Karnataka High Court

Sri Dayananda @ R Babu vs The State Of Karnataka on 4 April, 2024

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                                    CRL.RP No. 129 of 2021




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 04TH DAY OF APRIL, 2024              R
                        BEFORE
          THE HON'BLE MR. JUSTICE S RACHAIAH
      CRIMINAL REVISION PETITION NO. 129 OF 2021
BETWEEN:
1. SRI. DAYANANDA @ R BABU
   S/O M V RAJU
   AGED ABOUT 40 YEARS
   R/AT KUDINEERU MUDDANAHALLI VILLAGE
   RATNAPURI POST, HUNSUR TALUK
   MYSORE DISTRICT - 571 334.

2.    R. RAVI
      S/O K RAJU
      AGED ABOUT 31 YEARS
      R/AT, RATHNAPURA COLONY
      MAIN ROAD OF MARAMMA TEMPLE
      HUNSUR TALUK
      MYSURU DISTRICT - 34.
                                             ...PETITIONER

(BY SRI. PRATHEEP K C, ADVOCATE)

AND:
   THE STATE OF KARNATAKA
   REP. BY EXCISE SUB-INSPECTOR
   HUNSUR RANGE, HUNSUR TALUK
   MYSORE DISTRICT
   REP. BY ITS
   STATE PUBLIC PROSECUTOR
   HIGH COURT OF KARNATAKA
   BANGALORE - 01.
                                            ...RESPONDENT

(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENTS DATED 12.01.2021
PASSED BY THE VIII ADDITIONAL DISTRICT AND SESSIONS
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                                       CRL.RP No. 129 of 2021


JUDGE AT MYSURU SITTING AT HUNSUR IN CRL.A.NO.12/2016
AND IN C.C.NO.332/2009 DATED 26.12.2015 PASSED BY CIVIL
JUDGE AND JMFC AT HUNSUR AND ETC., ,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 16.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:



                            ORDER

1. This Criminal Revision Petition is filed by the

petitioners, being aggrieved by the judgment of conviction

dated 26.12.2015 and order of sentence dated 29.12.2015 in

C.C.No.332/2009 on the file of Civil Judge and JMFC, Hunsur

and its confirmation judgment and order dated 12.01.2021 in

Crl.A.No.12/2016 on the file of VIII Additional District and

Sessions Judge, Mysuru, Sitting at Hunsur seeking to set aside

the concurrent findings recorded by the Courts below, wherein

the petitioner/accused is convicted for the offences punishable

under Sections 32, 34 and 38-A of Karnataka Excise Act (for

short 'K.E.'Act).

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case are as under:

3. It is the case of the prosecution that on 24.11.2008

at about 10.15 a.m., the Sub-Inspector of Hunsur Excise Range

was deputed on patrolling duty along with his staff near

Challahalli Village. They have received credible information

that the accused were proceeding on the motorbike bearing

Reg. No.KA-09-X-4142 with box containing the liquor. The

officials of the Excise-Hunsuru Range have intercepted the said

vehicle and enquired about the permit and other related

documents to transport the said liquor. When the satisfactory

answer was not obtained by them, the Sub-Inspector of Excise

has arrested the accused and interrogated them and also

seized the items which were being carried by the accused.

After having seized the said liquor, the Sub-Inspector took the

samples of the said liquor for sending the same to FSL for

chemical analysis. As per the averments of the complaint, 48

bottles of liquor have been seized by the Sub-Inspector and

each bottle containing 180 ml of Original Choice Deluxe

Whiskey. The case came to be registered against the accused

Nos. 1 to 3. The respondent police have conducted

investigation and submitted charge sheet.

4. To prove the case of the prosecution, the

prosecution examined seven witnesses as P.W.1 to P.W.7 and

got marked 8 documents as Ex.P1 to P8 and also identified as

M.O.Nos.1 to 28. On the other hand, two documents were got

exhibited as Ex.D1 and Ex.D2 on behalf of the petitioners.

5. The Trial Court after appreciating the oral as well as

documentary evidence on record, convicted the petitioners for

the offences stated supra. Being aggrieved by the same, the

petitioner preferred an appeal before the Appellate Court, the

Appellate Court confirmed the judgment of conviction rendered

by the Trial Court. Being aggrieved by the same, the

petitioners/accused Nos.1 and 3 have preferred this revision

petition seeking to set aside the concurrent findings.

6. Heard Sri. Pratheep K.C., learned counsel for the

petitioners and Sri Rahul Rai.K, learned High Court Government

Pleader for the respondent - State.

7. It is the submission of learned counsel for the

petitioners that the concurrent findings recorded by the Courts

below in convicting the petitioners is contrary to the evidence

and settled principles of Law. Therefore, the impugned

judgments are required to be set aside.

8. It is further submitted that the evidence of P.W.7

who is the Investigating Officer which discloses that the FIR

was registered on 24.11.2008 at about 10.15 a.m. However,

the search and seizure was conducted between 8.30 a.m. to

8.45 a.m. i.e., before registration of FIR, the search and

seizure was conducted which is against to the settled principles

of law. Therefore, the registration of FIR after conducting

search and seizure itself is bad in law and the Court ought not

to have acted upon such FIR.

9. It is further submitted that the Trial Court and the

Appellate Court committed an error in appreciating the

documents which are marked as Ex.P1 to P8 in accordance with

law. Whenever there is a dispute regarding admission of the

document, the prosecution must have complied Section 294(3)

of Cr.P.C. In the absence of the said compliance, the document

ought not to have been considered for the purpose of analyzing

the evidence.

10. It is further submitted that the incriminating

material which is required to be put to the accused in the

statement recorded under Section 313 Cr.P.C., has not been

put to the accused properly. In the absence of proper

recording the statement under Section 313 Cr.P.C., it is not

appropriate to record the conviction, however, the Trial Court

recorded the conviction without following the procedure

established under law, therefore, it is necessary to interfere

with the said findings in order to secure the ends of justice.

Making such submission, the learned counsel for the petitioners

prays to allow the petition.

11. Per contra, Sri. Rahul Rai K, learned High Court

Government Pleader (for short 'HCGP') vehemently justifying

the concurrent findings and submits that the Trial Court and

Appellate Court rightly appreciated both oral and documentary

evidence on record and recorded the conviction.

12. It is further submitted that the Investigating Officer

after receiving the credible information, went to the spot and

arrested the accused and seized the items which were being

carried by the accused without having license and therefore,

the Investigating Officer could not obtain the permission of the

Magistrate which is required to be obtained as per Section 53 of

the Act, however, the Investigating Officer offered an

explanation under which circumstances he could not secure the

said permission and the said explanation is marked as Ex.P5,

which is in consonance with the provision under Section 54 of

the Act.

13. It is further submitted that the accused has not

explained nor produced any documents to show that they were

authorized to transport the said liquor to the destination. In

the absence of proper document being produced, registration of

case on the basis of the documents was appropriate. The

Courts below after appreciating the evidence, both oral and

documentary on record, recorded the conviction. Therefore,

interference with the said findings may not be proper. Having

submitted thus, learned HCGP prays to dismiss the petition.

14. After having heard the learned counsel for the

respective parties, it is necessary to consider as to whether

both the Courts have properly appreciated both the facts and

law to arrive at a conclusion regarding conviction.

15. On perusal of the entire documents, Ex.P1 is

considered as seizure mahazar under which liquor bottles have

been seized by stating that the accused were transporting it

without having any valid license. It is the submission of

learned counsel for petitioner that the search and seizure

conducted without registration of FIR in respect of cognizable

offence is bad in law is concerned, it is relevant to refer to the

provision under Sections 154 and 157 of Cr.P.C..

"154. 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:

[Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, [section 376A,section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:

Provided further that--

(a) in the event that the person against whom an offence under section 354, section 354A, section 354B,section 354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal

Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;

(b) the recording of such information shall be video graphed;

(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (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

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an officer in charge of the police station in relation to that offence.

157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a 80 police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:

Provided that--

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

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[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses

(a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that subsection,and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated."

On careful perusal of the above said provisions, it appears that

there are two kinds of FIRs namely, the FIR can be registered

by the informant which was duly signed by him. Secondly, the

FIR can be registered by the police officer himself on any

information received by him. In both the cases, the

information should be reduced into writing and thereafter, the

investigation must be carried out.

16. Ex.P1 being a panchanama, it cannot be termed as

a complaint. FIR cannot be registered on the basis of

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panchanama, however, in the present case, the respondent

has registered the FIR on the basis of panchanama which is

erroneous and not proper. The Trial Court ought not to have

acted upon such FIR and cognizance should not have been

taken on the strength of the said FIR. However, the Trial Court

and the Appellate Court have committed error by considering

the said FIR as appropriate and proper and recorded the

conviction. Such conviction would be rendered as ineffective

and the same can be termed as non est in law.

17. When the registration of FIR itself is void abinitio,

the subsequent proceedings including the judgments are liable

to be set aside. Therefore, the interference by the Revisional

Court in setting aside the concurrent findings is justified.

18. In the light of the observations made above, I

proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction dated

26.12.2015 and order of sentence dated

29.12.2015 in C.C.No.332/2009 on the file

of Civil Judge and JMFC, Hunsur and its