Somashekhrappa vs The Karnataka Lokayukta

L. Narayana Swamy, J.—Though the matter is listed for Admission, with the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal and disposed of by this order. The proceedings initiated against the petitioner by the Karnataka Lokayukta, Belgaum Police Station, in Crime No. 14 of 2011 under the provisions of Prevention of Corruption Act, 1988 (for short "the Act") on the file of IV Additional District & Sessions Judge, Belgaum is under challenge in this petition and the petitioner is seeking for quashing of the same.

The facts, leading to the case, are that the respondent-Lokayukta Police, Belgaum registered the case against the petitioner for the offence punishable under Sections 17 and 13(1)(d) of the Act. The case registered against the petitioner is contrary to the provisions of the Code of Criminal Procedure (for short "CrPC) to the effect that the mahazar for conducting raid without an FIR is in contravention of Section 154 CrPC and also the judgment of the Hon''ble Supreme Court on this point. In support of his submission the learned counsel referred to the judgment of the Hon''ble Supreme Court in the case of Samaja Parivarthan Samudaya v. State of Karnataka reported in 2012 SCW 3323; and judgment of this Court in the case of L. Shankaramurthy v. The State by Lokayukta Police passed in Criminal Petition No. 3213 of 2012 and connected matters disposed of 3rd September 2012. He also referred to another judgment of this Court in the case of Ramesh Desai and Another v. The State of Karnataka in Criminal Petition No. 15461 of 2011 disposed of on 7th July 2011, wherein it has been held that raid and mahajar and other furtherance shall proceed only after registration of FIR. The learned counsel for the petitioner further submits that in the instant case, on 25th June 2011 the respondent-Lokayukta Police, on credible information conducted raid and drawn panchanama. Thereafter, FIR was registered.

The learned counsel for the respondent-Lokayukta Police submitted that a credible information was received and in order to find out the credibility of the information, a search was made and a raid was conducted and thereafter since undisclosed cash was found, the panchanama was drawn and that does not contravene Section 154 CrPC and without loss of time an FIR was registered. Hence, the same does not contravene the provisions and also the judgments referred to by the learned counsel for the petitioner.

In similar circumstance, this Court, in the case of D.R. Sadiq Shariff V. State of Karnataka by the Police of Lokayukta Chamarajanagar District in Criminal Petition No. 2458 of 2012 disposed of on 8th January 2013 has held that the whole procedure adopted by the respondent in that case is not recognised by law and it is illegal; the registration of the case based on the seizure mahazar, is bad in law, and therefore, all, further proceedings pursuant to registration of the case in the said Criminal Petition are liable to be quashed.

Further, this Court in the case of L. Shankaramurthy (supra) has ruled that the procedure followed by the police in proceeding to conduct a raid and seizure of incriminating materials without registering the case as required by Section 154 of the CrPC is an abuse of the process of law.

In the case of Samaja Parivarthana Samudaya (supra), the Hon''ble Supreme Court has held that the machinery of criminal investigation is set into motion by the registration of First Information Report by the specified Police Officer of the jurisdictional Police Station or otherwise and the police officer can proceed to investigate the case only after registration of the case as required by Section 154 of CrPC.

The Hon''ble Supreme Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , as to the requirement of the registration of the case by an officer in charge of the Station House whenever a communication was received and then to proceed for investigation, has observed in paragraphs 30 to 33 of the judgment, has observed thus:

The legal mandate enshrined in Section 154(1) is that every information relating to the commission of a "cognizable offence" (as defined u/s 2(c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer incharge of a police station" (within the meaning of Section 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Investigation Report" and which act of entering the information in the said form is known as registration of a crime or a case.

At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with he mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered u/s 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.

Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expression, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ''reasonableness'' or ''credibility'' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ''every complaint or information'' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ''every complaint'' preferred to an officer in charge of a police station shall be reduced in writing. The word ''complaint'' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ''information'' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

Section 154 of the Code of Criminal Procedure reads thus:

Information in cognizable cases.

(1) 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 writing or reduced to writing as aforesaid, shall be signed by the person giving 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.

(2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

A reading of the above provision makes it clear that the said Section shall authorise the officers to proceed further for raid or other investigations. Such information is sufficient to call itself as FIR; no matter whatever the source of it. This position is well-settled by the Hon''ble Supreme Court in the case of Manoj Vs. State of Madhya Pradesh, . Even the credibility of information should find a place in FIR, as that is the starting point of criminal case. The submissions of the learned counsel for the respondent that the raiding party went to the spot to find out credibility does not vitiate Section 154 CrPC, does not bear any legal force in view of the judgment of the Hon''ble Supreme Court in the case of Ramesh Kumari Vs. State (N.C.T. of Delhi) and Others, . At paragraph 3 of the said judgment, it is held that genuineness or otherwise of the information can only be considered after registration of the case. Genuineness or credibility of the information is not a condition precedent for registration of a case. Further, at paragraph 5 of the judgment it is observed that Section 154 of the CrPC is mandatory and the concerned officer is duty-bound to register the case on the basis of any such information disclosing cognizable offence.

From the complaint which is produced as Annexure-A, it discloses that on a credible information received on 25th June 2011 the raiding party went to the spot, seized the cash to tune of Rs. 9,88,697/-, mahazar was drawn on the same date at 14.20 hours and they were booked for the offence punishable under Sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1998, since they have not satisfactorily explained the source of the cash; and thereafter the case was registered. The facts of this case, undisputedly, discloses that the raid and mahazar was not preceded by registering FIR as per Section 154 of the Code of Criminal Procedure.

In the light of the discussion made above, the registering of the case against the petitioner in Crime No. 14 of 2011 on the file of IV Additional District & Sessions Judge, Belgaum is required to be set aside. Accordingly, it is set aside. Petition allowed.