsel appearing for the petitioners, learned Additional State Public Prosecutor appearing for the respondent and perused the records.
3. Learned senior counsel appearing for the petitioners, at the outset, would submit that the proceedings initiated against the petitioners suffer from basic illegality, inasmuch as, arrest and investigation has taken place before registration of the FIR contrary to the provisions of Section 154 of Cr.P.C. as well as the law laid down by the Constitution Bench of the Hon’ble Supreme Court of India in Lalitha Kumari vs. Government of U.P. reported in (2014) 2 SCC 1.
4. Refuting this submission, learned Additional State Public Prosecutor, placing reliance on the decision of this Court in Girishchandra and another Vs. State by Lokayuktha Police, Yadgir reported in 2013(5) Kar.L.J.470 would submit that mere illegality in the procedure followed by the Investigating Agency cannot be a ground to quash the proceedings, as no prejudice has been caused to the accused on that account.
5. Considered the submissions and perused the records.
6. The undisputed facts are that, the Police Inspector attached to the City Crime Investigation Branch (for short “CCIB”), on receiving credible information on 23.9.2014, proceeded near the house of petitioner No.3 and found 6-7 persons making preparation to commit murder of someone and on seeing the police team, aforesaid 6-7 persons tried to run away from the spot. They were surrounded and were arrested and on inspection of Innova car bearing registration No.KA11 MC 747 and Scorpio Car bearing registration No.KA32 M 4374 various weapons were seized under the mahazar in the presence of panchas. After returning to the police station, the Police Inspector of CCIB lodged a written report, based on which, FIR came to be registered by Udayagiri police for the above offences.
7. The above facts undisputedly disclose that the accused were arrested and incriminating materials were seized from their possession before registration of the FIR. The law is now well settled that without registration of FIR, the police are not entitled to embark upon any investigation. Therefore, the question that arises for consideration is whether in the backdrop of the above facts the arrest of accused persons and the seizure of incriminating materials amount to investigation so as to offend the provisions of Section 154 of Cr.P.C?
8. Section 41 of the Cr.P.C. empowers any police officer, without an order from a Magistrate and without a warrant, to arrest any person, who commits a cognizable offence in the presence of a police officer. Section 102 of Cr.P.C. empowers any police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence.
9. The registration of FIR is mandatory under Section 154 of Cr.P.C. Section 154 of Cr.P.C. prescribes that, 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 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.
10. The Hon’ble Supreme Court expounding the law on the subject has now authoritatively laid down that, ‘word “shall” used in Section 154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR’.
11. In the instant case, complainant was a police officer attached to CCIB. He acted within the powers under Sections 41 and 102 of Cr.P.C. The question of registering FIR and embarking upon investigation would arise only when a report was lodged to the officer in-charge of a police station as prescribed in Section 154(1) of Cr.P.C. Undisputedly, the Police Inspector of CCIB was not the Police Officer in-charge of a police station. On the other hand, he being the Police Officer who having received credible information of commission of an offence, was well within his powers to arrest the accused and to seize and take possession of incriminating materials which were suspected to be involved in the commission of offence. In that view of the matter, in my view, the respondent has not violated any provisions of law.
12. In this regard, it may be apposite to refer to the ruling of the Division Bench of this High Court in Girishchandra and another Vs. State by Lokayuktha Police, Yadgir reported in 2013(5) Kar.L.J.470 wherein in paragraph 10 it is held as under:
“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.”
13. In the instant case, stage of registration of FIR arose only after the Police Inspector, CCIB lodged a report. The Station House officer of Udayagiri Police Station registered an FIR based on the said report and only thereafter they have embarked upon investigation. The arrest and seizure done by the Police Officer, CCIB, therefore, cannot be construed either as an “enquiry” or an “investigation” as defined under the Code. On the other hand, facts of the case clearly disclose that the alleged offences having been committed in the presence of a Police Officer, the said Police Officer was required to take action before reaching the police station to lodge the report. Therefore, I do not find any error or illegality whatsoever in the procedure adopted by the Police Inspector of CCBI in arresting and seizing the incriminating materials and thereafter, lodging the FIR. Therefore, I do not find any justifiable reasons to quash the proceedings on that ground.
Consequently, petition is dismissed.
Sd/- JUDGE bkp