Dr M K Pushpitha vs State Of Karnataka
2021 Latest Caselaw 3104 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4th DAY OF AUGUST, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

              WRIT PETITION No.10241 of 2021

BETWEEN

DR. M.K. PUSHPITHA
D/O. M.J. KUMAR,
AGED ABOUT 25 YEARS,
RESIDING AT NO.138, 13TH MAIN,
ITI LAYOUT, NAGARBHAVI, 2ND STAGE,
BENGALURU - 560 072.
                                               ...PETITIONER

(BY SRI HASHMATH PASHA, SENIOR COUNSEL
ALONG WITH SRI NASIR ALI, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      BY ANNAPOORNESHWARI NAGAR POLICE STATION,
      BENGALURU CITY - 560 072.

2.    MR. CHANDRASHEKAR S.G.
      POLICE SUB-INSPECTOR,
      ANNAPOORNESHWARI NAGAR POLICE STATION,
      BENGALURU - 560 072.

BOTH ARE REPRESENTED BY LEARNED
GOVERNMENT ADVOCATE,
HIGH COURT OF KARNATAKA,
BENGALURU
                                          ...RESPONDENTS

(BY SRI V.M. SHEELAVANTH, SPP-I
ALONG WITH SRI MAHESH SHETTY, HCGP)
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     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE FIR REGISTERED IN CRIME
NO.110/2021 OF ANNAPOORNESHWARI NAGAR POLICE
STATION, BENGALURU, AND ALL FURTHER PROCEEDINGS,
WHICH IS REGISTERED FOR OFFENCES PUNISHABLE UNDER
SECTIONS 380, 403, 409 AND 420 READ WITH SECTION 34 OF
THE INDIAN PENAL CODE AND UNDER SECTION 53 OF THE
DISASTER MANAGEMENT ACT, 2005 AS PER ANNEXURE-A,
WHICH IS PENDING ON THE FILE OF HON'BLE IV ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU, AS AN
ABUSE OF PROCESS OF LAW.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.07.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:

                           ORDER

The petitioner/accused No.1 has filed this petition for

quashing the FIR registered in Crime No.110/2021

registered by Annapoorneshwari Nagar Police Station,

Bengaluru and all further proceedings for the offences

punishable under Sections 380, 403, 409, 420 read with

Section 34 of IPC and Section 53 of the Disaster

Management Act, pending on the file of the IV Additional

Chief Metropolitan Magistrate, Bengaluru, as an abuse of

process of law.

2. Heard the arguments of Sri Hashmath Pasha,

learned Senior counsel along with learned counsel Sri Nasir

Ali appearing for the petitioner/accused No.1 and Sri

V.M.Sheelavanth, learned SPP-I along with Sri Mahesh

Shetty, learned High Court Government Pleader for the

respondents

3. The case of the petitioner/accused No.1 is that on

the suo motu complaint of Chandrashekar S.G., PSI of

Annapoorneshwari Nagar Police Station (respondent No.2

herein) the case came to be registered in Crime

No.110/2021 for the aforesaid offences. It is alleged by

the Police Officer in his complaint dated 20.05.2021 that

he received credible information that at ITI Layout, 6th

Main road, Mallathahalli, Bengaluru, in one of the houses,

some persons are giving Covishield vaccination to the

public by collecting Rs.500/- per head illegally and the

vials were stolen from government Primary Health Centre.

Immediately, he secured women constables, other police

constables along with panchas, visited the said address

and sent a Constable as decoy and after confirming the

complaint, apprehended accused Nos.1 and 2. The

petitioner who is said to be a Doctor working in a Primary

Health Centre at Manjunathanagar in Rajajinagar ward has

stolen the Covishield vaccine from the hospital and illegally

vaccinating the public by collecting Rs.500/- per head.

Then the Investigating Officer seized the remaining

Covishield vials and empty vaccine bottles, syringes and

used syringes under the panchanama. It is also revealed

that the said house belonged to accused No.2 who is a

friend of accused No.1, the present petitioner. They also

seized Rs.12,000/- from her possession, brought her to the

Police Station and registered the case. Subsequently, the

petitioner is said to have been released on bail. Hence, the

petitioner/accused No.1 has filed this petition for quashing

the FIR and all further proceedings for the aforesaid

offences as an abuse of process of law on various grounds.

4. Sri Hashmath Pasha, learned Senior counsel

contended that registering the FIR after apprehending the

accused is illegal. Therefore, registering the FIR, seizing

the articles and preparing the panchanama after arresting

the petitioner is in violation of the procedure under Section

154 and 155(2) of Cr.P.C.

5. Learned Senior counsel also contended that the

offence under Section 53 of the Disaster Management Act

is a non-cognizable offence which is punishable with two

years of imprisonment and also with fine and as per

Schedule II of Cr.P.C., the offence is non-cognizable.

Therefore, without obtaining the permission of the

Magistrate under Section 155(2) of Cr.P.C., proceeding to

the spot, seizing the articles, arresting the accused is in

violation of the provisions of law and also raiding the

house is nothing but breach of fundamental rights of

privacy guaranteed under Article 21 of the Constitution of

India. Learned Senior counsel also contended that the

offences under Sections 380, 403, 409, 420 of IPC are not

attracted as there is no theft or cheating. The Police have

invoked the said provisions by implicating the petitioner

falsely. The Police gets the authority to seize the articles

and arrest the accused only after registering the FIR

otherwise it amounts to violating the fundamental rights as

well as the procedure prescribed under the Cr.P.C. In

support of his case, learned counsel relied upon a decision

of a co-ordinate Bench of this Court in the case of

L.Shankaramurthy and others vs. State by

Lokayuktha Police, City Division, Bangalore Urban

Division, Bangalore, reported in 2012 SCC OnLine Kar.

8923 and the decision of the Hon'ble Supreme Court in

the case of Lalitha Kumari vs. Government of Uttar

Pradesh and others reported in (2014) 2 SCC 1. Also,

in respect of right of privacy, learned Senior counsel relied

upon a judgment of the Hon'ble Supreme Court in the case

of Justice K.S. Puttaswamy (Retd.) and another

vs. Union of India and others reported in (2017) 10

SCC 1.

6. Per contra, Sri V.M. Sheelavanth, learned SPP-I,

objected the petition and contended that the

petitioner/accused No.1 being a Doctor working in a

Primary Health Centre situated at Manjunathanagar in

Rajajinagar was supposed to administer vaccine to the

public in the government hospital which is meant for free

of cost has carried the Covishield vials to a private place of

long distance away from the hospitals and kept in the

house of accused No.2, who is her friend and administered

the same to the public by collecting Rs.500/- per head,

which amounts to theft of government property from the

place of work and also using it for his own purpose or

selling the same is nothing but mis-appropriation and

cheating the government. Moreover, selling the same to

the public after taking Rs.500/- per head is an offence

under the provisions of Indian Penal Code as well as under

Section 53 of the Disaster Management Act.

7. Further, the learned SPP-I contended that the Police,

before proceeding to the spot, registered the information

received in writing in the Station Diary and then proceeded

to the spot, apprehended the accused, seized the articles

and brought to the Police station, registered the case and

then arrested the petitioner. Therefore, there is no

violation of any of the provisions of law either under

Section 154 or 155 of Cr.P.C. The Investigating Officer

has no definite information as to whether the offence

committed is cognizable or non-cognizable in order to

prepare the FIR prior to ascertaining the nature of offence.

Therefore, he sent a Police Constable as a decoy and after

confirming the crime, he apprehended, seized the empty

bottles and vials of Covishield vaccine, but by that time

already the petitioner has vaccinated many persons by

collecting Rs.500/- per head. Selling the vaccine which is

meant for free of cost for Rs.500/- is nothing but selling it

in the black market. The Investigating Officer has

ascertained the offence only on the spot and thereafter

arrested the petitioner as such, there is no violation of any

of the provisions of law and also there is no violation of

any of the fundamental right of the petitioner by raiding

the spot. Hence, prayed for dismissal of the petition.

8. Upon hearing the arguments and on perusal of the

records, it is not in dispute that the petitioner is a Doctor

working in the Primary Health Centre at Manjunathanagar

in Rajajinagar ward and her services were appreciated by

the Minister by felicitating her as per the photographs

produced by the petitioner's counsel. However, the fact

remains that accused Nos.1 and 2 were arrested at

Annapoorneshwari Nagar Police limits. In the house of

accused No.2, the petitioner/accused No.1 was found to be

administering Covishield vaccine to the public by

maintaining a note-book and receiving Rs.500/- per head

and already emptied 3 vials and two more vials were in her

possession. The used syringes as well as unused syringes,

in all, 24 syringes and two syringes filled with Covishield

vaccine were seized by the Police. As per Section 53 of

the Disaster Management Act, the offence is punishable

upto two years of imprisonment and with fine and a non-

cognizable offence requires permission of the Magistrate

for seizure and arrest. The fact remains that the Police got

the information on 20.05.2021 at 3.30 p.m. that some

persons are administering Covishield vaccine to the public

by collecting Rs.500/- per head, which is meant for free of

cost. That was the only information received. Whether

the accused was a Doctor and giving vaccination is not

known to the Investigating Officer. Though, the

Investigating Officer has written in the Station House Diary

that information is received regarding some persons

vaccinating the public by collecting Rs.500/- per head, but

not registered the FIR and not chosen to get permission of

the Magistrate. Thereafter, the Police Officer has

proceeded to the spot, seized the articles and later

registered the FIR without obtaining any permission of the

Magistrate either for search or seizure and arrested the

accused persons. It is well-settled principle by the Hon'ble

Supreme Court in the case of Lalitha Kumari at

paragraph 120, which is as under:

"Conclusion/Directions:

120. In view of the aforesaid discussion, we hold:

120.1. 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 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.

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."

9. Constitution Bench of the Hon'ble Supreme Court

provides an exception for doing preliminary enquiry in

order to verify whether it is a cognizable offence or not in

order to register the FIR. Admittedly, the Police officer

went to the spot and with the help of a decoy, the Police

officer got confirmed that the petitioner was selling

Covishield vaccine to the public at Rs.500/- per head and

the vaccination had been stolen from the Primary Health

Centre at Manjunathanagar, which is nothing but

misappropriation and misusing the material which is meant

for pandemic relief material and using, selling the same is

an offence under Section 53 of the Disaster Management

Act, but after confirming the information, the Police Officer

has not chosen to prepare the complaint and send to the

Police Station for the purpose of registering the case and

for taking any permission from the Magistrate. On the

other hand, the Police Officer took the action by arresting

the accused and seizing the articles which amounts to

investigation. Even if the case is made out for cognizable

offence, the Police are required to register the case and

then take action. In a non-cognizable offence, even the

Police cannot register the case, without taking permission

and they cannot proceed to take action either seizure or

arrest of a person, which amounts to violation of

procedure.

10. Section 53 of the Disaster Management Act is

extracted as under;

"53. Punishment for misappropriation of money or material, etc.- Whoever, being entrusted with any money or materials, or otherwise being, in custody of, or dominion over, any money or goods, meant for providing relief in any threatening disaster situation or disaster, misappropriates or appropriates for his own use or disposes of such money or materials or any part thereof or willfully compels any other person so to do, shall on conviction be punishable with imprisonment for a term which may extend to two years, and also with fine."

11. On a bare reading of Sections 52 and 53 of the

Disaster Management Act reveals that the act committed

by the petitioner comes within the purview of the Sections

52 and 53 of the Act, but not under the provisions of

Sections 420, 380, 403 or 409 of IPC as argued by learned

SPP-I.

12. On perusal of the Station House Diary where there is

an entry regarding credible information received by the

Police that vaccinations were given to the public by taking

money but even in the Station House Diary, it was not

mentioned that he had no time to register the FIR and the

nature of the offence committed, but it says, only he has

deputed a Police constable for bringing panchas, which

means he has proceeded to the spot with panchas for

seizure and later searched and seized the articles along

with cash and apprehended accused Nos.1 and 2, which is

nothing but action taken in pursuance of the information

received amounting to investigation commenced without

registering the FIR. First of all, even if the Police registers

the FIR for the offence punishable under Disaster

Management Act, without permission of the Court, he

cannot investigate the matter as per Section 155(2) of

Cr.P.C. which is a non-cognizable offence. Here in this

case, no FIR has been registered, but action has been

taken which is a clear violation of the provisions of Section

154 of Cr.P.C. and also the guidelines issued by the

Hon'ble Supreme Court in the case of Lalitha Kumari

stated supra. It appears that the Police willfully added

Sections 380, 403, 409 and 420 of IPC which are all

cognizable offences. Therefore, without registering the

FIR, taking any action, seizing the articles amounts to

investigation prior to registering the FIR, which is violation

of the provisions of Section 154 of Cr.P.C. and against the

guidelines issued in the case Lalitha Kumari stated supra.

The authority of the Police to search and seize assumes

only after registering the FIR, otherwise the Police have no

authority to search and seize or arrest any person which is

nothing but violation of fundamental rights guaranteed

under Article 21 of the Constitution of India. The Hon'ble

Supreme Court in the case of Justice K.S.Puttaswamy

(Retd.) stated supra has held that if at all the petitioner is

found to have committed any offence under Disaster

Management Act, the Police, after making an enquiry and

even after seizing the same could have submitted a report

to the appropriate authority for taking action as per Rule 3

of the Disaster Management (Notice of Alleged Offence)

Rules 2007 (for short 'Rules'). For the sake of convenience,

Section 3 of the Rules is extracted as under;

"3. Notice of alleged offence and intention to make a complaint.-- A notice under clause (b) of section 60 of the Act by a person, of the alleged offence and his intention to make a complaint shall be delivered to, or left at, the office of one of the following--

(a) in the case of the Central Government, except where the complaint relates to a railway, the Secretary incharge of the concerned Ministry or the Department in that Government;

(b) in the case of the Central Government where the complaint relates to a railway, the General Manager of that railway;

      (c)    in the case of State Government, the
            Secretary     incharge   of    the        concerned
            Department in that Government;

(d) in the case of the National Authority, the Secretary or, if there is no Secretary, the Additional Secretary, of the National Authority;

(e) in the case of a State Authority, the Chief Executive Officer of the State Authority;

      (f)    in the case of a District Authority, the
             Chief   Executive    Officer   of   the   State
             Authority."

13. A reading of Section 60 of the Disaster Management

Act makes it clear that the Court cannot take cognizance of

an offence under this Act, except on a complaint made by

the authorities mentioned under sub-sections (a) and (b)

of Section 60 of the Disaster Management Act. The

petitioner being a government doctor who is entrusted

with the work of vaccinating the public heading in the

Primary Health Centre at Manjunathanagar is a

government servant working under the government

department coming within the purview of Section 55 of the

Disaster Management Act. The prosecution is not able to

produce even a single piece of paper to show that the

Police officer recorded the reasons in writing before

proceeding to the spot for seizing the same. The

panchanama itself reveals that the articles were seized in

front of the panchas and thereafter, a suo motu complaint

came to be registered by the PSI. The offences mentioned

in the complaint are punishable under Sections 420, 409,

403 of IPC or 380 of IPC, which are cognizable offences.

Though the Police Officer has power to arrest the accused

without warrant, but not without registering the FIR, which

otherwise amounts to violation of Section 154 of Cr.P.C.

Therefore, the learned Senior counsel rightly contended

that there is a gross violation of Section 154 of Cr.P.C.

Though the learned SPP-I relied upon the judgment of the

Hon'ble Supreme Court in the case of Anjan Dasgupta

vs. The State of West Bengal and others in Criminal

Appeal No.298/2006 and the order passed in

Crl.P.No.3073/2020 and connected matters by a co-

ordinate Bench of this Court considering the bail petition,

the same are not applicable to the case on hand. It is only

for a limited purpose of considering grant of bail. In the

case of Ajnan Dasgupta stated supra, the Police visited

the spot, received the complaint from the informant and

then went to the Police Station for registering the case. A

careful perusal of the said order goes to show that prior to

registering the complaint for the offence under Section

302 of IPC, UDR was also registered in UDR No.43/2020.

Later, the UDR was converted into FIR under Section 154

of Cr.P.C. The facts and circumstances of the said case

cannot be applicable to the case on hand. Once the Police

registers the UDR, they are permitted to make enquiry

under Section 174 of Cr.P.C. The Police visited the spot

and later received the complaint and forwarded it to the

Police Station for registering the FIR. But, here in this

case, the Police though visited the spot and sent a Police

Constable as a decoy and confirms the offence, but the

Investigating Officer has not sent any written complaint to

the Police Station through other Police Constable for

registering the FIR, for taking action. Even otherwise, as

already held above, the vials or vaccine supplied by the

Government to the Primary Health Centre,

Manjunathanagar for free vaccination to the public has

been misused and misappropriated by the petitioner which

is in her dominion is punishable under Section 53 of the

Disaster Management Act but not under Sections 420, 403,

409 of IPC.

14. As already held above, the Police Officer has no

authority to arrest or seize any article without registering

the FIR and also has no power to arrest in a non-

cognizable offence without a warrant or permission of the

Magistrate. That apart, the offence under Disaster

Management Act is a non-cognizable offence and it cannot

be proceeded without permission of the Magistrate as per

Section 155(2) of Cr.P.C. Therefore, the contention of

learned SPP-I is not acceptable that the arrest and seizure

conducted by the Investigating Officer is only a preliminary

enquiry.

15. On the other hand, the act of the Police arresting the

petitioner, seizing the articles prior to registering of the

FIR is illegal and search and seizure in non-cognizable

offences amounts to violation of right of privacy and the

liberty guaranteed under Article 21 of Constitution of India.

Therefore, registering the FIR after conducting the

investigation is bad in law in view of the principles laid

down by the Hon'ble Supreme Court in the case of Lalitha

Kumari stated supra. Therefore, the Police shall not be

allowed to conduct investigation, which amounts to abuse

of process of law. Hence, the FIR registered against the

petitioner requires to be quashed.

16. Accordingly, the writ petition is allowed.

The FIR registered against the petitioner in Crime

No.110/2021 by Annapoorneshwari Nagar Police Station,

dated 20.05.2021 is hereby quashed. However, the

appropriate government and authorities under the DHO is

competent to submit report and take action against the

erring official for misusing the vaccine and

misappropriation said to have been committed at the

Primary Health Centre, Manjunathanagar at Rajajinagar

ward.

Sd/-

JUDGE mv