P.S. Kusumalatha and Others vs The State and Others

S.N. Satyanarayana, J.

Crl.P. No. 3708/2013

The petitioner herein is accused in Crime No. 12/2012 registered with Lokayukta Police pending in Crime No. 194/2012 on the file of Prl. District and Sessions Judge, Hassan. Same was registered on the basis of complaint by 2nd respondent for the offences punishable under Sections 7 , 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The petitioner has come up in this petition seeking quashing of aforesaid complaint.

The allegation in complaint dated 03.12.2012 by 2nd respondent is that, he had approached the petitioner, who is Deputy Director of Land Records, working as Technical Assistant to Deputy Commissioner, Hassan, at the relevant point of time, seeking durasthi of land bearing Sy. No. 24 measuring to an extent of 6 Acres situated in Hebbaranahalli Village Kasaba Hobli, Arasikere. According to him, application was submitted on 17.07.2012 seeking durasthi of the aforesaid property, which had come to the office of the petitioner on 06.11.2012. When he went to enquire about the status of the file on 29.11.2012, it is stated that a sum of Rs. 1,00,000/- was demanded by the petitioner to attend to his application for Durasth. Hence, complaint was filed on 03.12.2012.

In this proceeding, it is stated that on 03.12.2012, he approached Lokayukta Police informing about the illegal demand of petitioner and at that time, a voice recorder was provided to him to record the alleged demand of petitioner, which according to petitioner is contrary to Section 154 of Code of Criminal Procedure (Cr.P.C. for short).

Crl.P. No. 3307/2013,

The accused in Crime No. 5/2013 registered with Lokayutka Police pursuant to a complaint filed by 2nd respondent herein and pending on the file of II Addl. District and Sessions Judge, Tumkur, for the alleged offences punishable under Sections 7 , 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, has come up in this petition seeking quashing of the same.

It is stated that on 18.04.2013, 2nd respondent filed a complaint alleging that the 1st respondent is seeking bribe of Rs. 4,500/- for registering the permit lease in the office of R.T.O., where he was working as Stenographer at the relevant point of time. It is stated that prior to filing of the complaint, he had approached Lokayukta on 15.04.2013 with reference to the alleged demand during which time a voice record is said to have been given to him to record the alleged demand. Thereafter, complaint was registered on 18.04.2013 and trap was laid subsequently.

Crl.P. No. 5880/2013

Accused No. 2 in C.C. No. 8/2013 pending on the file of the District and Special Judge, Kolar, has come up in this petition seeking quashing of the proceedings registered pursuant to the complaint filed by 1st respondent on 12.09.2012. It is her case that the complaint was filed by the 1st respondent against one Devamurthy, FDA in the office of the Sub-Registrar, Sreenivasapura Taluk, who is said to have demanded Rs. 5,000/- from the complainant - 2nd respondent. It is stated that the petitioner herein, who was working as Sub-Registrar at the relevant point of time, directed Devamurthy to receive money on her behalf and to deliver the same to her in the evening. Based on that, the complaint was registered, investigation was conducted and chargesheet is also filed, pursuant to which, the case is registered in C.C. No. 8/2013.

This petition is filed challenging registering of the criminal complaint based on charge sheet for the reason that in the FIR., her name was not mentioned anywhere and earlier to filing of the complaint on 12.09.2012, complainant had approached Lokayukta Police on the same day in the morning. At that time, he was provided with voice recorder and with the help of the same, it is stated that the complaint was registered and followed and trap was also conducted pursuant to that. It is also stated that during the pendency of investigation, a criminal petition was filed by the petitioner herein in Crl.P. No. 7692/2012 seeking quashing of the FIR., which came to be dismissed by order dated 18.06.2014 in view of the chargesheet being filed.

Crl.P. No. 3646/2013

Accused Nos. 1 to 3 in Crime No. 30/2013 registered with Lokayukta Police pursuant to complaint filed by 2nd respondent for the offence punishable under Section 7 of the Prevention of Corruption Act and pending on the file of XXIII Addl. City Civil and Sessions Judge, Bangalore, have come up in this petition seeking quashing of the same. In this proceeding, the complaint is filed on 10.04.2013. It is stated that one week prior to filing of the complaint, the complainant - 2nd respondent had approached Lokayukta Police and secured the voice recorder from them to assist laying of trap. It is stated that thereafter, the complaint is registered on 10.04.2013. Crime registered on the same day in Crime No. 30/2013.

In all these petitions, the common point that is urged by the learned counsel for petitioners seeking quashing of respective complaint is that the proceeding initiated in all these matters is contrary to the provisions of Section 154 of the Code of Criminal Procedure in the prosecution assisting the complainants for gathering information even before the complaint is registered, which is contrary to the judgment rendered by this Court in the matter of L. Shankaramurthy and Others Vs. State, and in the matter of Ramesh Desai and another Vs. The State of Karnataka by Raichur Lokayukta Police Station ( 2012(3) KCCR 1738) and also another judgment rendered by Division Bench of this Court in Crl.P. No. 15941/2012 c/w Crl.P. No. 15852/2012 disposed of on 05.02.2013 in the matter of Girishchandra and another Vs. The State by Lokayukta Police, Yadgir.

Sri. Venkatesh P. Dalwai, learned Spl.PP for Lokayuktha would submit that the legal position with reference to this is clear. He would try to submit that providing of voice recorder as it is alleged in all these cases is not in the process of investigation, the same would at best be considered as preliminary enquiry as permissible under Section 154 of Cr.P.C. The legal position with reference to that is well settled in the light of following decisions;

a) The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi,

(b) Lalita Kumari Vs. Govt. of U.P. and Others, and

(c) Narmada Bachao Andolan Vs. State of Madhya Pradesh and Another, .

(d) Yusufalli Esmail Nagree Vs. The State of Maharashtra, .

With this the point that arise for consideration to this Court is, whether entrustment of voice recorder to first informant for recording of conversation of accused with him or her or their representative would amount to investigation in the process of collection of evidence of preliminary enquiry as contemplated under Section 154 of Cr.P.C.?

Heard the learned counsel for the petitioners and respondents. Learned Counsel Sri. Bhagawat would submit that the principle laid down in the matter of L. Shankaramurthy and others Vs. State by Lokayukta Police was referred to larger Bench and the larger Bench while accepting the aforesaid principle, proceeded to confirm the judgment rendered in the matter of L. Shankaramurthy. It is also contended that the aforesaid three judgments are taken up in special leave petition to Hon''ble Apex Court, where the matter is pending consideration. Therefore, even before the same could be decided, these petitions cannot be considered either for admission or for disposal. Thereafter by staying further proceedings these petitions should be kept in abeyance to await the decision in aforesaid SLP. Further, he would submit that, even otherwise in the light of judgment in L. Shankaramurthy being confirmed by the larger bench accepting the same the prosecution, which are under challenge in these four petitions should be quashed.

Per contra, the learned Spl.PP for Lokayuktha would try to distinguish Shankaramurthy''s case, where the raid was conducted by the Lokayukta Police without registering the complaint and at the time of raid, seizure panchanama was drawn at the spot and after coming back to the Police Station, FIR., was registered. The proceeding in that was conducted in wrong manner, hence, it was quashed. The ratio of the said judgment would not apply to the present cases, which is distinguishable on facts. He would distinguish Ramesh Desai''s case on three counts: firstly, voice sample in the voice recorder provided to the complainant did not match with the voice sample of the accused as per the FSL report; secondly, in the aforesaid matter, sanction to prosecute the accused was denied twice by the authorities and thirdly, there was enough material on record to demonstrate that the complainant had long standing enmity with the accused. The relevant paragraph where it is discussed is at paragraph No. 8.

Learned Spl.P.P., for Lokayukta further relied upon the judgment of Apex Court in the matter of The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, by taking this Court through the relevant paragraphs, which are 8, 13 and 18.

The first question is whether the enquiry made by him before he obtained the permission of the Magistrate was "investigation" within the meaning of the provisions of the Code of Criminal Procedure. Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer incharge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 which prescribes the procedure in the matter of such an investigation can be initiated either on information or otherwise. It is clear from the said provisions that an officer incharge of a police station can start investigation either on information or otherwise. Under S.4(1) of the Code of Criminal Procedure, "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police-officer Or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf." This Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, at pp. 1157-58, described the procedure prescribed for investigation under Ch. XIV of the Code of Criminal Procedure thus:

"Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under section 173 ."

Did Mathur, the Sub-Inspector, make such an investigation before he obtained the permission of the Magistrate under s.5A of the Act? Ex. P-113 shows that Khanna, the Railway Sectional Officer, received through a source information that the accused was in the habit of misappropriating Government money by not accounting for the sale proceeds of blank paper and other tickets; it also indicates that the information received by the said officer was not vague, but contained precise particulars of the acts of misappropriation committed by the accused. On April 26, 1956 he sent a report of the information received to the Superintendent of Police, Special Police Establishment, Lucknow, indicating to him that if a proper investigation was made many more cases of misappropriation would come to light. On the receipt of the said report, matter was entrusted to the said Mathur, a Sub-Inspector of Police of the Special Police Establishment, Lucknow. As P.W. 20 he describes the steps he had taken pursuant to the information given in the said report. He verified the allegations contained in the information given by Khanna, saw the relevant railway records after taking the permission of the Station Master and found the information given to be correct. On the basis of the information collected, he submitted a report. But the full details of the enquiry were not mentioned therein. He also did not prepare any case diary in respect of the said enquiry. The said report is not in the record. We may assume that the Sub-Inspector did nothing more than what he states he did in his evidence. Even so the said police officer received a detailed information of the offence alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts constituted an investigation within the meaning of the definition of "investigation" under s.4(1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned counsel for the State in support of his contention that there was no investigation in the present case are rather wide off the mark. In In re Anandayya AIR 1915 Mad 312 a division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was not an investigation within the meaning of s.157 of the Cr.P.C. In In Re : M. Rangarajulu Naidu and others, , Ramaswami J., of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case:

"......hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts."

This graphic description of the stages is only a restatement of the principle that a, vague information or an irresponsible rumour would not in itself constitute information within the meaning of S. 154 of the Code or the basis for an investigation under S.157 thereof. In the State of Kerala v. M.J. Samuel, ILR (1960) Ker 783 a full Bench of the Kerala High Court ruled that, "it can be stated as a general principle that it is not every piece of information however vague, indefinite and unauthenticated it may be that should be recorded as the First Information for the sole reason that such information was the first, in point of time, to be received by the police regarding the commission of an offence." The full Bench also took care to make it clear that whether or not a statement would constitute the First Information Report in a case is a question of fact and would depend upon the circumstances of that case. These and such other decisions were given in the context of the question whether an information given was the First Information within the meaning of S. 154 of the Code: they are not of much relevance in considering the question whether in a particular case a police officer has made an investigation of a cognizable offence within the meaning of S.157 of the Code; that would depend upon the nature of the information received by the police officer, and the steps taken by him for ascertaining the ''truth of the information and for detecting the crime."

"13. The argument of the learned counsel for the respondent may be elaborated thus: Whenever there is a consistent disregard of the provisions of the Code of Criminal Procedure in the matter of investigation it must be held almost in all cases that it has prejudiced the accused in the matter of trial, for otherwise it would enable a police officer below the rank of Deputy Superintendent of Police to make an investigation free from the statutory safeguards designed to prevent the abuse of police powers, to secure the necessary information and thereafter to take the requisite permission of the Magistrate and then to shape his investigation to achieve the desired result or to implement his scheme. No doubt this practice, if it exists, must be condemned; but the question is, does the infringement of the salutary provisions of the Act in the matter of investigation, without more, invalidate the trial? If we accept the broad proposition advanced by the learned counsel, we would be disregarding the provisions of S.537 of the Code of Criminal Procedure; we would be ignoring an honest body of compelling evidence on the basis of the dereliction of duty by the police. The question is not whether in investigating an offence the police have disregarded the provisions of the Act, but whether the accused has been prejudiced by such disregard in the matter of his defence at the trial. It is, therefore, necessary for the accused to throw a reasonable doubt that the prosecution evidence is such that it must have been manipulated or shaped by reason of the irregularity in the matter of investigation, or that he was prevented by reason of such irregularity from putting forward his defence or adducing evidence in support thereof. But where the prosecution evidence has been held to be true and where the accused had full say in the matter, the conviction cannot obviously be set aside on the ground of some irregularity or illegality in the matter of investigation: there must be a sufficient nexus, either established or probabilized, between the conviction and the irregularity in the investigation. In this case, as we have earlier pointed out, not only the trial was fair and the evidence convincing, but even the earlier defect was rectified by having practically a de novo investigation in strict compliance with the provisions of the Code of Criminal Procedure. We cannot, therefore, hold that the accused has been prejudiced by the illegality committed by the police in the first stage of the investigation."

"18. What is investigation is not defined in the Code of Criminal Procedure; but in H.N. Rishbud and Inder Singh Vs. The State of Delhi, this Court has described the procedure for investigation as follows:

"Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consists of (a) the examination of various persons (including accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filling of a charge-sheet under S.173 ."

This Court, however, has not said that if a police officer takes merely one or two of the steps indicated by it, what he has done must necessarily be regarded as investigation. Investigation, in substance, means collection of evidence relating to the commission of the offence? The Investigating Officer is, for this purpose, entitled to question persons who, in his opinion, are able to throw light on the offence which has been committed and is likewise entitled to question the suspect and is entitled to reduce the statements of persons questioned by him to writing. He is also entitled, to search the place of the offence and to search other places with the object of seizing articles connected with the offence. No doubt for this purpose he has to proceed to the spot where the offence was committed and do various other things. But the main object of investigation being to bring home the offence to the offender the essential part of the duties of an Investigating Officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking up the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it. No doubt, S.5A of the Prevention of Corruption Act was enacted for preventing harassment to a Government servant and with this object in view investigation, except with the previous permission of a Magistrate, is not permitted to be made by an officer below the rank of a Deputy Superintendent of Police. Where however, a Police Officer makes some preliminary enquiries, does not arrest or even question an accused or question any witnesses but merely makes a few discreet enquiries or looks at some documents without making any notes, it is difficult to visualise how any possible harassment or even embarrassment would result there from to the suspect or the accused person. If no harassment to the accused results from the action of a Police Officer how can it be said to defeat the purpose underlying S.5A? Looking at the matter this way, I hold that what Mathur did was something very much short of investigation and, therefore, the provisions of S.5A were not violated. Since no irregularity was committed by him there is no occasion to invoke the aid of the curative provisions of the Code."

In the aforesaid matter, the judgment of conviction passed by the trial Court was reversed by the High Court on the basis that the investigation material was collected even before the investigation was commenced, thereafter, investigation was concluded and charge sheet was filed and the accused was convicted. The said procedure was found fault with by the High Court, which set aside the order of conviction and thereafter, the Apex Court while considering the Special Leave Petition, reversed the judgment of the High Court in confirming the conviction order passed by the trial Court for the reasons stated in the aforesaid paragraphs.

The learned Spl.PP for Lokayuktha would rely upon the judgment of the Apex Court in the matter of Narmada Bachao Andolan Vs. State of Madhya Pradesh and Another, by taking this Court through relevant paragraph 59, which reads as under:

"PRECEDENCE - Doctrine:

The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi Vs. Gurnam Kaur, ; Government of Karnataka and Others Vs. Smt. Gowramma and Others, and State of Haryana and Another Vs. Dharam Singh and Others, ."

Both counsel rely upon the judgment rendered by the Constitution Bench of the Apex Court in the matter of Lalita Kumari Vs. Govt. of U.P. and Others, . Learned counsel for petitioner in these petitions would rely upon sub-para Nos. (i), (ii) and (iii) of paragraph No. 111 and learned Spl. P.P., for Lokayukta would rely upon sub-para (vi) of para 111 of the said judgment, which reads as under;

"111) In view of the aforesaid discussion, we hold:

i) 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.

ii) 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.

iii) 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.

vi) 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."

Learned Spl.PP also would also rely upon another judgment rendered in the matter of Yusufalli Esmail Nagree Vs. The State of Maharashtra, , in which the statement of accused recorded is used against him, which was challenged on the ground that there is infringement of fundamental right under Article 20(3) of the Constitution and also violation of Sec. 154 of Cr.P.C. The Apex Court in the aforesaid judgment at paragraph 9 has held as under:

Counsel claimed protection under Art.20(3) of the Constitution against the use of the statements made by the appellant on August 2, 1960. He argued that by the active deception of the police, the appellant was compelled to, be a witness against himself. Had the appellant known that the police had arranged a trap, he would not have talked as he did. Compulsion may take many forms. A person accused of an offence may be subject to physical or mental torture. He may be starved or beaten and a confession may be extorted from him. By deceitful means he may be induced to believe that his son is being tortured in an adjoining room and by such inducement he may be compelled to make an incriminating statement. But we cannot say that in this case the appellant was compelled to be a witness against himself. He was free to talk or not to talk. His conversation with Shaikh was voluntary. There was no element of duress, coercion or compulsion. His statements were not extracted from him in an oppressive manner or by force or against his wishes. He cannot claim the protection of Art.20(3) . The fact that the tape recording was done without his knowledge is not of itself an objection to its admissibility in evidence. In saying so, the Court does not lend its approval to the police practice of tapping telephone wires and setting up hidden microphones for the purpose of tape recording.

Therefore, in the result this Court feel that the judgments relied upon by the learned counsel for the petitioners in L. Shankaramurthy and Ramesh Desai as against the judgments relied upon by the learned Spl.PP in, Bhagwant Kishore Joshi, Narmada Bachao Andolan and Yusufalli Esmail Nagree, it is clearly seen that the judgments relied upon by the counsel for petitioners have no nexus to the fact under consideration in these proceedings. The finding rendered in those judgments are totally under different circumstances, whereas in the four cases which are relied upon by the learned Spl.PP, they are directly on the point with reference to gathering of information by the complainant before registering the complaint with police and any assistance provided to the accused is rightly considered as preliminary enquiry and not an investigation. Infact, in Lalita Kumari''s case which is relied upon by both counsel with reference to paragraph 111 of the judgment, the contention of learned Spl.PP in relying upon clause (vi)(d) as relevant to the case on hand as against clause (i) to (iii) appears to be just and proper in the facts and circumstances of the case on hand.

In the light of aforesaid discussions, it is seen that the conduct of investigation officer in handing over voice recorder to first informant to record conversations that took place between accused and first informant/his representative is justifiable. The aforesaid act of Investigating Officer cannot be construed as investigation by any stretch of imagination. On going through the ratio laid down by the Apex Court in the aforesaid matters relied upon by the learned Spl.SPP, as rightly contended by him the same can be construed as preliminary enquiry. In the light of aforesaid discussion, this Court is of the opinion that providing of voice recorder to the complainant before registering the complainant does not amount to investigation as contemplated under Section 154 of Cr.P.C. At best it can be termed as preliminary enquiry before registering the complaint to make sure that a false complaint is filed against public officer to harass them unnecessarily with ulterior motive. Infact the said practice is more in the nature of protecting the interest of accused than in supporting the complainant in gathering incriminating material and information as and by way of investigation. Accordingly, all the four criminal petitions are dismissed.