Shri.Nanasaheb S/O. Ramappa ... vs The State Of Karnataka
2021 Latest Caselaw 2367 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 24TH DAY OF JUNE 2021

                      BEFORE

          THE HON'BLE MRS.JUSTICE M.G.UMA

          CRIMINAL PETITION NO.102344/2018

BETWEEN

SHRI NANASAHEB S/O.RAMAPPA SOUNDALGI,
AGE-MAJOR, OCC-BUSINESS,
R/O.HOUSE NO.108, CHIKKAS GALLI,
CHINCHALI, TQ-RAIBAG, DIST-BELAGAVI.
                                     ...PETITIONER

(BY SRI SABEEL AHAMED, ADVOCATE FOR
SRI A.S.PATIL, ADVOCATE)

AND

THE STATE OF KARNATAKA,
THROUGH RAIBAG POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                      .......RESPONDENT
(BY SRI VINAYAK S.KULKARNI, AGA)

     THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C., SEEKING TO QUASH THE FIR REGISTERED BY THE
RESPONDENT POLICE IN CRIME NO.363/2018 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 32, 34 AND 41
                                 -2-




OF KARNATAKA EXCISE ACT, 1965 IN SO FAR AS
PETITIONER IS CONCERNED, IN THE INTEREST OF JUSTICE
AND EQUITY.

     THIS PETITION COMING ON FOR ADMISSION ON THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioner/accused No.2 is before this Court

seeking to quash the FIR registered by the

respondent/complainant in Crime No.363/2018 of Raibag

Police Station for the offences punishable under Sections

32, 34 and 41 of Karnataka Excise Act, 1965 (for short 'the

K.E Act, 1965') against accused Nos.1 and 2 on the basis of

the first information lodged by Sri Shivanand S.Lamani,

P.S.I. of Raibag Police Station.

2. Brief facts of the case are that the informant

lodged the first information with Raibag Police against

accused Nos.1 and 2 stating that he had received credible

information regarding sale of liquor pouches near Bekkeri

bus stand in the public place. Immediately, he along with

his staff and panchas proceeded to the spot at 19:45 hours.

He found accused No.1 carrying a bag. On enquiry and

verification, it is found that the person is accused No.1 who

was carrying liquor pouches and was selling it to the

general public illegally. The contraband was seized in the

presence of panchas under a seizure mahazar. There were

in all 35 malt whisky pouches of 90 ml each. On enquiry,

accused No.1 informed that he had purchased those liquor

pouches from accused No.2 who is running 'New Ambika

Bar' in Soundalagi. Accused No.1 was not having any

licence to sell the liquor. Therefore, he requested the police

to register case against both the accused and initiate legal

action. Accordingly, Crime No.363/2018 of Raibag Police

Station was registered against accused Nos.1 and 2 for the

above said offences and investigation was undertaken.

3. Aggrieved by initiation of criminal proceedings by

registering FIR, accused No.2 has approached this Court

seeking to quash the criminal proceedings initiated against

him.

4. Heard Sri Sabeel Ahmed, learned counsel for Sri

A.S.Patil, the learned counsel for the petitioner and Sri

Vinayak S.Kulkarni, the learned AGA for the respondent-

State.

5. Learned counsel for the petitioner submitted that

the petitioner is arrayed as accused No.2. He has not

committed any offence as alleged. Infact the petitioner was

initially running his liquor shop in Soundalagi and

subsequently as per the order passed by the Excise

Department he was permitted to shift his shop to Jalalapur

village. Therefore, there is no truth in the allegation made

against the present petitioner and no prima-facie case is

made out for registration of FIR. The investigation in the

matter would prejudice the petitioner badly. Hence, he

prays for allowing the petition.

6. Per Contra, the learned AGA representing the

respondent submitted that accused No.1 was caught red

handed along with contraband which were seized in the

presence of panchas under the seizure mahazar. Accused

No.1 specifically named accused No.2 as he sold the liquor

illegally for the purpose of selling. Under such

circumstances, FIR was registered and investigation was

undertaken. No prejudice would be caused to the petitioner

if the investigation is undertaken. Since there are prima-

facie materials against the accused No.2, the inherent

powers under Section 482 of Cr.P.C. may not be exercised.

Hence, he prays for dismissal of the petition.

7. Perused the materials on record. In the light of

the rival submissions, the point that would arise for my

consideration is,

"Whether the criminal proceedings initiated against the petitioner/accused No.2 is liable to be quashed?"

My answer to the above point is in the 'Negative' for

the following reasons:

REASONS

8. On the basis of credible information received by

the informant he was working as P.S.I. in Raibag Police

Station and proceeded to the spot and caught accused No.1

red handed along with 35 malt whisky pouches of 90 ml

each. It is stated that accused No.1 referred to the name of

accused No.2 and stated that it was accused No.2 who sold

those whisky pouches for the purpose of selling. On the

basis of this information, FIR was came to be registered for

the above said offences.

9. It is the contention of the learned counsel for the

petitioner that the petitioner is innocent and has not

committed any offence. It is his further contention that as

per the order dated 23.08.2018, petitioner No.2 is

permitted to shift his liquor shop to Jalalapur village of

Raibag Taluka. Therefore, he is no longer running any liquor

shop in Chinchali. Therefore, allegations made against him

are all false and it does not call for investigation.

10. The position of law regarding the exercise of

powers under Section 482 of Cr.P.C. is very well settled the

Hon'ble Apex Court recently in its decision in M/s

Neeharika Infrastructure Pvt. Ltd. Vs. State of

Maharashtra and others1 referred to its earlier judgments

on the subject and highlighted the principles of law at

paragraph No.10, which reads as under :

"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

AIR 2021 SC 1918

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to

secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned

Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the

alleged accused, the court when it exercises the power

under Section 482 Cr.P.C., only has to consider whether

or not the allegations in the FIR disclose the commission

of a cognizable offence and is not required to consider on

merits whether the allegations make out a cognizable

offence or not and the court has to permit the

investigating agency/police to investigate the allegations

in the FIR."

(Emphasis supplied)

11. These principles that are highlighted by the

Hon'ble Apex Court disclose that the Court should not stall

the investigation into the cognizable offence when there are

prima facie materials to constitute an offence. The inherent

power under Section 482 of Cr.P.C. for quashing the

criminal proceedings is to be exercised squaringly under the

rarest of rare cases. It is also made clear that at the

primary stage of investigation, the Court cannot embark

upon an enquiry as to the reliability, genuineness or

otherwise of the allegations made in the FIR and the

complaint and that the criminal proceedings should not be

scuttled at the initial stage. If with these principles, the

facts and circumstances of the case and the contention

taken by the petitioner is considered, it is not a fit case for

exercising inherent powers under Section 482 of Cr.P.C.

Where the petitioner has already shifted his business from

Chincholi to Jalalapur as contended by him and where the

information given by accused No.1 regarding purchase of

liquor pouches from accused No.2 is true or not? are all the

matter for investigation. Therefore, it is not proper for this

Court at this stage to form an opinion to hold that accused

No.1 has given false information and that accused No.2 has

not committed any offence. Under such circumstances, I am

not inclined to exercise the inherent powers under Section

482 of Cr.P.C. Accordingly, I answer the above point in the

negative and the petition is dismissed as devoid of merits.

In view of dismissal of the petition, I.A.No.1/2018

does not survive for consideration. Accordingly, same is

also disposed off.

The Registry is directed to forward a copy of this order

to the Trial Court forthwith, for information.

Sd/-

JUDGE ckk